COURT OF APPEALS OF VIRGINIA

Present: Judges Alston, Chafin and Senior Judge Annunziata Argued at Alexandria, Virginia

CARROLL EDWARD GREGG, JR. OPINION BY v. Record No. 0047-16-4 JUDGE TERESA M. CHAFIN FEBRUARY 28, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAUQUIER COUNTY Herman A. Whisenant, Jr., Judge Designate Blair D. Howard (Christopher T. Whelan; T. Br ooke Howard, II; Howard, Morrison, Ross and Wh elan; Howard & Howard, on briefs), for appellant. Virginia B. Theisen, Senior A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Following a jury trial, Carroll Edward Gregg, Jr. (“appellant”) was convicted of common law involuntary manslaughter and involuntary mansla ughter in violation of Code § 18.2-154, or “unlawfully shooting at an occupied vehicle wherein death resulted.” 1 The jury fixed appellant’s punishment at ten years in pris on for each conviction, and the trial court sentenced appellant accordingly. On appeal, appellan t argues that his rights agains t double jeopardy were violated

because he was convicted of and sentenced fo r both statutory involuntary manslaughter and common law involuntary manslaughter. For the reasons that follow, we reverse the trial court’s imposition of consecutive sentences for each offense and remand for proceedings consistent with this opinion.

1 The jury acquitted appellant of use of a firearm in the commission of murder.PUBLISHED- 2 - Background On appellate review, we consider the evid ence presented at trial in the light most favorable to the Commonwealth, the prevailing part y below, and “accord [ it] the benefit of all inferences fairly deducible from the ev idence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as follows. On the night of June 4, 2014, L&K Recovery attempted to repossess a truck on behalf of appell ant’s creditors pursuant to a repossession order. Junior Montero Sanchez (“Sanchez”), an empl oyee of L&K Recovery, drove a tow truck to appellant’s home. Alex Marin (“Marin”), also employed by L& K Recovery, drove a separate

vehicle to that location. The two men verified the VIN number on the tr uck and then connected

it to the tow truck. When Marin used a lockout tool to open th e door of the truck, its alarm system was activated. Marin heard a man yell out the window , “You better get the F out of here.” Sanchez

drove the tow truck down the driv eway, with Marin following in the other vehicle, and stopped at the end of the driveway to check his GPS for directions. As Sanchez was turning out of the driveway, Marin heard “a loud bang, and right after that, [he] heard [Sanchez] screaming.” He then “[saw Sanchez] throw his hands up and . . . [slump] over the steering wheel, and . . . the tow truck going into the ditch.” When Sergeant Darrell Shores spoke with appell ant, he stated that he had accidentally shot the tow truck driver. Appellant stated that he “shot [at the to w truck], then he fell, then he shot again.” He also stated that “[repossession teams] should not be allowed to do this in the middle of the night.” Appellant was charged with murder, without express designation of degree, use of a firearm in the commission of murder, and involun tary manslaughter by shooting into an occupied- 3 - vehicle causing death in violation of Code § 18.2-154. Appellant moved to dismiss the indictment, contending that convi ctions of both the homicide offe nses would violate the Double Jeopardy Clause. Specifically, appellant argued th at the charges were not separate offenses under Blockburger v. United States, 284 U.S. 29 9 (1932). Appellant also argued that the legislature had not established that it intende d to impose separate punishments for each offense when they were based on the same underlying conduct. The trial court heard argument on the motion and withheld its ruling “until after the dete rmination of guilt or innocence by the jury.” At the conclusion of the evidence, the jury wa s instructed on the offense of “maliciously shooting at an occupied vehicle with death re sulting.” Instruction No. 15 provided for a second-degree murder conviction if the jury found that the Commonwealth had proven:

1. That the defendant shot at a vehicle; and 2. That such vehicle was occupied by one or more persons; and 3. That, as a result, the life of a person in such vehicle may have been put in peril; and 4. That the act was done with malice; and 5. That the death resulted from such malicious shooting. The instruction additionally prov ided that if the jury found th at the Commonwealth had proven the first three elements, but found “that the act was done unlawfully and not maliciously, and,

further that death resulted from such unlawful shooting,” the jury should find appellant guilty of involuntary manslaughter.

Instruction No. 20 addressed the charge of common law murder and provided for a first-degree murder conviction if the jury found that the Commonwealth had proven that appellant killed Sanchez intentionally, malic iously, willfully, deliberately, and with premeditation. It further instructed that if the jury found that the Commonwealth had established that the killing “although uninte nded, was the direct result of th e negligence of the defendant, and so gross, wanton and culpable as to show a callous disregard of hu man life,” it should find appellant guilty of involuntary manslaughter.- 4 - The jury determined that appellant was guilty of involuntary manslaughter and “unlawfully shooting at an occupied vehicle wh erein death resulted, invol untary manslaughter.” The jury fixed appellant’s sentence at ten years in prison for each of the involuntary manslaughter convictions. Appellant filed a post-trial double jeopar dy motion. Appellant acknowledged that Code § 18.2-154 did not use the term “criminal ne gligence.” He argued, however, that every case involving a non-malicious violation of Code § 18.2-154 always involved criminal negligence. Thus, appellant argued that every violation of Code § 18.2-154 that did not involve

malice was also a violation of co mmon law involuntary manslaughter.

The Commonwealth countered that the elemen ts of the two crimes were different when analyzed under the double jeopar dy test articulated in Blockbur ger. The Commonwealth noted that common law involuntary manslaughter was an accidental killing with criminal negligence. Under Code § 18.2-154, however, there was no requi rement to prove criminal negligence. Further, the Commonwealth argued that Code § 18.2-154 required pr oof of shooting at a vehicle.

The trial court concluded that the two o ffenses contained different elements under Blockburger and denied the motion. Appellant then filed a moti on to reconsider the trial c ourt’s double jeopardy ruling, contending that under this Court’s en banc decision in Holley v. Commownealth, 64 Va. App. 156, 765 S.E.2d 873 (2014) ( en banc ), the two involuntary mansla ughter convictions could not stand. He argued that a Blockbur ger analysis was unnecessary where legislative intent could be discerned by looking at the language in the statutes or the legislat ive history of the statutes in question. He further argued that under a comm on law unitary prosecution theory, wherein one victim and one death equal one offense, onl y one punishment could have been imposed.- 5 - Appellant maintained, as he does on appeal, that the legisl ative history of Code § 18.2-154 established that the General Assembly did not intend for cumulati ve punishments under Code § 18.2-154 and common law involuntary manslaughter. In response, the Commonwealth argued th at Holley was not controlling. Holley, the Commonwealth contended, involved se parate provisions of a singl e statute that adopted common law homicide. Thus, unlike Code § 18.2-154, th e statute implicated the common law unitary theory of homicide. The Commonwealth also argued that separate punishments were permitted

because the two offenses contained different elements under Blockburger. The trial court determined that Holley was distinguishable and denied the motion. Analysis On appeal, appellant contends that the trial court erred in imposing separate sentences for

his convictions of common law involuntary manslaughter and stat utory involuntary manslaughter under Code § 18.2-154. To resolve this question, we must first determine whether the General Assembly intended for multiple sentences to be available in this instance.

I. Double Jeopardy The Fifth Amendment guarantees that no person “shall . . . for the same offense . . . be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “The constitutional provision concerning double jeopardy embodies three guarant ees: ‘(1) “It protec ts against a second prosecution for the same offense after acquittal. [( 2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.”’” Blythe v. Common wealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981) (alterations in original) (quo ting Illinois v. Vitale, 447 U.S. 410, 415 (1980)). See also Clagett v. Commonwealth, 252 Va. 79, 95-96, 472 S.E.2d 263, 272-73 (1996). Appellant’s argument on appeal involves the third protecti on, prohibiting multiple punishments for a single- 6 - offense. “[T]he role of the constitutional guara ntee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Blythe, 222 Va. at 725, 284 S.E.2d at 798 (quoti ng Brown v. Ohio, 432 U.S. 161, 165 (1977)). When both of a defendant’s convictions occur in a single trial, the question of whether multiple punishments are unconstitutional “cannot be resolv ed without determining what punishments the Legislative Branch has authorized.” Id. (quoting Whalen v. United States, 445 U.S. 684, 688 (1980)). “The question resolves it self, therefore, into one of legi slative intent wh ere the issue is whether ‘the Legislative Branch’ has provided that two offenses ma y be punished cumulatively.” Id. at 726, 284 S.E.2d at 798. Appellate courts must “first c onsider whether ‘the legislative intent is clear from the face of the statute or the legisl ative history . . . .’” Andr ews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). In the absence of explicit or implicit statements of legi slative intent, reviewing courts must determine the legislative authorization by examining the releva nt statutes. “[T]he test to be applied to

determine whether there are two offenses or onl y one is whether each [offense charged] requires proof of an additional fact which the othe r does not.” Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (second alteration in original) (quoting Blockburger, 284 U.S. at 304). Appellant contends that th e General Assembly did not intend for a defendant to be punished cumulatively for common law involuntary manslaughter and the statutory manslaughter offense included in Code § 18.2-154. Where legisla tive intent is evident from the face of the statute or the legislative history, it is not necessary to employ the test set forth in Blockburger to determine whether a court can impose multiple punishments for a single act. Holley, 46- 7 - Va. App. at 163, 765 S.E.2d at 876. However, when le gislative intent is not expressly stated, we must rely on the Blockburger test. a. Legislative Intent “When construing a statute, our primary object ive is ‘to ascertain and give effect to legislative intent,’ as expresse d by the language used in the st atute.” Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)). “To best ascertain that intent, ‘[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language.’” Blake v. Common wealth, 288 Va. 375, 381, 764 S.E.2d 105, 107 (2014) (quoting Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)). Where a legislature intends to impose multiple punishments for the same course of conduct, the imposition of multiple punishments doe s not violate the Constitution. See Missouri v. Hunter, 459 U.S. 359, 366-68 (1983); Albernaz v. United States, 450 U. S. 333, 344 (1981). For instance, the Supreme Court of Virginia determined that the legislature intended to impose multiple punishments for the same course of conduct when a defendant is sentenced for felony homicide under Code § 18.2-33 and aggravat ed involuntary manslaughter under Code § 18.2-36.1(B) for killing one vict im. The Court stated that [c]learly, the language in Code § 18.2-36.1(C) stating that “[t]he provisions of this section shall not preclude prosecution under any other homicide statute” expresses the legislative intent for multiple punishments. Code § 18.2-36.1(C) does not make an exception for a prosecution under a statute that was previously a common law crime. Code § 18.2-33 is a homicide statute; it defines the elements and states the punishment for felony homicide. Code § 18.2-36.1(C) specifically states th at prosecution for aggravated involuntary manslaughter does not preclude prosecution under another homicide statute such as Code § 18.2-33.- 8 - Payne v. Commonwealth, 277 Va. 531, 539-40, 674 S.E.2d 835, 839 (2009). Thus, there was a clear legislative intent to a llow convictions under both theori es. Id. at 538-39, 674 S.E.2d at

838-39. In Holley, the defendant was charged with bot h first-degree murder and second-degree murder for killing one person. When considering the legislative intent behind the passing of the statute that was to become Code § 18.2-32, 2 this Court determined that the General Assembly

did not intend to set aside common-law rule s for single-homicide punishment by making the punishment more severe. Instead, the enactment of the statute mitigated the harshness of the common law’s punishment for murder. This Court stated that, “[i]n adop ting the predecessor to Code § 18.2-32, the General Assembly articulated its purpose, ‘The several offen[s]es which are included under the general denomination of murd er, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment.’” Holley, 64 Va. App. at 163, 765 S.E.2d at 876 (quoting 1796 Va . Acts ch. 2). The pr edecessor to Code § 18.2-32 was enacted “to mitigate the harshness of the common law which punished murder and

numerous other crimes with death.” Id. at 164, 765 S.E.2d at 876 (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 636, 292 S.E.2d 798, 810 (1982)). Therefore, this Court held that

2 Code § 18.2-32 states: Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in th e commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burgl ary or abduction, except as provided in [Code] § 18.2-31, is murder of the first degree, punishable as a Class 2 felony. All murder other than capital murd er and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.- 9 - the General Assembly did not intend to allo w cumulative punishments for multiple murder offenses based on one underlying death. Thus, th is Court concluded th at the Double Jeopardy Clause prohibited the defendant’s conviction and punishment for both first-degree and second-degree murder. In this case, there is no clear legislative intent to allow convictions under both common law involuntary manslaughter and Code § 18.2-1 54. Code § 18.2-154 is clear, however, that when a person unlawfully shoots at a vehicle, and th e occupant is put in pe ril and death results, that person is guilty of involuntary manslaughter. While common law involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. The Supreme Cour t has explained the elements of involuntary manslaughter as follows:

The crime of common law invol untary manslaughter has two elements: (1) the accidental kill ing of a person, contrary to the intention of the parties; and (2) th e 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 “impr oper” performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Noakes v. Commonwealth, 54 Va. App. 577, 585, 681 S.E.2d 48, 52 (2009) (quoting West v. Dir., Dep’t of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007) (internal citations omitted)), aff’d, 280 Va. 338, 699 S.E.2d 284 (2010). Code § 18.2-154 states, in pertinent part, [a]ny person who maliciously shoots at . . . any motor vehicle or other vehicles when occupied by one or more persons, whereby the life of any person . . . in such mo tor vehicle or other vehicle, may be put in peril, is guilty of a Class 4 felony. . . . If any such act is committed un lawfully, 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 guilt y of involuntary manslaughter.- 10 - There is no evidence in th e legislative history of C ode § 18.2-154 or case law that suggests that the General Assembly intended to create an offense separa te and distinct from common law involuntary manslaughter, or to permit the Commonwealth to obtain multiple convictions and punishments under Code § 18.2- 154 and common law invol untary manslaughter for a single killing. The enactment of Code § 18.2-154 did not make the punishment for involuntary manslaughter more severe, nor does it mitigate the punishment when the criminally negligent act leading to the death of an individual is shooting at an occupied vehicle. Code § 18.2-154 simply created a mechanism that permits the Commonwealth to substitute proof of distinct facts in place of crimin al negligence. The predicate fact s of an unlawful shooting at an occupied vehicle resulting in deat h would always constitute crimin al negligence, and therefore, a person committing that offense “ is guilty of involuntary manslaughter.” Code § 18.2-154 (emphasis added). As the language of Code § 18.2-154 is unambiguous, “we are bound by the plain meaning of that language.” Blake, 288 Va. at 381, 764 S.E.2d at 107 (quoting Kozmina, 281 Va. at 349, 706 S.E.2d at 862). b. Blockburger Even though the intent of the legislature is clear in this case, an alysis under Blockburger would not produce a different result. In determining whether a defendant who has been convicted of two offenses may receive multiple punish ments, the test to be applied is “whether each [offense] requires proof of a fact which the other does not.” Blockburger v. Un ited States, 284 U.S. 299, 304 (1932); Brown, 432 U.S. at 166; Commonwealth v. Hudgins, 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005); Alston v. Commonwealth, 264 Va. 433, 438, 570 S.E.2d 801, 804 (2002); Coleman, 261 Va. at 200, 539 S.E.2d at 734. In applying this test, the two offenses must be considered in the abstract, rather than in the context of the fact s of the particular case being reviewed. Whalen v. United States, 445 U.S. 684, 694 n.8 (1980); Hudgins,- 11 - 269 Va. at 606, 611 S.E.2d at 365; Coleman, 261 Va. at 200, 539 S.E.2d at 734. West, 273 Va. at 63, 639 S.E.2d at 195 (alteration in original). When reviewed in the abstract, the charges in the present case do not qualify as separate offenses within the meaning of Blockburge r. The offense of common law involuntary manslaughter does not require proof of a fact different from t hose required for a conviction of involuntary manslaughter under Code § 18.2-154. See West, 273 Va. at 63-64, 639 S.E.2d at

194-96. 3 Because the element of shooting at an occupied vehicle in Code § 18.2-154 is simply the criminally negligent act which renders the accused guilty of involuntary manslaughter, we cannot say that Code § 18.2-154 requ ires proof of a fact that is not required to prove the common law crime of involuntary manslaughter. Convictions for both these offenses resulted in appellant receiving multiple punishments for the same offe nse, and thus, the Double Jeopardy Clause was

violated.

Conclusion

We conclude that the Commonwealth was fr ee to instruct the ju ry on both common law involuntary manslaughter and involuntary mansla ughter by shooting into an occupied vehicle causing death under Code § 18.2-154. The Commonw ealth, however, could not seek sentences

3 West involved a defendant who was convi cted of both aggravated involuntary manslaughter in violation of Code § 18.2- 36.1 and common law involuntary manslaughter. West, 273 Va. at 59-60, 639 S.E.2d at 193. The defendant was sentenced to concurrent sentences for the involuntary manslaughter conv ictions. Id. at 60, 639 S. E.2d at 193. He argued on appeal that he was denied effective assi stance of counsel because no double jeopardy challenge was raised to his convictions of a ggravated involuntary ma nslaughter and common law involuntary manslaughter. Id. at 59-61, 639 S.E.2d at 193-94. The Supreme Court held that the charges were not separate offenses under Blockburger. Common law involuntary manslaughte r did not require proof of a fact different from those required for aggravated involunt ary manslaughter. Id. at 63-64, 639 S.E.2d at 194-96. The Court held that the defendant was entitled to a writ of habeas cor pus with regard to his common law involuntary manslaughter convic tion. Id. at 67, 639 S.E.2d at 197.- 12 - for both convictions. See Andrews, 280 Va. at 287-88, 699 S.E.2d at 269 (“[I]f the

Commonwealth obtains convictions on both [instructions] it may not seek to have separate punishments imposed for each offense. Rather it must elect which [finding of guilt] it will proceed upon in the penalty-determination phase of the trial.”). See also Clagett, 252 Va. at 95-96, 472 S.E.2d at 272-73. The imposition of tw o ten-year sentences upon appellant for convictions under Code § 18.2-154 and for common law involuntary manslaughter violated the double jeopardy prohibition against multiple punishments for the same offense. See id. For the reasons stated above, we remand this case for a new penalty-determination proceeding wherein the circuit court shall re quire the Commonwealth to elect between the convictions under Code § 18.2-154 and common law ma nslaughter. The trial court, thereafter,

shall vacate the other conviction.

Reversed and remanded.