Severance v. Commonwealth

• Decision Date: 19 July 2018
• Docket Number: Record No. 170829
• Citation: 295 Va. 564,816 S.E.2d 277
• Parties: Charles Stanard SEVERANCE v. COMMONWEALTH of Virginia
• Court: Virginia Supreme Court

295 Va. 564

816 S.E.2d 277

Charles Stanard SEVERANCE

v.COMMONWEALTH of Virginia

Record No. 170829

Supreme Court of Virginia.

JULY 19, 2018

James W. Hundley (Briglia Hundley, on briefs), Vienna, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

A jury found Charles Stanard Severance guilty of murdering three residents of Alexandria, Virginia. Severance received a separate punishment for each murder. He appealed to the Court of Appeals, arguing that two of his three punishments violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. The Court of Appeals disagreed. See Severance v. Commonwealth , 67 Va.App. 629, 799 S.E.2d 329 (2017). Severance now repeats that argument before this Court.¹ We likewise disagree and affirm.

I.

In December 2003, Severance murdered Nancy Dunning. In November 2013, he murdered Ronald Kirby. In February 2014, he murdered Ruthanne Lodato. Severance committed various other crimes in addition to these murders,² none of which are before us on appeal. All of his targeted victims were, as Severance put it, members of the "enforcement class" of society and the murders were part of his so-called "tomahawking [the] homestead" plan for retribution. R. at 6454. His three victims included the wife of an Alexandria sheriff, a regional transportation director, and a daughter of an Alexandria Circuit Court judge.

A grand jury issued a multi-count indictment against Severance. Two counts are relevant to this appeal. The first charged Severance with the capital murder of Kirby in 2013. The second charged him with the capital murder of Lodato in 2014. Both relied upon Code § 18.2-31(8), which deems "[t]he willful, deliberate, and premeditated killing of more than one person within a three-year period" to be capital murder. A jury found Severance guilty of both charges, concluding that he murdered Kirby within three years of murdering Lodato and that he murdered Lodato within three years of murdering Kirby.

Prior to the sentencing phase of his trial, Severance argued that punishing him for two capital murder convictions under Code § 18.2-31(8)"would violate double jeopardy." J.A. at 16. After the trial court deferred ruling on the issue, the jury recommended life sentences for both capital murder convictions under Code § 18.2-31(8).³ Severance filed a motion to preclude sentencing for both capital murder convictions "[p]ursuant to the Double Jeopardy Clause of the Fifth Amendment." J.A. at 46.

In that motion, like his earlier objection at trial, Severance did not assert that the text of Code § 18.2-31(8) forbids capital murder convictions for the separate murders of Kirby and Lodato. Instead, invoking Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Severance argued that convicting him for both murders under Code § 18.2-31(8) —which the statute did not prohibit—would be a constitutional violation of the prohibition against multiple punishments in the Double Jeopardy Clause only if he were punished for both convictions.

At a later hearing on Severance’s double jeopardy motion, the trial court observed that the legislature

could have said that if a second murder is committed within three years, that second murder becomes a capital murder. In other words, they could have put in a temporal limitation which meant that only the second murder could be capital murder.

But by not putting in a temporal limitation, they elevated both murders. They elevated both the first and the second murder into capital murders. So it ... represents a legislative judgment that we would view that second murder as such a[n] additional grave act in light of the first murder, and an individual who committed that second murder ... [is] deemed to know that the legislature was going to treat that first murder as a capital murder as a result.

I mean, there’s no reason for this Court to conclude that that doesn’t represent a legislative judgment.

J.A. at 64-65. Severance’s counsel responded, "I couldn’t agree more. That is exactly right ...."⁴ Id. at 65.

The trial court rejected Severance’s double jeopardy argument, convicted him of two counts of capital murder, and imposed two life sentences. In the Court of Appeals, Severance challenged the sentencing imposed for his two capital murder convictions solely on the ground that the constitutional "prohibition against double jeopardy precluded the trial court from sentencing [him] for both capital murder counts." Petition for Appeal at 60, Severance , 67 Va.App. 629, 799 S.E.2d 329 (Record No. 0308-16-4) [hereinafter CAV Pet.] (emphasis added); see also Appellant’s Br. at 40, Severance , 67 Va.App. 629, 799 S.E.2d 329 (Record No. 0308-16-4) [hereinafter CAV Appellant’s Br.].

In both his petition for appeal and opening brief before the Court of Appeals, Severance conceded that "the Commonwealth in this case was free to seek indictments for two counts [of] capital murder under [ Code §] 18.2-31(8) for the murders of Ruthann[e] Lodato and Ronald Kirby in order ‘to supply the numerical ingredient’ to charge capital murder of more than one person within a three-year period." CAV Pet. at 63 (citation omitted); see also CAV Appellant’s Br. at 42. In his reply brief in the Court of Appeals, Severance again conceded that the Commonwealth could "indict a defendant for multiple capital murders when those murders occur within the same three-year period." Reply Br. at 8, Severance , 67 Va.App. 629, 799 S.E.2d 329 (Record No. 0308-16-4) [hereinafter CAV Reply Br.]. The Commonwealth, he added, may also "obtain[ ] convictions for each indictment."⁵ Id.

Despite the statute’s authorization of separate indictments and convictions for each murder, Severance argued that the "imposition of capital sentences for both murders" violated the multiple-punishments doctrine inherent in the Double Jeopardy Clause. CAV Pet. at 63; see also CAV Appellant’s Br. at 42-43. The Court of Appeals disagreed and held that no double jeopardy violation occurred because Severance was not sentenced twice for the same crime. Instead, Severance received one sentence for one murder and another sentence for another murder—"separate murders that were committed months apart at separate locations." Severance , 67 Va.App. at 651, 799 S.E.2d at 339.

II.

A.

On appeal to us, Severance again concedes that "the Commonwealth in this case was free to seek indictments for two counts of capital murder under [Code] § 18.2-31(8) for the murders" of Kirby and Lodato "in order ‘to supply the numerical ingredient’ to charge capital murder [for the murder] of more than one person within a three-year period." Appellant’s Br. at 10-11 (citation omitted). He does not argue—and has never argued—that Code § 18.2-31(8) itself forbids either charging or convicting a defendant for the capital murder of two separate victims within the three-year period.⁶ Instead, Severance claims only that "imposing capital sentences for each murder" violates his double jeopardy rights, and thus, "the Commonwealth should have elected which of the indictments it sought to proceed upon to seek a capital sentence ." Appellant’s Br. at 11 (emphases added).

B.

Severance’s multiple-punishments argument fails for several reasons. The most fundamental flaw is his reliance on Blockburger . By framing his argument this way, Severance asks the wrong question and, as a result, arrives at the wrong answer. As the Court of Appeals recognized, "the Blockburger test only applies when ‘the same act or transaction constitutes a violation of two distinct statutory provisions.’ " Severance , 67 Va.App. at 650-51, 799 S.E.2d at 339 (emphasis in original) (citation omitted). The Court of Appeals is correct. "The assumption underlying the [ Blockburger test] is that [the legislature] ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States , 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). It is only in this one-offense/two-statutes context that the problematic statutes "are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Id. at 692, 100 S.Ct. 1432.

In this case, Severance committed two separate acts of murder, twice violating the same statutory provision. In light of "the two capital murders in th[is] case," the Court of Appeals correctly reasoned, "it is unnecessary to apply the Blockburger test." Severance , 67 Va.App. at 651, 799 S.E.2d at 339. "The fact that each murder provided the predicate offense for a conviction under Code § 18.2-31(8) does not limit appellant’s liability for conviction and sentencing on both charges." Id. at 653, 799 S.E.2d at 340. There is "no temporal restriction mandating that the first of the two murders is a predicate murder and only the second is a capital murder."⁷ Id.

A criminal statute, either by its text alone or with the amplification of common-law presuppositions, determines the permissible unit of prosecution. See Johnson v. Commonwealth , 292 Va. 738, 741, 793 S.E.2d 321, 323 (2016) (determining the appropriate "unit of prosecution" by analyzing legislative intent (citation omitted) ). As Severance concedes, the Commonwealth can charge separate murders separately under Code § 18.2-31(8), and it necessarily follows that each charge for murder can result in a separate conviction under the statute.

Severance claims that, with or without Blockburger , overarching double jeopardy principles permit a court to impose punishment under Code § 18.2-31(8) for only one of those convictions for murder. We know of no precedent for this view. 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." U.S. Const. amend. V.⁸ This...