Evans v. Commonwealth, 120320 VASC, 190846

Docket Nº:190846, 190898
Opinion Judge:STEPHEN R. MCCULLOUGH, JUSTICE
Party Name:RAEQUAN EVANS, s/k/a RAEQUAN D. EVANS v. COMMONWEALTH OF VIRGINIA and MARIAH LESLIE CONWAY v. COMMONWEALTH OF VIRGINIA
Judge Panel:PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Millette, S.J. SENIOR JUSTICE MILLETTE, with whom JUSTICE GOODWYN and JUSTICE POWELL join, dissenting.
Case Date:December 03, 2020
Court:Supreme Court of Virginia

RAEQUAN EVANS, s/k/a RAEQUAN D. EVANS

v.

COMMONWEALTH OF VIRGINIA

and

MARIAH LESLIE CONWAY

v.

COMMONWEALTH OF VIRGINIA

Nos. 190846, 190898

Supreme Court of Virginia

December 3, 2020

FROM THE COURT OF APPEALS OF VIRGINIA

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.

OPINION

STEPHEN R. MCCULLOUGH, JUSTICE

In these consolidated appeals, we must determine whether Code § 19.2-294 precludes convictions for possession of a firearm by a convicted felon when the defendants were convicted in prior prosecutions of carrying a concealed weapon. We take this opportunity to clarify the proper test that governs the application of the successive prosecution bar found in Code § 19.2-294. For the reasons noted below, we will affirm the defendants' convictions.

BACKGROUND

Evans

The parties stipulated to the facts at trial. On July 30, 2017, a Norfolk police officer on bicycle patrol noticed that Raequan Evans had what appeared to be a partially concealed handgun beneath his shirt. The officer detained him. Id. Evans admitted he had a firearm. Id. The officer lifted Evans's shirt and retrieved a semi-automatic pistol from the front of Evans's pants. Id. Evans did not have a concealed weapon permit. Id. The officer confiscated the firearm and issued a summons for carrying a concealed weapon in violation of Code § 18.2-308. Id.

The charge of possession of a concealed weapon was continued several times, with two such occasions being necessitated by Evans's failure to appear. On February 15, 2018, in Norfolk General District Court, Evans entered a guilty plea pursuant to a written plea agreement and was convicted of carrying a concealed weapon. The conviction was based on the encounter with the police officer on July 30, 2017. Id.

On October 4, 2017, the Commonwealth obtained an indictment charging Evans with possession of a firearm by a convicted felon based on the officer's seizure of the pistol from Evans on July 30, 2017. Evans filed a motion to dismiss, contending that Code § 19.2-294 barred his prosecution for possession of a firearm as a convicted felon. The circuit court denied his motion. Evans subsequently entered a conditional plea of guilty reserving the right to challenge his conviction under Code § 19.2-294. He was later sentenced to serve the mandatory five years in prison called for by Code § 18.2-308.2.

Conway

On April 7, 2016, Danville police officers encountered several individuals on the street, including Mariah Conway. Police recovered a revolver in the grass near where Conway was standing. Later, after a review of the officers' body worn camera footage, the Commonwealth charged Conway with carrying a concealed weapon. On August 29, 2016, Conway pled guilty in the Danville General District Court to a charge of carrying a concealed weapon in violation of Code § 18.2-308.

On January 3, 2018, Conway was indicted for possession of a firearm as a convicted felon. She filed a motion to dismiss, arguing that Code § 19.2-294 barred this prosecution. The trial court denied her motion. Conway proceeded to trial by a jury. She was convicted and sentenced to serve the mandatory five-year term of incarceration imposed by Code § 18.2-308.2.

Evans and Conway Appeal to the Court of Appeals

Relying on Jefferson v. Commonwealth, 43 Va.App. 361, 367 (2004) and Johnson v. Commonwealth, 38 Va.App. 137, 147 (2002), the Court of Appeals denied Evans's and Conway's appeals by unpublished per curiam orders. Evans v. Commonwealth, Record 1537-18-1 (May 31, 2019); Conway v. Commonwealth, Record 1094-18-3 (April 10, 2019). In declining the appellants' invitations to overturn Jefferson and Johnson, the Court of Appeals noted that these published cases could only be overturned by the Court of Appeals, sitting en banc, or by this Court. Id.

We awarded Evans and Conway an appeal and paired the two cases.

ANALYSIS

We review questions of statutory construction de novo. Courtney v. Commonwealth, 281 Va. 363, 366 (2011). "[I]f the language of a statute is unambiguous, courts may not interpret the language in a way that effectively holds that the General Assembly did not mean what it actually expressed." Hicks ex rel. Hicks v. Mellis, 275 Va. 213, 218 (2008).

Evans and Conway argue that under the plain language of Code § 19.2-294, their convictions for possession of a firearm as a convicted felon must be dismissed. They acknowledge hostile precedent but contend those cases were wrongly decided. The Commonwealth responds that our own precedent compels affirmance and urges us to adhere to precedent from the Court of Appeals.

I. Origin and interpretation of Code § 19.2-294.

In 1918, the General Assembly enacted Code § 4775, the predecessor to Code § 19.2-294. It provided that: If the same act be a violation of two or more statutes, or of two or more municipal ordinances, a prosecution or proceeding under one of such acts or ordinances shall be a bar to a prosecution under the other or others.

In 1920, the statute was amended to substitute "conviction" for "a prosecution or proceeding"

and to add the last sentence, which resulted in the following form of the statute: If the same act be a violation of two or more statutes, or of two or more municipal ordinances, conviction under one of such acts or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a State and a Federal statute a prosecution or proceeding under the Federal statute shall be a bar to a prosecution or proceeding under the State statute.

1920 Va. Acts ch. 118. Although there have been additional amendments, none of them substantively changed the language of the statute as is relevant here. Currently, Code § 19.2-294 provides that: If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others.

"Like the Fifth Amendment bar of former jeopardy, Code § 19.2-294 prevents the Commonwealth from 'subjecting an accused to the hazards of vexatious, multiple prosecutions.'" Phillips v. Commonwealth, 257 Va. 548, 551 (1999) (quoting Hall v.

Commonwealth, 14 Va.App. 892, 899 (1992) (en banc)). Unlike the Fifth Amendment Blockburger test (developed under Blockburger v. United States, 284 U.S. 299 (1932) ("Blockburger")), however, Code § 19.2-294 is not concerned with the elements of an offense. Instead, it bars a subsequent prosecution based on the "same act." Therefore, the plain language of Code § 19.2-294 requires an examination of the act committed by a defendant upon which a prior prosecution was predicated. Additionally, the statutory bar applies only if there has been "a conviction under one of the acts or ordinances before this clause of the statute operates. A mere proceeding or prosecution which does not result in a conviction does not bar another prosecution in a state court." Owens v. Commonwealth, 129 Va. 757, 759 (1921). Code § 19.2-294 also "does not apply to simultaneous prosecutions." Phillips, 257 Va. at 552.1

The statute traces its origin to Arrington v. Commonwealth, 87 Va. 96 (1890). In that case, the defendant was convicted of selling liquor on a Sunday. Id. at 99-100. Afterwards, she was charged with selling liquor without a license based on the same acts. Id. We held in Arrington that her prior conviction for the unlawful sale of liquor on a Sunday did not bar her subsequent prosecution and conviction for the sale of the same liquor without a license because "[t]he two indictments [were] under different statutes; the penalties prescribed [were] different; and the evidence required to support a conviction in either case [was] not the same." Id. at 100. The applicable test was "not whether the defendant ha[d] already been tried for the same act, but whether [she] ha[d] been put in jeopardy for the same offense." Id. at 99-100. Arrington thus prefigured Blockburger, the seminal Double Jeopardy decision from the United States Supreme Court.

That outcome was of concern to the legislature, as we acknowledged in Owens v. Commonwealth, 129 Va. 757 (1921). In Owens, the defendant was charged with a violation of the prohibition laws, and while his case was pending in state court he was charged with the same offense in federal court. Id. at 758-59. We ultimately rejected his argument that the filing of the federal charge required dismissal of the then-pending state charge under the predecessor statute to Code § 19.2-294. Id. at 761-62. In reviewing the history of the statute, we cited as authoritative the Revisors' Note to the 1920 amendment, observing that, in enacting the statute, the legislature "desired to remove the apparent hardship manifest in Arrington v. Commonwealth, 87 Va. 96 [(1890)], in which a prisoner had committed but a single act, but, inasmuch as it violated two statutes, she was convicted under both." Id. at 759-60.

In the decades that followed Owens, two divergent strands emerged. Some of the cases from this Court and the Court of Appeals tack closely to the plain language of the statute by examining whether the successive prosecutions were based on the "same act." For example, in Jones v. Commonwealth, 218 Va. 757 (1978), the defendant argued that the theft of certain money from a hotel clerk at the hotel's reception desk, underlying his robbery conviction, and the theft of the hotel's courtesy car from the hotel parking lot 200 yards away, underlying his conviction for grand larceny, constituted continuous, indivisible parts of the same act and, therefore, his...

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