Groffel v. Commonwealth, Record No. 0485-18-2

CourtCourt of Appeals of Virginia
Citation831 S.E.2d 503,70 Va.App. 681
Decision Date20 August 2019
Docket NumberRecord No. 0485-18-2
Parties Howard Allen GROFFEL v. COMMONWEALTH of Virginia

Ivan D. Fehrenbach (D.R. Dansby, Ltd, Williamsburg, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge Beales and Retired Judge Bumgardner*

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Howard Allen Groffel appeals four of his five convictions and sentences for transporting a firearm while subject to a protective order in violation of Code § 18.2-308.1:4(A) and his conviction for possessing ammunition after conviction of a felony in violation of Code § 18.2-308.2. He argues that the punishments for these convictions violate the constitutional prohibition against double jeopardy. For the reasons that follow, we affirm the convictions and sentences for transporting a firearm while subject to a protective order. However, we reverse and remand the case for reconsideration of the convictions and sentences for possession of a firearm and possession of ammunition in a manner consistent with this opinion.

I. BACKGROUND1

On April 25, 2017, the appellant was convicted in general district court and sentenced to jail. He escaped custody by walking away while unattended. When law enforcement captured him that night, he had a revolver strapped to his ankle.

At the time of the escape and apprehension, the appellant was subject to five separate protective orders. Of these five protective orders, three were obtained by adults, each of whom petitioned on his or her own behalf. The other two orders were entered by the juvenile and domestic relations district court to protect the appellant’s two children.

While in jail, the appellant called a neighbor and asked him to move and sell property that the appellant kept in his shed. In the shed was a cabinet, in which the neighbor found an AK-47 assault rifle, a "12-gauge Winchester pump shotgun," ammunition for the two firearms, and ammunition for a "30-30" rifle. Captain John McLaughlin with the New Kent County Sheriff’s Office, who had monitored the phone call between the appellant and his neighbor, went to the neighbor’s house and collected the firearms and ammunition as evidence.

The Commonwealth charged the appellant, in pertinent part, with five counts of transporting a firearm while subject to a protective order and two counts of possessing a firearm or ammunition after previously being convicted of a felony. The appellant filed a motion to dismiss in which he argued that his constitutional protection against double jeopardy was violated by the five charges of transporting a firearm while subject to a protective order and additionally by the two charges of possession of a firearm or ammunition by a convicted felon. The trial court denied the motion.2 In doing so, the judge commented that the five protective orders were issued by different courts to protect different individuals. Regarding the possession charges, the trial court noted that the separate charge for possession of ammunition was based on ammunition that did not match the types of firearms found with it.

Following the presentation of the evidence, the trial court found the appellant guilty of five counts of transporting a firearm while subject to a protective order and two counts of possessing a firearm or ammunition after conviction for a felony.3 The court sentenced him to a total of fifteen years in prison, with six years suspended, for these offenses.

II. ANALYSIS

The appellant contends that he received multiple convictions and punishments for the same offense in violation of the constitutional protection against double jeopardy.

"The Fifth Amendment to the Constitution of the United States declares that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ " Severance v. Commonwealth, 295 Va. 564, 571-72, 572 n.8, 816 S.E.2d 277 (2018) (quoting U.S. Const. amend. V ) (noting that the Virginia Constitution provides the same protections). This prohibition includes protection from "multiple punishments for the same offense." Id. at 572, 816 S.E.2d 277 (quoting Commonwealth v. Gregg, 295 Va. 293, 298, 811 S.E.2d 254 (2018) ). "We review de novo whether ‘multiple punishments have been imposed for the same offense in violation of the double jeopardy clause.’ " Gregg, 295 Va. at 296, 811 S.E.2d 254 (quoting Johnson v. Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321 (2016) ).

"When considering multiple punishments for a single transaction, the controlling factor is legislative intent." Id. at 298, 811 S.E.2d 254 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104 (1983) ). In determining legislative intent, the court first looks to the plain language of the statute. Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642 (2012). "If the language is clear and unambiguous, [an appellate court] will assign the statute its plain meaning." Browning-Ferris Indus. of S. Atl. v. Residents Involved in Saving the Env’t, Inc., 254 Va. 278, 284, 492 S.E.2d 431 (1997). Additionally, we must "give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007). On the other hand, if the statutory language is ambiguous, the court must rely on "the gravamen of the offense to determine the legislature’s intent" regarding the permissible unit of prosecution. See Baker, 284 Va. at 576, 733 S.E.2d 642 ; see also Johnson, 292 Va. at 741-42, 793 S.E.2d 321 (examining legislative intent in order to determine "the unit of prosecution"); Acey v. Commonwealth, 29 Va. App. 240, 250-51, 511 S.E.2d 429 (1999) (analyzing the gravamen of an offense in considering "the unit of prosecution by which the state may assess punishment").

The appellant argues that the constitutional protection against double jeopardy precludes his multiple convictions and sentences under Code § 18.2-308.1:4(A) for transporting a firearm while subject to multiple protective orders. He also contends that his two convictions and punishments under Code § 18.2-308.2 for simultaneous possession of a firearm and ammunition violate double jeopardy.

A. Protective Orders Under Code § 18.2-308.1:4(A)

Code § 18.2-308.1:4(A) provides, in pertinent part, that "[i]t is unlawful for any person who is subject to ... a protective order ... to purchase or transport any firearm while the order is in effect." The appellant’s transportation of the firearm found strapped to his ankle when he was captured and arrested while subject to five protective orders was the basis for five separate convictions and corresponding sentences. The question for this Court to resolve is whether the statute penalizes the act of purchasing or transporting a firearm while subject to multiple protective orders as a single offense or as multiple ones subject to separate punishments.

In answering this question, we first look to the statutory language. See Baker, 284 Va. at 576, 733 S.E.2d 642. Only if the plain text is ambiguous do we "us[e] the gravamen of the offense to determine the legislature’s intent." Id.

The language in Code § 18.2-308.1:4(A) is ambiguous on this point because it "can be understood in more than one way." See id. (quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8, 623 S.E.2d 922 (2006) ); see also Acey, 29 Va. App. at 250, 511 S.E.2d 429 (analyzing the gravamen of the offense of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2 ). On the one hand, the statute prohibits the purchase or transportation of a firearm by a person subject to "a protective order." The use of the singular "a" suggests that for each protective order in place, the act of purchase or transportation of a firearm constitutes a separate offense. Johnson, 292 Va. at 742, 793 S.E.2d 321 (holding that the statutory phrase " ‘a’ felony" provided that "each felony charge could serve as the predicate of a failure to appear conviction"). On the other hand, the language "any person who is subject to" suggests that the statute describes a class of people who are forbidden from buying or transporting firearms and that the prohibited conduct is the purchase or transportation regardless of the number of protective orders in place. See United States v. Dunford, 148 F.3d 385, 388-89 (4th Cir. 1998) (holding that possession of a firearm or ammunition is a single offense regardless of the number of disqualifying classes to which a defendant belongs).

As a result of this ambiguity, we must look to the gravamen, or essence, of the crime. We conclude that the purpose of Code § 18.2-308.1:4 is to protect the individuals who are the subjects of the protective orders. In some circumstances, a petitioner obtains a protective order on his or her own behalf. See generally Code §§ 16.1-253.1, -279.1 (allowing issuance of a protective order against an allegedly abusive person in order "to protect the health and safety of the petitioner [or any] family or household member[ ] of the petitioner"). In others, "[u]pon the motion of any person or upon the court’s own motion," a court may enter a protective order to protect a child who has been subjected to parental abuse or neglect. See Code §§ 16.1-253(A), (F), -278.2(C). Each protective order entered to safeguard a unique principal protected person (the principal), whether a petitioner or a child of an allegedly abusive or neglectful parent, "has a separate existence with separate consequences and effects." See Johnson, 292 Va. at 742, 793 S.E.2d 321 (discussing summonses and felony charges).4

The focus of Code § 18.2-308.1:4 must be upon the principal whom each protective order is in place to protect. Therefore, the gravamen of the offense of the purchase or transportation of a...

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