PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA

 OPINION BY

v. Record No. 170586 JUSTICE STEPHEN R. McCULLOUGH

 April 5, 2018 

CARROLL EDWARD GREGG, JR.

FROM THE COURT OF APPEALS OF VIRGINIA

 Carroll Edward Gregg was convicted of common law involuntary manslaughter as well 

as involuntary manslaughter under Code § 18.2-154. In a published opinion, the Court of 

Appeals of Virginia concluded that Gregg could not be sentenced for both offenses. See Gregg 

v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447 (2017). It reversed and remanded for a new 

sentencing proceeding, to be held after the Commonwealth elected which conviction it would 

seek to have sentence imposed on. The Commonwealth appeals from this judgment. For the 

reasons explained below, we will affirm the judgment of the Court of Appeals. 

BACKGROUND

 The victim, Junior Montero Sanchez, was in the process of repossessing Gregg’s truck 

when Gregg shot and killed him. The autopsy report reflected that Sanchez sustained a single 

gunshot wound to the back, which fatally damaged Sanchez’s lung and heart. The shooting 

occurred around midnight on June 5 or 6, 2014. Gregg acknowledged shooting Sanchez, but 

stated it was an accident.

 A grand jury indicted Gregg for first-degree murder, use of a firearm in the commission 

of murder, and shooting into an occupied vehicle and causing the death of another in violation of 

Code § 18.2-154. In a jury trial, the court instructed the jury on first-degree murder, second 

degree murder, common law involuntary manslaughter, as well as involuntary manslaughter 
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under Code § 18.2-154. The jury convicted Gregg of both common law involuntary 

manslaughter and involuntary manslaughter under Code § 18.2-154. Gregg moved to dismiss 

one of the charges, contending that the Double Jeopardy Clause precluded a conviction for both 

manslaughter offenses. The trial court denied the motion. 

 On appeal, the Court of Appeals of Virginia reversed, holding that Gregg could not be 

convicted of both common law involuntary manslaughter and involuntary manslaughter under 

Code § 18.2-154. Gregg v. Commonwealth, 67 Va. App. 375, 387-88, 796 S.E.2d 447, 454 

(2017). We granted the Commonwealth an appeal from the decision of the Court of Appeals. 

ANALYSIS

We review de novo whether “multiple punishments have been imposed for the same 

offense in violation of the double jeopardy clause.” Johnson v. Commonwealth, 292 Va. 738, 

741, 793 S.E.2d 321, 322 (2016) (quoting Lawlor v. Commonwealth, 285 Va. 187, 227, 738 

S.E.2d 847, 870 (2013)). 

The Code of Virginia does not define the elements of common law involuntary 

manslaughter. Under our case law,

the crime of common law involuntary manslaughter has two 

elements: (1) the accidental killing of a person, contrary to the 

intention of the parties; and (2) the death occurs in the defendant’s 

prosecution of an unlawful but not felonious act, or in the 

defendant’s improper performance of a lawful act. To constitute 

involuntary manslaughter, the “improper” performance of a lawful 

act must amount to an unlawful commission of that lawful act, 

manifesting criminal negligence.

West v. Dir., Dep’t of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007) (citations omitted). 

Code § 18.2-36 specifies that this crime is punishable as a Class 5 felony.

 Code § 18.2-154 provides in relevant part: 
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Any person who maliciously shoots at, or maliciously 

throws any missile at or against, any train or cars on any railroad or 

other transportation company or any vessel or other watercraft, or 

any motor vehicle or other vehicles when occupied by one or more 

persons, whereby the life of any person on such train, car, vessel, 

or other watercraft, or in such motor vehicle or other vehicle, may 

be put in peril, is guilty of a Class 4 felony. In the event of the 

death of any such person, resulting from such malicious shooting 

or throwing, the person so offending is guilty of murder in the 

second degree. However, if the homicide is willful, deliberate, and 

premeditated, he is guilty of murder in the first degree.

If any such act is committed unlawfully, but not 

maliciously, the person so offending is guilty of a Class 6 felony 

and, in the event of the death of any such person, resulting from 

such unlawful act, the person so offending is guilty of involuntary 

manslaughter. 

(emphasis added).

The Double Jeopardy Clause of the United States Constitution provides that no person 

shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. 

amend. V. “This constitutional provision guarantees protection against (1) a second prosecution 

for the same offense after acquittal; (2) a second prosecution for the same offense after 

conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth, 257 

Va. 216, 227, 509 S.E.2d 293, 300 (1999). See Illinois v. Vitale, 447 U.S. 410, 415 (1980); 

North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “In the single-trial setting, ‘the role of the 

constitutional guarantee is limited to assuring that the court does not exceed its legislative 

authorization by imposing multiple punishments for the same offense.’” Blythe v. 

Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio, 432 

U.S. 161, 165 (1977)). 

“When considering multiple punishments for a single transaction, the controlling factor is 

legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983). 
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See also Albernaz v. United States, 450 U.S. 333, 344 (1981) (“[T]he question whether 

punishments imposed by a court after a defendant’s conviction upon criminal charges are 

unconstitutionally multiple cannot be resolved without determining what punishments the 

Legislative Branch has authorized.”) (quoting Whalen v. United States, 445 U.S. 684, 688 

(1980)). 

The Blockburger test, drawn from Blockburger v. United States, 284 U.S. 299 (1932), is 

simply a “rule of statutory construction” used to inform the constitutional issue. Whalen, 445 

U.S. at 691; see also Missouri v. Hunter, 459 U.S. 359, 366 (1983). It asks whether each 

statutory offense requires proof of a fact that the other does not. “The assumption underlying the 

rule is that [the legislature] ordinarily does not intend to punish the same offense under two 

different statutes.” Whalen, 445 U.S. at 691-92. The very presence of dissimilar elements within 

two statutory offenses, provides “a clear indication of contrary legislative intent.” Id. at 692. 

“[B]efore applying the Blockburger test, we first consider whether ‘the legislative intent is clear 

from the face of the statute or the legislative history,’ and if so, then ‘the Blockburger rule is not 

controlling.’” Andrews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) 

(quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). 

Where . . . a legislature specifically authorizes cumulative 

punishment under two statutes, regardless of whether those two 

statutes proscribe the “same” conduct . . . , a court’s task of 

statutory construction is at an end and the prosecutor may seek and 

the trial court or jury may impose cumulative punishment under 

such statutes in a single trial.

Hunter, 459 U.S. at 368-69. If the legislature expressly declares its will to inflict multiple 

punishments on the same conduct, the courts must respect its intent to do so—even if the two 

statutory offenses fail the Blockburger test. Id. at 368. See also Dalo v. Commonwealth, 37 Va. 

App. 156, 165-69, 554 S.E.2d 705, 709-11 (2001), aff’d, 264 Va. 431, 570 S.E.2d 840 (2002). 
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The General Assembly will at times specify in the statutory text that a prosecution under 

a particular Code provision does not foreclose a prosecution under a different statute. These 

provisions manifest a clear legislative intent that prosecution for one crime does not foreclose 

prosecution for another crime, however similar or even identical that crime might be. For 

example, the carjacking statute, Code § 18.2-58.1, provides that “[t]he provisions of this section 

shall not preclude the applicability of any other provision of the criminal law of the 

Commonwealth which may apply to any course of conduct which violates this section.” Code § 

18.2-58.1(C). Other statutes state that “[t]he provisions of this section shall not preclude 

prosecution under any other statute.” See, e.g., Code § 18.2-51.7(E) (female genital mutilation); 

Code § 18.2-204.1(E) (fraudulent use of birth certificates). Such language “expresses the 

legislative intent for multiple punishments.” Payne v. Commonwealth, 277 Va. 531, 539, 674 

S.E.2d 835, 839 (2009). See also Turner v. Commonwealth, 221 Va. 513, 530, 273 S.E.2d 36, 47 

(1980) (concluding that the General Assembly intended to punish both capital murder during the 

commission of robbery while armed with a deadly weapon under Code § 18.2-34(4) and the use 

of a firearm in the commission of a felony under Code § 18.2-53.1, because the latter statute 

expressly provided that the offense it defined “shall constitute a separate and distinct felony” 

from the predicate offense).

 We also note that in other statutes the General Assembly has manifested the opposite 

intent, i.e. to foreclose multiple prosecutions under separate statutes. See Code § 18.2-415 

(providing that “conduct prohibited under subdivision A, B or C of this section shall not be 

deemed . . . to include conduct otherwise made punishable under this title.”). See Battle v. 

Commonwealth, 50 Va. App. 135, 140-41, 647 S.E.2d 499, 501-02 (2007) (reversing conviction 

under Code § 18.2-415 because the conduct at issue could have been prosecuted under other 
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statutes). Another example is Code § 19.2-294.1, which provides that “[w]henever any person is 

charged with a violation of [driving a motor vehicle while intoxicated under] § 18.2-266 . . . and 

with reckless driving in violation of § 46.2-852 . . . growing out of the same act or acts and is 

convicted of one of these charges, the court shall dismiss the remaining charge.” 

Finally, some statutes, despite the absence of express language in the text of the statute

authorizing or forbidding multiple prosecutions, nevertheless evince a legislative intent to 

impose multiple punishments. For example, in Payne, we concluded that the capital murder 

statute, Code § 18.2-31, demonstrated a legislative intent to establish multiple offenses and that 

“each statutory offense [should] be punished separately ‘as a Class 1 felony.’” 257 Va. at 228, 

509 S.E.2d at 301. That language in question provided that “[t]he following offenses shall 

constitute capital murder, punishable as a Class 1 felony.” Id. at 227, 509 S.E.2d at 300. Each 

predicate, therefore, constituted a distinct “offense.” 

 With these principles in mind, we turn to the question before us. The General Assembly 

has determined that when a person commits the acts proscribed by Code § 18.2-154 and does so 

unlawfully but not maliciously, and a death results from the unlawful act, that person “is guilty 

of involuntary manslaughter.” The General Assembly did not draw a distinction between species 

of involuntary manslaughter – both common law involuntary manslaughter and involuntary 

manslaughter under Code § 18.2-154 constitute one crime of involuntary manslaughter. The 

defendant’s mental state and his acts are the same for both common law involuntary 

manslaughter and manslaughter under Code § 18.2-154, and there is one victim. While not 

dispositive, the General Assembly did not provide in Code § 18.2-154, as it has in other statutes, 

language to the effect that “[t]he provisions of this section shall not preclude the applicability of 

any other provision of the criminal law of the Commonwealth which may apply to any course of 
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conduct which violates this section.” See, e.g., Code § 18.2-58.1(C). We conclude under these 

circumstances that the General Assembly did not intend to permit simultaneous punishment for 

both common law involuntary manslaughter and manslaughter under Code § 18.2-154. 

 The double jeopardy guarantee protects against being “twice put in jeopardy of life or 

limb” for “the same offence.” U.S. Const. amend. V. A conviction under Code § 18.2-154, the 

legislature has determined, is “involuntary manslaughter,” and common law involuntary 

manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code § 

18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore 

conclude that Gregg was twice convicted and sentenced in the same trial of the same offense, 

namely, involuntary manslaughter, in violation of the Double Jeopardy Clause.∗

CONCLUSION

We will affirm the judgment of the Court of Appeals with instructions to remand the case 

to the trial court to allow the Commonwealth to elect between the sentences for common law 

involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. See Andrews, 

280 Va. at 288, 699 S.E.2d at 270. Following this election, the trial court shall thereafter vacate 

the other sentence. 

Affirmed and remanded. 

 ∗ Our conclusion obviates the need to undergo the Blockburger analysis of involuntary 

manslaughter under Code § 18.2-154 and common law involuntary manslaughter.