State v. Carrillo
| Decision Date | 24 June 2022 |
| Docket Number | 124,298 |
| Parties | STATE of Kansas, Appellee, v. Gustavo Augusto CARRILLO, Appellant. |
| Court | Kansas Court of Appeals |
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Viet Q. Le, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Green and Gardner, JJ.
Gustavo Augusto Carrillo challenges his sentence. Based on the Kansas Sentencing Guidelines Act, Carrillo's sentence for aggravated assault was presumptive probation, but a special rule in K.S.A. 2020 Supp. 21-6804(h) changes that presumption to imprisonment if the defendant commits any person felony with a firearm. But the district court may still order probation if it makes certain findings on the record. Carrillo argues that the district court did not understand that it could order probation because it erroneously stated it could not find "substantial and compelling reasons to depart." We agree that the district court misspoke yet we find no reversible error in this respect. Carrillo also argues that K.S.A. 2020 Supp. 21-6804(h) violates Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), but the Kansas Supreme Court has previously rejected this argument. We thus dismiss this appeal.
The State charged Gustavo Augusto Carrillo with aggravated assault, criminal possession of a firearm, three counts of criminal threat, two counts of criminal damage to property, stalking, theft, harassment by telephone, four counts of domestic battery, and two counts of criminal trespass. These charges stem from encounters with his ex-girlfriend, Vanesa Sanchez, the mother of his infant child. Some of the charges stem from actions Carrillo took near or toward his infant child.
At Carrillo's plea hearing, the district court conducted a thorough plea colloquy. The district court told Carrillo: (1) it did not have to accept the proposed plea agreement; (2) the maximum prison sentences and fees the district court could sentence him to; (3) what his potential criminal history score could be and how the sentencing grid works; and (4) about postrelease supervision.
Carrillo pleaded guilty to one count of aggravated assault with a deadly weapon, one count of criminal threat, two counts of domestic battery, and one count of endangering a child. The State proffered the factual basis for each crime. For aggravated assault, the State said:
The plea agreement included Carrillo's agreement to a no contact order with the victim. It provided that the counts would run consecutively, that the State would recommend the aggravated box, and that Carrillo agreed to serve 60 days of "shock time" as a condition to probation. In exchange for Carrillo's plea, the State agreed to dismiss the remaining charges in this case and to dismiss case 2020 CR 0777. The plea agreement also stated that Carrillo fully understood that (1) the plea agreement did not bind the district court, (2) the court could reject the agreement, (3) the court could impose any sentence within the statutory limits, and (4) the court could grant or deny probation independently of the agreement between Carrillo and the State.
The district court told Carrillo at the plea hearing that the law required him to register with the Wyandotte County Sheriff's Office for 15 years because of the special rule about aggravated assault with a deadly weapon. The district court also informed Carrillo that the law requires that any time a crime is committed with a deadly weapon, the presumptive sentence is prison, and that the law permits his attorney to move for a departure or to ask the court to impose probation instead of prison.
At the sentencing hearing, the State asked the district court not to follow the plea agreement's recommendation of probation because Carrillo had violated the agreement by trying to contact Sanchez. Instead, the State asked the district court to impose the aggravated 13-month sentence for aggravated assault and a 7-month sentence for criminal threat.
Carrillo agreed with the presentence investigation report showing his criminal history score was I. The district court asked Carrillo's counsel whether he filed a motion to depart because the deadly weapon charge was "mandatory prison," but the court swiftly rephrased stating, "it's—recommendation is prison." Carrillo's counsel responded he did not know Carrillo's sentence was presumptive prison or subject to a special rule, and he did not think he needed to file an actual motion. The district court corrected him, stating "the law says a motion shall be filed." Carrillo's counsel stated he would file such a motion after the hearing, yet he never did so. The record shows Carrillo's counsel did not file a motion to depart or for reconsideration after sentencing.
Carrillo asked the district court to follow the plea agreement because he had no contact with Sanchez. Carrillo's counsel argued that the only potential contact the State had shown was two incomplete phone calls made from Carrillo's jail PIN number to Sanchez’ phone number. Yet no contact had occurred because Sanchez did not answer. Later, Carrillo told the district court he was remorseful for what had happened and was taking responsibility for his crimes.
The district court found that Carrillo's attempts to call Sanchez were enough to breach the plea agreement's no contact clause, so it chose not to follow the plea agreement's recommendation of probation. It then stated that because Carrillo had violated the plea agreement, it found no "substantial and compelling reasons to depart to probation in this case."
The district court ordered the felony counts to run consecutively and the misdemeanor counts to run concurrently with each other and with the felony counts, for a controlling sentence of 20 months’ imprisonment. The district court also imposed a mandatory 15-year registration requirement under KORA for Carrillo's aggravated assault conviction, and stated that each domestic battery conviction included a mandatory $200 fine.
The district court marked the box for special sentencing rule #1 on the journal entry, indicating the defendant had used a deadly weapon while committing a person felony. The same box was also checked on the presentence investigation report provided by the State. The district court also checked the journal entry box showing Carrillo must register as a violent offender because he committed a person felony with a firearm.
Carrillo timely appeals.
Carrillo concedes appellate courts generally cannot review a presumptive sentence, such as he received. K.S.A. 2020 Supp. 21-6820(c) provides that an appellate court shall not review on appeal a sentence for a felony committed after July 1, 1993, that is (1) within the presumptive Guidelines sentence for the crime, or (2) the result of a plea agreement between the State and the defendant which the district court approved on the record. See State v. Kinder , 307 Kan. 237, 239-40, 408 P.3d 114 (2018) (). Additionally, under K.S.A. 2020 Supp. 21-6804(q), "[a]ny decision made by the court regarding the imposition of an optional nonprison sentence shall not be considered a departure and shall not be subject to appeal."
But if a district court misinterprets its own authority to impose a sentence, the appellate court may take up the limited question of whether the district court properly interpreted the sentencing statute in sentencing the defendant. See Kinder , 307 Kan. at 240. Carrillo relies on this exception.
K.S.A. 2020 Supp. 21-6804(h) provides: K.S.A. 2020 Supp. 21-6804(q) provides:
Whether a defendant used a firearm in the commission of a crime—which triggers a presumptive prison sentence—is a matter to be determined by the district court at sentencing, and an appellate court must affirm such determination if it is supported by competent evidence. State v. Craddick , 49 Kan. App. 2d 580, 581, 311 P.3d 1157 (2013). But Carrillo does not argue that the district court failed to find on the record that he used a firearm while committing aggravated assault. See K.S.A....
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