Saunders v. Commonwealth

• Decision Date: 31 October 2017
• Docket Number: Record No. 1828-16-1
• Court: Virginia Court of Appeals
• Parties: REGGIE DONNELL SAUNDERS v. COMMONWEALTH OF VIRGINIA

REGGIE DONNELL SAUNDERS v. COMMONWEALTH OF VIRGINIA

Record No. 1828-16-1

COURT OF APPEALS OF VIRGINIA

OCTOBER 31, 2017

UNPUBLISHED

Present: Chief Judge Huff, Judges Humphreys and Decker

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE 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 possession of oxycodone with intent to distribute in violation of Code § 18.2-248. On appeal, both parties take the position that he committed only a single offense by possessing two bags of the drug and that his conviction and punishment for a second count violated the Double Jeopardy Clause of the United States Constitution. They disagree, however, regarding the proper remedy for the double jeopardy violation. Based upon the Court's independent review, we reverse the circuit court's order convicting and sentencing the appellant for two counts of possessing oxycodone with the intent to distribute it to reflect only one, and we remand for limited action as specifically directed in this opinion.

I. BACKGROUND

On July 2, 2015, detectives with the City of Virginia Beach Police Department observed the appellant engage in what appeared to be a series of drug transactions. When the police approached the appellant as he sat in a car, they saw two bags of pills in his lap and then found an additional bag of pills in his pocket. After being advised of his rights, the appellant admitted that he was selling prescription medications.

Subsequently, an indictment was issued charging the appellant with possession of oxycodone with intent to distribute in violation of Code § 18.2-248. The single indictment contained two generic, identically 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 certificate of analysis reflected that one of the bags contained oxycodone, the second bag contained a mixture of oxycodone and acetaminophen, and the third contained alprazolam.

The appellant was convicted of both counts of possessing oxycodone with the intent to distribute. He was also convicted of distributing alprazolam and distributing a controlled substance within 1000 feet of a school.¹ All convictions were based upon the appellant's guilty pleas.

The circuit court sentenced the appellant to sixteen years in prison for each count of possession of oxycodone with intent to distribute. He was sentenced to five years in prison for distribution of alprazolam and an additional five years for distribution 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 suspended "all but [eight] years."

II. ANALYSIS

Both parties agree that the appellant's conviction and sentence for two counts of possession of oxycodone with intent to distribute violate the constitutional prohibition against double jeopardy on the facts of this case. They disagree, however, regarding the proper remedy for the double jeopardy violation.

Under settled principles, an appellate court may not accept even formal concessions of law without independently confirming their correctness.² Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc); see Jones v. Commonwealth, 293 Va. 29, 59 n.27, 795 S.E.2d 705, 723 n.27, cert. denied, 86 U.S.L.W. 3149 (U.S. Oct. 2, 2017) (No. 16-1337). Consequently, even though the parties agree that a double jeopardy violation occurred, we examine both the double jeopardy issue and the appropriate remedy.

A. Standard of Review

The appellate court reviews de novo a claim 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 same de novo standard applies to review of determinations involving the interpretation of mandatory and discretionary sentencing statutes. See Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

B. Double Jeopardy Violation

The Fifth Amendment of the United States Constitution protects a defendant against double jeopardy. See, e.g., Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). "In the single-trial setting, 'the role of the constitutional guarantee is limited to assuring that the [circuit] 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 (1977)), quoted with approval in Johnson v. Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321, 322-23 (2016). In this context, "the same offense" can include multiple counts of identical offenses arising from the same facts as well as convictions for a greater offense and a lesser-included offense that arise out of the same facts. See, e.g., Commonwealth v. Hudgins, 269 Va. 602, 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 with intent to distribute violates the prohibition against double jeopardy. The Commonwealth candidly agrees. The Commonwealth also takes the position that the appellant did not waive his right to assert the double jeopardy challenge by pleading 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 the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18 applies to bar even constitutional and jurisdictional claims, except those involving subject matter jurisdiction. See Smith v. Commonwealth, 59 Va. App. 710, 723-24, 722 S.E.2d 310, 316 (2012); see also Morency v. Commonwealth, 274 Va. 569, 577, 649 S.E.2d 682, 686 (2007) (applying Rule 5:25, the Supreme Court's counterpart to Rule 5A:18, to hold that an appellant's failure to raise a separation of powers argument in the circuit court prevented him from asserting such an argumentfor the first time on appeal). In keeping with these principles, under certain circumstances, a defendant may waive a double jeopardy violation by pleading guilty. 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, 732 (2012) (providing that a guilty plea is ordinarily "a waiver of all defenses other than those jurisdictional" (quoting Peyton v. King, 210 Va. 194, 196, 169 S.E.2d 569, 571 (1969))).

The appellant argues that the ends of justice exception to Rule 5A:18 permits him to raise a double jeopardy claim despite the fact that he entered guilty pleas 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. Commonwealth, 43 Va. App. 327, 338, 597 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 occurred and application "is necessary to avoid a grave injustice or the denial of essential rights." Brown v. Commonwealth, 279 Va. 210, 219, 688 S.E.2d 185, 190-91 (2010) (quoting Charles v. Commonwealth, 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 the reasons that follow.³

Under United States Supreme Court precedent, a double jeopardy claim survives a guilty plea if it is obvious from the "indictment[] and the existing record" 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 Constitution from haling a defendant into court on a charge, . . . a conviction on that charge [must] be set aside even if the conviction was entered pursuant to a counseled plea of guilty." (quoting Menna, 423 U.S. at 62)). In the context of cases involving both multiple prosecutions and multiple punishments rendered in a single prosecution, a guilty plea does not bar a challenge on double jeopardy grounds where "the claim is that the [Commonwealth] may not convict [the defendant] no matter how validly his factual guilt is established." Menna, 423 U.S. at 62 n.2; see Kaiser v. United States, 489 U.S. 1002 (1989) (vacating and remanding in light of Broce in a case involving multiple punishments in a single prosecution in which the Court of Appeals had held that no double jeopardy violation occurred), on remand, 893 F.2d 1300, 1302-03, 1306-07 (11th Cir. 1990) (applying Broce and Menna to hold that a double jeopardy violation occurred in the single prosecution).

In the case of multiple convictions for possession of the same controlled substance, case law holds that multiple punishments for such convictions violate the Double Jeopardy Clause if the acts of possession are not "sufficiently differentiated by time, location, or intended purpose." Peake v. Commonwealth, 46 Va. App. 35, 41, 614 S.E.2d 672, 676 (2005) (quoting Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000)). In Lane v. Commonwealth, 51 Va. App. 565, 659 S.E.2d 553 (2008), for...