PRESENT: Hassell, C.J., Lacy, Keenan, Kinser*

, Lemons, Koontz, 

and Agee, JJ. 

JAMES DARRELL WEST 

v. Record No. 052263 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 12, 2007 

DIRECTOR OF THE 

DEPARTMENT OF CORRECTIONS 

UPON A PETITION FOR A WRIT OF HABEAS CORPUS 

This petition for a writ of habeas corpus was filed under 

our original jurisdiction. We consider whether the petitioner, 

James Darrell West, is entitled to relief for his claim that he 

was denied his Sixth Amendment right to effective assistance of 

counsel. West bases his claim on counsel’s failure to raise at 

trial a double jeopardy challenge to West’s convictions of both 

aggravated involuntary manslaughter and involuntary manslaughter. 

I. Proceedings 

West was indicted for aggravated involuntary manslaughter of 

Burlia Gene Jenkins, Jr., in violation of Code § 18.2-36.1, 

common law involuntary manslaughter of Jenkins, punishable under 

Code § 18.2-36, and operating a motor vehicle while under the 

influence of alcohol (DUI), in violation of Code § 18.2-266. 

West was convicted of these offenses after a bench trial in the 

Circuit Court of Henrico County. 

The circuit court sentenced West to ten years’ imprisonment 

with five years suspended for the aggravated involuntary 

 * Justice Kinser did not participate in the decision of this 

case. 
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manslaughter conviction, five years’ imprisonment for the common 

law involuntary manslaughter conviction, and a suspended jail 

sentence of 30 days for the DUI conviction. The circuit court 

ordered that the sentences for aggravated involuntary 

manslaughter and common law involuntary manslaughter be served 

concurrently. 

 The Court of Appeals affirmed West’s convictions. West v. 

Commonwealth, 43 Va. App. 327, 597 S.E.2d 274 (2004). We 

affirmed the Court of Appeals’ judgment by order, holding that 

the Court of Appeals correctly concluded West did not preserve at 

trial the double jeopardy argument he asserted on appeal. West 

v. Commonwealth, Record No. 041641 (March 18, 2005). 

 West filed a petition for a writ of habeas corpus in this 

Court invoking our original jurisdiction under Code § 8.01-654. 

We placed this proceeding on our privileged docket, limited to 

the following question: 

Was counsel’s failure to object to petitioner’s convictions 

for both involuntary manslaughter and aggravated 

involuntary manslaughter as violating double jeopardy 

prejudicial within the meaning of Strickland v. Washington, 

466 U.S. 668 (1984), and, if so, can this Court grant 

relief where the remedy will not result in petitioner’s 

release from prison as his sentences are being served 

concurrently? 

II. Facts 

 On April 17, 2002, Burlia Gene Jenkins, Jr. died from 

injuries sustained in a car accident. The accident occurred when 

the vehicle West was driving struck the rear of Jenkins’ truck, 

causing the truck to veer from the road and overturn. Two hours 
3

after the accident, West was given a test to determine his blood 

alcohol content. The test showed that West’s blood alcohol 

content was .10 by weight by volume. 

 At trial, the Commonwealth asserted that the Fifth Amendment 

Double Jeopardy Clause would not bar a conviction for both 

involuntary manslaughter and aggravated involuntary manslaughter. 

The Commonwealth contended that the common law offense of 

involuntary manslaughter was not a lesser-included offense of the 

statutory crime of aggravated involuntary manslaughter. At the 

sentencing hearing, however, the Commonwealth asked that the 

circuit court “let the Court of Appeals determine which conviction 

lies.” 

 In response, West moved to strike the aggravated involuntary 

manslaughter conviction, arguing that the Commonwealth was 

required to “make an election” between that offense and the 

involuntary manslaughter conviction. West did not state, however, 

that his argument rested on constitutional or double jeopardy 

grounds. 

III. Discussion 

 West argues that based on his counsel’s failure to raise a 

double jeopardy objection to his convictions for both aggravated 

involuntary manslaughter and common law involuntary 

manslaughter, he was prejudiced within the meaning of 

Strickland. West contends that absent counsel’s ineffective 
4

assistance, West would not have been convicted of common law 

involuntary manslaughter. He further asserts that if he had not 

been convicted of that offense, he would have qualified under 

the sentencing guidelines provided pursuant to Code § 19.2-

298.01 for a lower recommended sentence on the aggravated 

involuntary manslaughter conviction. Thus, West maintains, the 

circuit court would have imposed a shorter penitentiary 

sentence. 

 In response, the Commonwealth argues that West was not 

prejudiced within the meaning of Strickland because he has 

failed to establish that the circuit court would have imposed a 

lesser punishment had the common law involuntary manslaughter 

charge been dismissed. According to the Commonwealth, because 

the sentencing guidelines are not mandatory, any increase in the 

guideline range of punishment resulting from West’s conviction 

on both manslaughter charges would not support a conclusion of 

prejudice. Alternatively, the Commonwealth argues that even if 

West was prejudiced by counsel’s error, this Court lacks 

jurisdiction to vacate West’s common law involuntary 

manslaughter conviction because such relief would not result in 

his immediate release. 

 In deciding these issues, we first consider whether West 

was denied his Sixth Amendment right to counsel based on 

counsel’s failure to argue at trial that the Fifth Amendment 
5

Double Jeopardy Clause barred West from being convicted of both 

the aggravated involuntary manslaughter and the common law 

involuntary manslaughter charges. The Sixth Amendment right to 

counsel includes the right to the effective assistance of 

counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Strickland 

v. Washington, 466 U.S. 668, 685-86 (1984); Yarbrough v. Warden, 

269 Va. 184, 196, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden, 

266 Va. 216, 248, 585 S.E.2d 801, 820 (2003), cert. denied, 541 

U.S. 1006 (2004). This constitutional guarantee entitles a 

defendant in a criminal trial to reasonably competent counsel 

who provides assistance that is within the range of competence 

required of attorneys in criminal cases. Strickland, 466 U.S. 

at 687; Yarbrough, 269 Va. at 196, 609 S.E.2d at 37; see Wiggins 

v. Smith, 539 U.S. 510, 521 (2003). 

 To prevail on a claim of ineffective assistance of counsel, 

a petitioner ordinarily must satisfy both parts of the two-part 

test stated in Strickland. Strickland, 466 U.S. at 687; 

Yarbrough, 269 Va. at 196, 609 S.E.2d at 37; Lovitt, 266 Va. at 

249, 585 S.E.2d at 820. The petitioner first must show that 

“counsel’s representation fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 687-88; see also

Wiggins, 539 U.S. at 521. In resolving this issue, the court 

reviewing the habeas petition “must indulge a strong presumption 

that counsel’s conduct falls within the wide range of reasonable 
6

professional assistance.” Strickland, 466 U.S. at 689; see also

Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Yarbrough, 269 

Va. at 196, 609 S.E.2d at 37. 

 When a reviewing court concludes that counsel’s performance 

was deficient under the first part of the Strickland test, the 

petitioner is required, under the second part of the Strickland

test, to show that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694; see also Wiggins, 539 

U.S. at 534; Lovitt, 266 Va. at 250. 

 In the present case, we conclude that counsel’s performance 

fell below an objective standard of reasonableness. The Fifth 

Amendment Double Jeopardy Clause provides three guarantees: 1) 

protection against a second prosecution for the same offense 

after acquittal of that offense; 2) protection against a second 

prosecution for the same offense after conviction of that 

offense; and 3) protection against multiple punishments for the 

same offense. Brown v. Ohio, 432 U.S. 161, 165 (1980); North 

Carolina v. Pearce, 395 U.S. 711, 717 (1969); Stephens v. 

Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229-30 (2002); 

Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 

(2001); Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 

300 (1999); Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 
7

796, 797 (1981). In the single-trial context applicable here, 

“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.” Brown, 432 

U.S. at 165; Stephens, 263 Va. at 62, 557 S.E.2d at 230; Coleman, 

261 Va. at 199-200, 539 S.E.2d at 734; Payne, 257 Va. at 227, 509 

S.E.2d at 300; Blythe, 222 Va. at 725, 284 S.E.2d at 798. 

 In determining whether a defendant who has been convicted of 

two offenses may receive multiple punishments, the test to be 

applied is “whether each [offense] requires proof of a fact which 

the other does not.” Blockburger v. United 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 facts of the particular case being 

reviewed. Whalen v. United States, 445 U.S. 684, 694 n.8 (1980);

Hudgins, 269 Va. at 606, 611 S.E.2d at 365; Coleman, 261 Va. at 

200, 539 S.E.2d at 734. 

 We conclude that when viewed in the abstract, the charges in 

the present case do not qualify as separate offenses within the 

meaning of the Blockburger test. The offense of common law 

involuntary manslaughter does not require proof of a fact 

different from those required for a conviction of aggravated 

involuntary manslaughter under Code § 18.2-36.1. 
8

 The statutory offense of aggravated involuntary manslaughter 

has three elements: 1) driving under the influence in violation 

of Code § 18.2-266 or a substantially similar ordinance; 2) 

unintentionally causing the death of another as a result of this 

conduct; and 3) acting in a manner “so gross, wanton and culpable 

as to show a reckless disregard for human life.” Code § 18.2-

36.1; Stevens v. Commonwealth, 272 Va. 481, 487, 634 S.E.2d 305, 

309 (2006). In contrast, 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. Cable v. Commonwealth, 243 Va. 236, 240, 415 

S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 

536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 

571, 311 S.E.2d 780, 784 (1984). To constitute involuntary 

manslaughter, the “improper” performance of a lawful act must 

amount to an unlawful commission of that lawful act, manifesting 

criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; 

Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 

(1947). 

 Because the common law crime of involuntary manslaughter 

does not require proof of a fact that is not also required for a 

conviction of aggravated involuntary manslaughter under Code 

§ 18.2-36.1, convictions for both these offenses resulted in West 

receiving multiple punishments for the same offense. Thus, a 

timely assertion of the bar of double jeopardy would have
9

protected West from receiving multiple punishments for those 

convictions. See Brown, 432 U.S. at 165; Stephens, 263 Va. at 

62, 557 S.E.2d at 230; Coleman, 261 Va. at 199, 539 S.E.2d at 

734; Payne, 257 Va. at 227, 509 S.E.2d at 300; Blythe, 222 Va. at 

725, 284 S.E.2d at 798. We hold that reasonably competent 

counsel would have asserted this constitutional guarantee on 

West’s behalf at trial, and that counsel’s failure to do so “fell 

below an objective standard of reasonableness.” Strickland, 466 

U.S. at 687-88. 

 Having concluded that West did not receive effective 

assistance of counsel at trial, we turn to consider the second 

part of the Strickland test, commonly referred to as the 

“prejudice” prong. We must determine whether counsel’s failure 

to assert the bar of double jeopardy at trial prejudiced West, 

creating a reasonable probability that, but for counsel’s 

failure, the result of the proceeding would have been different. 

See Strickland, 466 U.S. at 694. 

 We hold that West suffered prejudice as defined by 

Strickland. The additional manslaughter conviction resulted in 

West being convicted of two felonies with two distinct 

punishments imposed, instead of one felony conviction with one 

punishment. The fact that the circuit court imposed the 

sentences concurrently, rather than consecutively, does not alter 

our conclusion that West was prejudiced. The sentences were 

separately imposed and, but for counsel’s failure, West would 

have received only one felony conviction with one accompanying 

punishment. 
10

 In reaching this conclusion, we reject West’s argument that 

he also suffered prejudice because his conviction of the two 

felony offenses made him subject to an increased range of 

punishment under the sentencing guidelines. West’s argument is 

without merit because the guidelines provided by Code § 19.2-

298.01 are discretionary, rather than mandatory. Under that 

statute, the circuit court was required only to consider the 

sentencing guidelines before sentencing West and to file with the 

record of the case a written explanation of any departure from 

the indicated range of punishment. Code § 19.2-298.01(B). 

 Moreover, the statute further provides that the “failure to 

follow any or all of the provisions in this section or the 

failure to follow any or all of the provisions of this section in 

the prescribed manner shall not be reviewable on appeal or the 

basis of other post-conviction relief.” Code § 19.2-298.01(F). 

Thus, the fact that the sentencing guidelines in West’s case may 

have been different had he been convicted only of one, instead of 

two felonies, does not provide him any basis for post-conviction 

relief on the aggravated involuntary manslaughter conviction in 

this habeas corpus petition. 

 Because West suffered prejudice as defined by Strickland, we 

must consider the appropriate relief that he should be afforded. 

The Commonwealth requests that this Court, in the exercise of its 

discretion, decline to grant West relief from his common law 

involuntary manslaughter conviction by applying the “concurrent 

sentencing doctrine.” The question whether we should apply this 
11

“doctrine” presents an issue of first impression in this 

Commonwealth. 

Other jurisdictions, through application of the “concurrent 

sentencing doctrine,” have selectively exercised their discretion 

to decline review of the validity of a defendant’s criminal 

conviction when 1) a defendant has received two or more 

concurrent sentences on multiple counts of an indictment; 2) one 

or more of those convictions is not challenged or is upheld as 

valid; and 3) a ruling in the defendant’s favor on the remaining 

conviction would not reduce the period of imprisonment the 

defendant is required to serve on the valid conviction or 

convictions. See Williams v. Maggio, 714 F.2d 554, 555 (5th Cir. 

1983); United States v. Smith, 601 F.2d 972, 973 (8th Cir. 1979); 

United States v. Weems, 414 F.2d 417, 418-19 (2nd Cir. 1969); 

State v. Edwards, 755 P.2d 821, 822 (Wash. Ct. App. 1988); Smith 

v. State, 443 A.2d 985, 995 (Md. App. 1982). The “concurrent 

sentencing doctrine” is not applied, however, in cases in which a 

defendant would suffer prejudice or be exposed to a “substantial 

risk of adverse collateral consequences that might flow from an 

invalid but unreversed conviction.” Smith, 601 F.2d at 973-74 

(quoting Sanders v. United States, 541 F.2d 190, 193 n.1 (8th 

Cir. 1976)). 

 The “concurrent sentencing doctrine” is essentially a rule 

grounded in judicial economy and convenience. See Benton v. 

Maryland, 395 U.S. 784, 792 (1969); United States v. Stovall, 

825 F.2d 817, 824 (5th Cir. 1987); United States v. Fuentes-
12

Jimenez, 750 F.2d 1495, 1497 (11th Cir. 1985); Atkins v. Hopper, 

216 S.E.2d 89, 91 (Ga. 1975); Frizzell v. State, 238 So.2d 67, 

69 (1970). Addressing the merits of this doctrine, we observe 

that the doctrine assigns a higher priority to concerns of 

judicial efficiency than to relief entitled a petitioner under 

our federal constitution. Because acceptance of such a 

perspective would close the doors of our courts to many 

petitioners regardless of the merits of their claims, we decline 

to apply the “concurrent sentencing doctrine” in Virginia. 

Instead, we adopt the view expressed by the Supreme Court of 

Georgia that the burden of any inconvenience in the 

administration of our justice system “should rest on the 

shoulders of the judiciary rather than on those of an imprisoned 

petitioner.” Atkins, 216 S.E.2d at 91. Therefore, we hold that

West is entitled to habeas corpus relief from his common law 

involuntary manslaughter conviction and sentence. 

 We find no merit in the Commonwealth’s argument that based 

on our holding in Virginia Parole Bd. v. Wilkins, 255 Va. 419, 

421, 498 S.E.2d 695, 696 (1998), we lack jurisdiction to grant a 

writ of habeas corpus because our granting of the writ will not 

result in West’s release from his immediate detention. In 

Wilkins, we considered an appeal in which a circuit court had 

granted a writ of habeas corpus, ordering that a prisoner “be 

reviewed for parole” within a specified year. Id. at 420, 498 

S.E.2d at 695-96. We held that the circuit court erred in 
13

granting the writ because the writ “is available only [when] the 

release of the prisoner from his immediate detention will follow 

as a result of an order in his favor.” Id. at 420-21, 498 S.E.2d 

at 696. 

 Although West is serving concurrent sentences on the two 

manslaughter convictions, our judgment granting a writ of habeas 

corpus with regard to his common law involuntary manslaughter 

conviction will result in his release from immediate detention on 

that conviction and sentence. Therefore, our decision complies 

with the purpose and scope of the writ of habeas corpus, which is 

to test the legality of a prisoner’s detention. See Code § 8.01-

654; Wilkins, 255 Va. at 420, 498 S.E.2d at 696; McClenny v. 

Murray, 246 Va. 132, 134, 431 S.E.2d 330, 331 (1993); Smyth v. 

Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958). 

 Accordingly, for these reasons, we will grant a writ of 

habeas corpus with regard to West’s common law involuntary 

manslaughter conviction and vacate his conviction and sentence on 

that offense. We will dismiss the remainder of West’s petition 

including his request for relief on the aggravated involuntary 

manslaughter conviction. 

Writ granted in part and dismissed in part.