Ostrander v. Com.

Decision Date18 March 2008
Docket NumberRecord No. 2194-06-1.
Citation658 S.E.2d 346,51 Va. App. 386
PartiesPhillip James OSTRANDER, s/k/a Philip James Ostrander v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), Norfolk, for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS, CLEMENTS and HALEY, JJ.

CLEMENTS, Judge.

Phillip James Ostrander (appellant) was convicted and sentenced for solicitation to commit murder, in violation of Code § 18.2-29, and attempted capital murder for hire, in violation of Code §§ 18.2-31(2) and 18.2-25. On appeal, appellant contends his prosecution for attempted murder for hire was barred on double jeopardy grounds by his guilty plea to the solicitation to commit murder offense. Alternatively, he contends the imposition of sentences for both offenses violated the constitutional prohibition against multiple punishments for the same offense. Finding no error, we affirm appellant's convictions and sentences.

I. BACKGROUND

As a result of appellant's efforts "on or about August 28, 2005" to have the purported paramour of his estranged wife killed, appellant was indicted by a grand jury for attempted capital murder and for solicitation to commit murder. At the beginning of the trial on those charges, appellant pled guilty to the solicitation to commit murder charge. He then moved to dismiss the attempted capital murder for hire charge, arguing the prosecution of that charge was barred on double jeopardy grounds because solicitation to commit murder is a lesser-included offense of attempted capital murder for hire. The trial judge accepted appellant's guilty plea and took appellant's motion to dismiss under advisement. Immediately thereafter, appellant pled not guilty to the attempted capital murder for hire charge and was tried by a jury on that charge.

At the close of the Commonwealth's evidence, appellant renewed his double jeopardy motion to dismiss the attempted capital murder for hire charge, asserting that no evidence was presented "that would separate" the attempted capital murder for hire charge from the solicitation to commit murder charge. "[I]n order to hire somebody to commit a capital murder," defense counsel argued, "you have to solicit them. It's part and parcel in the hiring."

In response, the prosecutor argued that the evidence established that appellant committed two "distinct offenses:"

One, we have solicitation where the defendant asks [his acquaintance in July 2005] to arrange for the killing of [appellant's wife's purported paramour]. That would be enough for the court to find him guilty of solicitation to commit murder, just for asking another individual to do that. Then we have attempted capital murder which requires the overt yet ineffectual act to commit the crime of murder. [On August 28, 2005,] we have the defendant showing the undercover hit man and [the acquaintance] around town where the locations of the hit could occur. We also have the defendant handing over cash to them. This is an overt act toward the commission of the murder.

The trial judge replied that the Commonwealth's position "may well be true" if the Commonwealth had chronologically distinguished the two offenses in the indictments, "but the indictments allege that both offenses occurred on August 28th."

Acknowledging he understood the judge's view, the prosecutor further argued that, even when limited to the date alleged in the indictments, the evidence still established two distinct crimes. Apparently rejecting the Commonwealth's argument, the trial judge returned to appellant's double jeopardy argument, noting that, even if "solicitation to commit murder [were] a lesser included offense of attempted capital murder, ... the defendant may be barred from being convicted of both, but he doesn't get to pick which one he's convicted of." Wanting to consider the matter further, however, the trial judge again took appellant's motion to dismiss the attempted capital murder for hire charge under advisement.

At the close of all the evidence, appellant again renewed his motion and the trial judge continued to take it under advisement. The jury found appellant guilty of attempted capital murder for hire and recommended a sentence of thirty years' imprisonment.

At the sentencing hearing, the trial judge heard further argument on appellant's double jeopardy motion to dismiss the attempted capital murder for hire charge. Concluding that the "simultaneous prosecution" of the two charges was not barred on double jeopardy grounds, the trial judge denied the motion. Further concluding that, when "examined in the abstract rather than with reference to the facts of the particular case that's under review," solicitation to commit murder and attempted capital murder for hire were "separate offenses," the judge also denied appellant's subsequent double jeopardy motion to vacate the solicitation to commit murder charge and impose sentence solely on the attempted capital murder for hire charge. The judge then convicted appellant, upon his guilty plea, of solicitation to commit murder; sentenced appellant on that conviction to ten years' imprisonment, with all years suspended upon certain conditions; and imposed the thirty-year sentence fixed by the jury on the attempted capital murder for hire conviction.

This appeal followed.

II. ANALYSIS

On appeal, appellant contends the trial judge erred in denying his double jeopardy motion to dismiss the attempted capital murder for hire charge. Alternatively, he contends the trial judge erred in denying his subsequent double jeopardy motion to vacate the solicitation to commit murder charge and impose sentence solely on the attempted capital murder for hire charge. We disagree with both contentions.1

The Double Jeopardy Clauses of the United States and Virginia Constitutions protect "against a second prosecution for the same offense after either an acquittal or a conviction of that offense and against multiple punishments for the same offense." Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001); see Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002) ("Virginia's constitutional guarantee against double jeopardy affords a defendant the same guarantees as the federal Double Jeopardy Clause."). The prohibition against successive prosecutions for the "same offense," however, does not apply where the defendant is tried in a single trial. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984) ("While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution."); Clagett v. Commonwealth, 252 Va. 79, 95, 472 S.E.2d 263, 272 (1996) ("Generally, a defendant cannot be placed in jeopardy more than once for a single criminal act. However, the state may, under one or multiple indictments, charge a defendant using multiple theories concerning the same crime or greater and lesser crimes arising out of the same act or transaction. In such cases, the prohibition against `multiple prosecution' double jeopardy does not apply so long as the defendant is arraigned and tried in a single proceeding."). Indeed, "[i]n the single-trial context ..., `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.'" West v. Dir. of the Dep't of Corr., 273 Va. 56, 63, 639 S.E.2d 190, 195 (2007) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1980)).

Nonetheless, appellant argues his guilty plea to the solicitation to commit murder charge barred any further prosecution on the attempted capital murder for hire charge. Inherent in appellant's argument is the claim that the trial judge's acceptance of appellant's guilty plea on the solicitation charge and appellant's further prosecution on the attempted capital murder charge constituted two separate prosecutions and were thus subject to the constitutional prohibition against successive prosecutions for the "same offense." Such an assertion, however, runs directly counter to the settled principle that a defendant's election to plead guilty at trial to one charge and not guilty to another charge arising from the same criminal act "neither `transform[s] the single prosecution into two separate prosecutions nor capture[s] for [the defendant] any special protections against successive prosecutions under the [D]ouble [J]eopardy [C]lause.'" Rea v. Commonwealth, 14 Va.App. 940, 944, 421 S.E.2d 464, 467 (1992) (quoting Walker v. Commonwealth, 14 Va.App. 203, 205-06, 415 S.E.2d 446, 447 (1992)); see also Stevens v. Commonwealth, 14 Va.App. 238, 242-43, 415 S.E.2d 881, 884 (1992) (holding that the defendant's prosecution for conspiracy to commit murder and the trial court's previous acceptance of the defendant's guilty pleas to other charges arising from the same criminal act did not constitute "successive prosecutions").

In Rea, the appellant in that case was charged with three counts of capital murder and three counts of first-degree murder, all arising from the same incident. 14 Va.App. at 942-43, 421 S.E.2d at 466. After pleading guilty to the first-degree murder charges, the appellant was convicted by a jury on the capital murder charges. Id. at 943, 421 S.E.2d at 466. On appeal, the appellant argued his pleading guilty to the first-degree murder charges "forestalled prosecution of the capital murder charges under principles of constitutional double jeopardy." Id. at 944, 421 S.E.2d at 467. This Court rejected appellant's argument, noting as follows:

[I]n Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984),...

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    • United States
    • Virginia Court of Appeals
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    ...v. Adams, 192 N.W.2d 19, 23 (Mich. Ct. App. 1971)) (emphasis added). Finally, the Commonwealth relies on Ostrander v. Commonwealth, 51 Va. App. 386, 395, 658 S.E.2d 346, 350 (2008), for the proposition that, even if the incidental detention applies, the more serious conviction must be affir......
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