Johnson v. Commonwealth

• Decision Date: 08 December 2016
• Docket Number: Record No. 151200
• Citation: 292 Va. 738,793 S.E.2d 321
• Court: Virginia Supreme Court
• Parties: Ronald Edward JOHNSON, Jr. v. COMMONWEALTH of Virginia

292 Va. 738

793 S.E.2d 321

Ronald Edward JOHNSON, Jr.

v.COMMONWEALTH of Virginia

Record No. 151200

Supreme Court of Virginia.

December 8, 2016

Mark S. Gardner (Gardner & Burks, on brief), Spotsylvania, for appellant.

Alice T. Armstrong, Senior Assistant Attorney General (Mark R. Herring, Attorney General; David M. Uberman, Assistant Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

Johnson was charged with three felonies: forgery, uttering, and attempting to obtain money by false pretenses. All three charges stemmed from allegations that Johnson had altered a check written by a third party and attempted to cash it. Johnson was ordered to appear before the City of Fredericksburg General District Court for a preliminary hearing, for all three charges, on June 20, 2013. Johnson did not appear on that date.

As a consequence of his failure to appear, a grand jury indicted Johnson for three counts of felony failure to appear under Code § 19.2–128(B). He moved to dismiss two of the three indictments on the grounds of double jeopardy, arguing that he could be convicted of, at most, one felony failure to appear. The trial court denied that motion. Johnson then entered a conditional guilty plea to three counts of felony failure to appear. He was sentenced to serve a total of six years with five years suspended.

Johnson appealed to the Court of Appeals. That court rejected his double jeopardy argument and affirmed his three convictions by a unanimous unpublished opinion. Johnson v. Commonwealth , Record No. 1138–14–2, 2015 WL 4078146, at *7, 2015 Va. App. LEXIS 211, at *18 (July 7, 2015). Johnson then appealed to this Court.

ANALYSIS

Johnson does not contest the willfulness of his failure to appear. Rather, he argues that he could be convicted of, at most, one count of failure to appear. He contends that double jeopardy protections preclude the Commonwealth from punishing him for "a single act that is not separated by time, space, or intent." In his view, the unit of prosecution or gravamen "of this offense is the failing to appear, not the number of charges then pending against the defendant arising from a single arrest and a single institution of process."

"We review de novo claims that multiple punishments have been imposed 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 Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "This constitutional provision guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Payne v. Commonwealth , 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). See Illinois v. Vitale , 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980) ; North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). "In the single-trial setting, ‘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.’ " Blythe v. Commonwealth , 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) ).

"When considering multiple punishments for a single transaction, the controlling factor is legislative intent." Kelsoe v. Commonwealth , 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983). The legislature "may determine the appropriate ‘unit of prosecution’ and set the penalty for separate violations." Jordan v. Commonwealth , 2 Va.App. 590, 594, 347 S.E.2d 152, 154 (1986). Therefore, although multiple offenses may be the "same," an accused may be subjected to legislatively "authorized cumulative punishments." Id. "It is judicial punishment in excess of legislative intent which offends the double jeopardy clause." Shears v. Commonwealth , 23 Va.App. 394, 401, 477 S.E.2d 309, 312 (1996).

Code § 19.2–128(B) provides that "[a]ny person ... charged with a felony offense ... who willfully fails to appear before any court as required shall be guilty of a Class 6 felony." Subsection (C) of that same statute provides in relevant part that any person who has been "charged with a misdemeanor offense ... who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor."

The plain language of Code § 19.2–128 indicates that the legislature intended to establish each felony charge as the unit of prosecution for a failure to appear. The legislature selected the term "a" felony, thereby indicating that each felony charge could serve as the predicate of a failure to appear conviction. Instead of using the singular "a" felony, the legislature could have stated, for example, that a defendant charged with "one or more felonies" who fails to appear is guilty of a Class 6 felony. It did not. We must presume that the General Assembly chose, with care, the words that appear in a statute, and must apply the statute in a manner faithful to that choice. Rives v. Commonwealth , 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012) (citing Zinone v. Lee's Crossing Homeowners Ass'n , 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011) ).

The symmetry of permitting a failure to appear charge for each underlying felony makes sense. In the context of reviewing a conviction for forging a summons, the Court of Appeals in Hines v. Commonwealth , accurately observed that "[e]ach summons has a separate existence with separate consequences and effects." 39 Va.App. 752, 759, 576 S.E.2d 781, 785 (2003). A person is in violation of Code § 19.2–128 when he "willfully fails to appear before any court as required ." (emphasis added). Three separate summonses independently required Johnson to appear at the General District Court of the City of Fredericksburg at 10:30 a.m. on June 20, 2013. And just as each summons has a separate existence with separate consequences and effects, each felony charge also has separate consequences and effects. A defendant's willful failure to appear prevents the Commonwealth from proceeding on each of the separate felonies and it prevents the court from adjudicating each charge. Justice (whether conviction or acquittal) is thus delayed or denied as to each specific felony. In addition, the defendant's absence will often, if not always, inconvenience multiple witnesses called to testify in separate but related cases. The fact that Johnson's three separate felonies were scheduled to be heard at one time for the efficient administration of justice does not change the result. The net effect of his willful failure to appear were three distinct injuries to the administration of justice, even if these injuries occurred at the same time.

It is not anomalous for the legislature to hold a defendant accountable with multiple charges for an offense that occurred in one place and time. For example, in Kelsoe , we concluded that a defendant could be convicted of three counts of brandishing a firearm when the defendant brandished a gun simultaneously at three individuals. 226 Va. at 199, 308 S.E.2d at 104. Similarly, in Jordan , the Court of Appeals concluded that a defendant could be convicted of multiple robberies when he threatened two employees with his gun at the same time.¹ 2 Va.App. at 596–97, 347 S.E.2d at 156.

Furthermore, as the Commonwealth pointed out at trial and notes again on appeal, Johnson's interpretation would lead to the incongruous result that a defendant charged with three felonies who failed to appear could be convicted of only one felony, whereas a defendant charged with two felonies and one misdemeanor could be convicted of one felony and one misdemeanor. Attempting to avoid this anomaly, Johnson contends that the prosecution in such a scenario would elect to proceed with a felony or a misdemeanor failure to appear. The plain language of the statute does not support this reading. Code § 19.2–128(B) plainly provides "[a]ny person ... charged with a felony offense ... who willfully fails to appear before any court as required shall be guilty of a Class 6 felony." Subsection (C) of that same statute provides that any person who has been "charged with a misdemeanor offense ... who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor."² The statute says nothing about establishing an election between a felony and a misdemeanor in such a situation. We will not " ‘add language to [a] statute [that] the General Assembly has not seen fit to include.’ " Commonwealth v. Amos , 287 Va. 301, 307, 754 S.E.2d 304, 307 (2014) (citations omitted).

We agree with the conclusion of the Court of Appeals, that "the unit of prosecution for failure to appear corresponds to the number of individual felony offenses for which a defendant is obligated to appear." Johnson , 2015 WL 4078146, at *4, 2015 Va. App. LEXIS 211, at *9.

CONCLUSION

We will affirm the judgment of the Court of Appeals.

Affirmed.

JUSTICE MIMS, with whom JUSTICE POWELL joins, dissenting.

I disagree with the Court's holding that the unit of prosecution under Code § 19.2–128(B) is the number of underlying felony offenses with which the defendant was charged. As I interpret the language of that provision, the criminal act is "willfully fail[ing] to appear before any court as required." The summonses here required Johnson to appear at one time and one place, so there is one unit of prosecution. I therefore must respectfully dissent.

When a statute establishes a criminal offense, there is a difference between the elements that set forth the criminal act and those that set forth the grade or classification of punishment. Code § 19.2–128 defines the criminal act as "willfully fail[ing] to appear before...