COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Humphreys and Decker Argued at Chesapeake, Virginia

REGGIE DONNELL SAUNDERS MEMORANDUM OPINION * BY v. Record No . 1828-16-1 JUDGE MARLA GRAFF DECKER OCTOBER 31, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF T HE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge Ronald G. Reel for appellant. Benjamin H. Katz, Assistant Attorney General (Mark R. Herring , Attorney General, on briefs), for appellee.
Reggie Donnell Saunders appeals his two convictions for posses sion of oxycodone with intent to distribute in violatio n of Code § 18.2-248. On appeal, both parties take the position that he committed only a single offense by possessing tw o bags of the d rug and that his conviction and punishment for a second count viol ated the Double Jeopardy Clau se of the United States Constitution. They disagree, how ever, regarding the proper rem edy for the double jeopardy violation. Based upon the Court’s independent review, we rever se the circuit court’s order convicting and sentencing the app ellant for two counts of posse ssing oxycodone with the intent to distribute it to reflect only one , and we remand for limited ac tion as specifically directed in this opinion.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND On July 2, 2015, detectives with the City of Virginia Beach Po lice Department observed the appellant engage in what a ppeared to be a series of drug tr ansactions. When the police approached the appellant as he s at in a car, they saw two bags of pills in his lap and then found an additional bag of pills in hi s pocket. After being advised of his rights, the appellant admitted that he was selling pres cription medications. Subsequently, an indictment was issued charging the appellant w ith possession of oxycodone with intent to distribut e in violation of Code § 18.2 -248. The single indictment contained two generic, identical ly worded counts. The appellant agreed to plead guilty to both offenses. The parties stipulated to the discovery of the three bags of pills on the appellant’s lap and in his pocket. The certificat e of analysis reflected that one of the bags contained oxycodone, the second bag contained a mixture of oxycodone and acetaminoph en, and the third contained alprazolam. The appellant was convicte d of both counts of possessing oxycod one with the intent to distribute. He was also convict ed of distributing alprazolam and distributing a controlled substance within 1000 feet of a school. 1 All convictions were base d upon the appellant’s guilty pleas. The circuit court sentenced the appellant to sixteen years in p rison for each count of possession of oxycodone with intent to distribute. He was sent enced to five years in prison for distribution of alprazolam and an additional five years for dis tribution of a controlled substance within 1000 feet of a school. The court ordered all sentences to run concurrently. It stated that the “total sentence imposed is [sixteen] years,” and it suspend ed “all but [eight] years.”

1 The appellant does not challeng e these two convictions in this appeal.- 3 - II. ANALYSIS Both parties agree that the a ppellant’s conviction and sentenc e for two counts of possession of oxycodone with inten t to distribute viol ate the constitution al prohibition against double jeopardy on the facts of this case. They disagree, however, regarding t he proper remedy for the double jeopardy violation. Under settled principles, an appellate court may not accept ev en formal concessions of law without independently confirming their correctness. 2 Logan v. Commonwealt h, 47 Va. App. 168, 172, 622 S.E.2d 7 71, 773 (2005) ( en banc ); see Jones v. Commonwealth, 293 Va. 29, 5 9 n.27, 795 S.E.2d 705, 723 n.27, cert. denied, 8 6 U.S.L.W. 3149 (U.S. Oct. 2, 2017) (No. 16-1337). Consequently, even though the pa rties agree that a double jeopa rdy violation occurred, we examine both the double jeopardy issue an d the appropriate remedy. A. Standard of Review The appellate court reviews de novo a claim that multip le punishments hav e been i mposed for the same offense in violation of the Double Jeopardy Clause . Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S .E.2d 847, 870 ( 2013). The same de novo standard applies to review of determinations involving the interpretation of mandatory and di scretionary sentencing statutes. See Woodard v. Commonwea lth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

2 Nevertheless, such concessions of law, made in this case by bo th the Commonwealth’s Attorney and the Atto rney General, embody the ethical duties expected of legal advocates for the Commonwealth and are held in h igh esteem. See, e.g., Stephens v. Commonwealth, 274 Va. 157, 161, 645 S.E.2d 276, 277 (2007) (recognizing the appropriateness of a concession by the Commonwealth); Jones v. C ommonwealth, 28 Va. App. 444, 447, 506 S.E.2d 27, 29 (1998) (noting the Attorney General’s “candid[] conce[ssion]” on a poi nt of law); see also Va. R. of Prof’l Conduct 3.3 (“Candor Toward T he Tribunal”). The Court appreciates the candor of both counsel for the Commonwealth.- 4 - B. Double Jeopardy Violation The Fifth Amendment of the Unit ed States Consti tution protects a defendant against double jeopardy. See, e.g., Payne v. C ommonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 30 0 (1999). “In the single-trial setting, ‘the role of the constitutional guara ntee is limited to assuring that the [circuit] court does not exceed its legislative auth orization by imposingmultiple punishment s for the same offense.’” Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2 d 796, 798 (1981) (quoting Brown v. Ohio, 432 U.S . 161, 165 (1977)), q uoted with approval in Johnson v. Commonwealth, 292 Va. 738, 741, 79 3 S.E.2d 321, 322-23 ( 2016). In this conte xt, “the same offense” can include multiple counts of identical offe nses arising from the same fac ts as well as convictions for a greater offense and a lesser-included offense that arise out of the sam e facts. See, e.g. , Commonwealth v. Hudgins, 269 Va. 60 2, 605, 611 S.E.2d 362, 364 (2005). The appellant argues that in the context of the facts of this case, his conviction and sentence for two counts of possession wi th intent to distribute violates the prohib ition against double jeopardy. The Commonwealth candi dly agrees. The Commonwealth also takes the position that the appellant did not waive his right to assert the double jeop ardy challenge by plea ding guilty. Our independent analysis leads us to the same conclusions. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of th e ruling, except for good cause shown or to enable the Court of Appeals to attain th e ends of justice.” Rule 5A:18 applies to bar even constitutio nal and jurisdictional claims, e xcept those involving subject matter jurisdiction. See Smith v. Com monwealth, 59 Va. App. 710, 723- 24, 722 S.E.2d 3 10, 316 (2012); see also Morency v. Commonwealth, 274 Va. 5 69, 577, 649 S.E.2d 682, 686 (2007) (applying Rule 5:25, the Supreme Court’s counterpart to Rule 5A:18, to hold th at an appellant’s failure to raise a separation of powers argument in the circuit court prevented hi m from asserting such an argument- 5 - for the first time on appeal). In keeping with these principle s, under certain circumstances, a defendant may waive a double jeo pardy violation by pleading gui lty. See Cardwell v. Commonwealth, 28 Va. App . 563, 566, 507 S.E. 2d 625, 627 (1998); see also Booker v. Commonwealth, 61 Va. App . 323, 330, 734 S.E. 2d 729, 73 2 (2012) (providing that a guilty plea is ordinarily “a waiver of all defenses other than those jurisdict ional” (quoting Peyt on v. King, 210 Va. 194, 196, 169 S.E.2d 569, 571 (1969))). The appellant argues that the ends of justice exception to Rul e 5A:18 permits him to raise a double jeopardy claim despite the fact that he entered guilty p leas to the offenses at issue. “Application of the ends of justice exception requires proof of an error that was ‘clear, substantial and material.’” West v. Commonw ealth, 43 Va. Ap p. 327, 338, 59 7 S.E.2d 274, 279 (2004) (quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989)). We apply the exception where error has occu rred and applicat ion “is necessar y to avoid a grave in justice or the denial of essential rights.” Br own v. Commonw ealth, 279 Va. 21 0, 219, 68 8 S.E.2d 1 85, 190-91 (2010) (quoting Charles v. Comm onwealth, 270 Va. 14, 17, 613 S. E.2d 432, 433 (2005)); see Ali v. Commonwealth, 280 Va. 665, 669-71 , 701 S.E.2d 64, 67-68 (2010); Redman v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 272- 73 (1997). We hold that the very limited ends of justice exception to Rule 5A:18 applies on the facts of this case for t he reasons that follow. 3

3 We assume without deciding that the appellant’s claim does not implicate the court’s subject matter jurisdiction and analyze the waiver issue in light of Rule 5A:18 as presented by the parties. See, e.g., Kirby v. Co mmonwealth, 50 Va. App. 691, 69 8 n.2, 653 S.E.2 d 600, 603 n.2 (2007) (holding that an appellate court must “decide cases ‘on the best and narrowest ground’” (quoting Miles v. Commo nwealth, 274 Va. 1, 2 , 645 S.E.2d 924, 9 25 (2007) (Kinser, J., concurring))). Compare Slavek v. Hinkle, 359 F. Supp. 2d 473, 481 & n.6 (E.D. Va . 2005) (stating that “[m]any courts, including t he Fourth Circuit, have labeled . . . claims [under Menna v. New York, 423 U.S. 6 1, 62 n.2 (1975) ( per curiam ), discussed infrain the text,] ‘jurisdictional’ challenges to a defend ant’s guilty plea”), with United States v . Smith, 532 F.3d 1 125, 1127 (11th Cir. 2008) (rejecting the notion that the rule in Menna implicates subject matter jurisdiction and treating the rule as an exceptio n to the principle that a guilt y plea waives all non-jurisdictional defenses).- 6 - Under United States Supreme Cou rt precedent, a double jeopardy claim survives a guilty plea if it is obvious from the “indictment[] and the existing r ecord” that the second offense “‘is one [that] the State may not constitutionally prosecute.’” United States v. Broce, 488 U.S. 563, 575-76 (1989) (quoting Menna v. New York, 423 U.S . 61, 62 n.2 (1975) ( per curiam )); see United States v. Brown, 155 F.3d 431, 434 (4th Cir . 1998); see also Broce, 488 U .S. at 575 (“[W]here the State is precluded by the United States C onstitution from haling a defen dant into court on a charge, . . . a conviction on that charge [must] be set aside even if the convi ction was entered pursuant to a counseled plea of guilty.” (quot ing Menna, 423 U.S. at 62)). I n the context of cases involving both multiple prosecutions and multiple punishment s rendered in a si ngle prosecution, a guilty plea does not bar a challenge on double je opardy grounds where “the claim is that the [Commonwealth] may not convict [the defe ndant] no matte r how validly his factual guilt is established.” Menna, 423 U.S. at 62 n.2; see Kaiser v. United S tates, 489 U.S. 1002 (1989) (v acating and remandi ng in light of Broce in a case invo lving multiple punishme nts in a single pros ecution in which the Court of Appeals had held that no double jeopardy violation occurred), o n remand, 893 F.2d 1300, 1302-03, 1306-07 (11th Cir. 1990) (applying B roce and Menna to hold that a double jeopardy violation occurred in the single prosecution). In the case of multiple convict ions for possession of the same controlled substance, case law holds that multiple pun ishments for such co nvictions violate th e Double Jeopardy C lause if the acts of possession are not “sufficiently differentiated by time, loc ation, or intended purpose.” Peake v. Commonwealth, 46 Va. A pp. 35, 41, 614 S.E.2 d 672, 676 (2005) (q uoting Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 20 00)). In Lane v. Commonwealth, 51 Va. App. 56 5, 659 S.E.2d 553 (2008), for example, police approached the defendant outsid e his residence near the attached garage. Id. at 569, 659 S.E.2d at 554-55. They found two diff erent bags of oxycodone tablets in different pockets of the cloth ing he was wearin g and a bottle o f liquid oxycodone i n the garage. Id.- 7 - On these facts, the Court held that the defendant could be conv icted and punished for only one count of possession wit h intent to distribute oxycodone becausethe evidence established only a single general intent with regard to the different containers o f the illegal drug. I d. at 578-82, 659 S.E.2d at 559-61. In the appellant’s case, counts o ne and two of the indictment contain generic, identically worded language charging him w ith possession of oxycodone with the intent to distribute it. Other than naming the appellant, the s ubstance, and the date of the o ffense, each count recites only the language of the statute. The s tipulation of fa cts and attachme nts reflect only that the appellant was found with two bags of oxycodone in his physical possession and that he admitted that he was selling prescription me dications. Thus, in the appellant’s cas e, like in Lane, the evidence does not differentiate between the two bag s of oxycodone by time, locati on, or intended purpo se. Id. As a result, the face of the record makes clear that a second offens e did not occur and that the appellant’s conviction and sentence for the second count of possession with intent to distribute violates double jeopardy principles. See Ali, 2 80 Va. at 669-71 , 701 S.E.2d at 67-68. In the face of this clear, substantial, and material error, the ends of justice exception to Rule 5A:18 applies, and the appellant’s entry of guilty pleas does not constitute a waiver of his right to cha llenge the clear double jeopardy violation. See Broce, 488 U.S. at 575-76; Menn a, 423 U.S. at 62 n.2. C. Proper Remedy The parties disagree over the p roper remedy to be applied in t his case. The appellant argues that he is entitled, a t a minimum, t o have one conviction vacat ed and the other remanded for resentencing. He su ggests that his prior sentence was based on a sentencing guidelines calculation that is no longer accurate and th at his having be en “sentenc[ed ] on overstated, higher-than-proper guidelines” resulted in “a violation of his constitutional righ t to ‘fundamental fa irness’ under the Fourteenth Amendment.”- 8 - In the case of multiple convictio ns and punishments for “the s ame offense” in violation of the constitutional prohibition a gainst double jeopardy, “the ex cess conviction[] . . . and the related sentence[] [must be] vacated” while the original or primary “co nviction and sentence” are “le[ft] in place.” See Buchanan v. Commonw ealth, 238 Va. 38 9, 415, 384 S. E.2d 757, 7 72-73 (1989) (citing Morris v. Commonwealth , 228 Va. 206, 209, 3 21 S.E.2d 633, 634-3 5 (1984)). In a case in which a defendant is convicted of a lesser-included offense and a great er offense in a single trial, the proper remedy is to vacate the convictio n and sentence for the lesser- included offense. Se e id. at 415, 384 S.E.2d at 772; cf. Clagett v. C ommonwealth, 252 Va. 79, 95-96, 472 S.E.2d 263, 272-73 (1996) (citing Buchanan to v acate a conviction for capital murder base d on multiple homicides, which the Court characterized as being “o f equal magnitude” but “derivati ve” of several convictions for capital murder during the commi ssion of robbery). Where the co nvictions rendered in a single proceeding are for identical offe nses with identical punishment s, it makes no difference which conviction and senten ce are vacated. Cf. C lagett, 252 Va. at 9 5-96, 472 S.E.2d at 272; Buchanan, 238 Va. at 415, 384 S.E.2d at 772-73. In this case, the convictions are for identical offenses, but due to the language of the sentencing order, we are unable to discern from the record, bec ause of the way the suspended time was pronounced, whether the puni shments are identical. The final order sentenced the appellant to sixteen years in prison for eac h count of possess ing oxycodone with the intent to dis tribute it. It also sentenced him to five years in p rison for distribution of alpra zolam and an additional five years for distribution of a controlled subst ance within 1000 feet of a sc hool. It then provided that all the sentences would run concurrently and suspended “all but [eight] years.” The order does not explain whether or, if so, how the suspended time was apportioned among the various sentences. In keeping with the principles set o ut above, the manner of apport ionment of the sus pended time may impact which conviction should bevacated. See Buchanan, 238 V a. at 415, 384 S.E.2d at 772.- 9 - Accordingly, we remand to the circuit court for clarification o f the action it took at sentencing with regard to this suspended time. See Code § 8.01-428(B); Tatum v . Commonwealth, 17 Va. App. 585, 592-93, 440 S.E.2d 133, 138 (1994). We note that the court’s authority is limited to correcting the record to r eflect “‘judicial action which has actually been taken . . . at the proper time,’” as opposed to action “[the court] might have [taken] ” but did not. Davis v. Mullins, 251 Va. 141, 149-50, 466 S.E.2d 90, 94 (1996) (emphasis added) (quo ting Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248 (1956)). Th e circuit court should then apply the legal principles set out above to vacate the appropri ate duplicate conviction and related

sentence. Regarding whether the appellant is entitled on r emand to resen tencing on the remaining conviction due to the impact tha t vacating the second convictio n and sentence would have on the related sentencing guidelines calculations, the decision in Woo dard v. Commonwealth, 287 Va. 276, 754 S.E.2d 3 09 (2014), dictates that the appellant is not entitled to be resentenced. The defendant in Woodard was convicted of the felony sale of a controlled substance, felony possession of a controlled substance with the intent to distrib ute it, and felony murder resulting from the death of the perso n to whom the defenda nt sold the controll ed substance. Id. at 278, 754 S.E.2d at 310. The parties disputed t he proper way to calculate the s entencing guidelines for the offenses. Id. The defendant argued that they should be based on the felo ny sale as the primary offense. Id. at 278, 754 S.E.2d at 3 10-11. The Commonwealth asserted that the felony murder conviction should be primary. Id. at 278, 754 S. E.2d at 311. The trial court pr onounced a sentence that fell in the range between the two calculation s. Id. at 279, 754 S.E.2d at 311. The defendant successfully challenged the felony murder convic tion on appeal. Id. He argued that, as a result, he w as entitled to a rem and for resentencing for the rema ining convictions because, on remand, “t he sentencing guidel ines w[ould] be diffe rent than during the first sentencing- 10 - hearing.” Id. at 281, 754 S.E.2 d at 312. The Supreme Court of Virginia disagreed, holding that the defendant was not ent itled to a remand for re sentencing on the remaining convictions despite the reversal of his felony murder co nviction. Id. at 281-82, 754 S .E.2d at 312-13. The Supreme Court pointed to the fact that the sentencing guidelines are “discretionary” rather than “m andatory.” Id. at 281, 754 S.E.2d at 312 (quoting W est v. Dir. of the Dep’t of Co rr., 273 Va. 56, 65, 639 S.E.2d 190, 196 (2007)). It reasone d that, by definitio n, no prejudice cou ld exist because the statutory scheme expressly provides that the manner of application of the guidel ines or the failure to follow them “shall not be reviewable on appeal ” or serve as “the basis of a ny other post-conviction relief.” Id. at 281-82 & n.2, 754 S.E.2d at 312 & n.2 (quoting C ode § 19.2-298. 01(F)). The Court concluded that the defendant was “not entitled to seek relief through a new se ntencing proceeding because of the fact that the sentencing guideli nes with a felony murder convic tion would be different than the sentencing guideline s without a felony murder conviction.” Id. at 282, 754 S.E.2 d at 312. Compare id. at 281-82, 754 S .E.2d at 312-13 (addressing the wholly disc retionary sentencing guidelines), with Graves v. Commonwealth, ___ Va. ___, ___, _ __ S.E.2d ___, ___, 2017 Va. LEXIS 146, at *15 (2017) (addressing mandatory, statutorily prescribed senten cing ranges and holding that in the case of a sentence fixed in viola tion of a mandato ry range, the defendant is entitled to a new sentencing hearing unless “only [one] sentence [is] available”)

. In this case, like in Woodard , the appellant is not entitled t o a new sentencing proceeding simply because the discretionary s entencing guidelines calculat ions that result from including two convictions for possession with the intent to distribute oxycod one would be different than the guidelines calculations resulting from the inclusion of only on e such conviction.
III. CONCLUSION We hold that the appellant’s conviction and sentence for two c ounts of possession of oxycodone wit h intent to distribute it violated the prohibition against double jeopardy. Based on the- 11 - record before us, however, we are unable to determine which con viction and related sentence should be vacated. Consequently, we r emand to the trial court with in structions only to clarify how much active and suspended time it imposed on the appellant’s convict ions for possession of oxycodone with the intent to distribute it and to vacate one of the two c onvictions and the corresponding sentence based on the legal prin ciples set out in this opinion. Reversed in part and remanded with instructions.