West v. Director of the Department of Corrections

• Decision Date: 12 January 2007
• Docket Number: Record No. 052263.
• Citation: 639 S.E.2d 190
• Court: Virginia Supreme Court
• Parties: James Darrell WEST v. DIRECTOR OF the DEPARTMENT OF CORRECTIONS.

639 S.E.2d 190

James Darrell WEST v. DIRECTOR OF the DEPARTMENT OF CORRECTIONS.

Record No. 052263.

Supreme Court of Virginia.

January 12, 2007.

COPYRIGHT MATERIAL OMITTED

John F. McGarvey, Richmond, for petitioner.

Robert H. Anderson, III, Sr. Asst. Atty. Gen. (Robert F. McDonell, Atty. Gen., on brief), for respondent.

Present: HASSELL, C.J., LACY, KEENAN, KINSER^*, LEMONS, KOONTZ, and AGEE, JJ.

OPINION BY Justice BARBARAMILANO KEENAN.

This petition for a writ of habeas corpus was filed under our original jurisdiction. We consider whether the petitioner, James Darrell West, is entitled to relief for his claim that he was denied his Sixth Amendment right to effective assistance of counsel. West bases his claim on counsel's failure to raise at trial a double jeopardy challenge to West's convictions of both aggravated involuntary manslaughter and involuntary manslaughter.

I. Proceedings

West was indicted for aggravated involuntary manslaughter of Burlia Gene Jenkins, Jr., in violation of Code § 18.2-36.1, common law involuntary manslaughter of Jenkins, punishable under Code § 18.2-36, and operating a motor vehicle while under the influence of alcohol (DUI), in violation of Code § 18.2-266. West was convicted of these offenses after a bench trial in the Circuit Court of Henrico County.

The circuit court sentenced West to ten years' imprisonment with five years suspended for the aggravated involuntary manslaughter conviction, five years' imprisonment for the common law involuntary manslaughter conviction, and a suspended jail sentence of 30 days for the DUI conviction. The circuit court ordered that the sentences for aggravated involuntary manslaughter and common law involuntary manslaughter be served concurrently.

The Court of Appeals affirmed West's convictions. West v. Commonwealth, 43 Va.App. 327, 597 S.E.2d 274 (2004). We affirmed the Court of Appeals' judgment by order, holding that the Court of Appeals correctly concluded West did not preserve at trial the double jeopardy argument he asserted on appeal. West v. Commonwealth, Record No. 041641 (March 18, 2005).

West filed a petition for a writ of habeas corpus in this Court invoking our original jurisdiction under Code § 8.01-654. We placed this proceeding on our privileged docket, limited to the following question:

Was counsel's failure to object to petitioner's convictions for both involuntary manslaughter and aggravated involuntary manslaughter as violating double jeopardy prejudicial within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, if so, can this Court grant relief where the remedy will not result in petitioner's release from prison as his sentences are being served concurrently?

II. Facts

On April 17, 2002, Burlia Gene Jenkins, Jr. died from injuries sustained in a car accident. The accident occurred when the vehicle West was driving struck the rear of Jenkins' truck, causing the truck to veer from the road and overturn. Two hours after the accident, West was given a test to determine his blood alcohol content. The test showed that West's blood alcohol content was .10 by weight by volume.

At trial, the Commonwealth asserted that the Fifth Amendment Double Jeopardy Clause would not bar a conviction for both involuntary manslaughter and aggravated involuntary manslaughter. The Commonwealth contended that the common law offense of involuntary manslaughter was not a lesser-included offense of the statutory crime of aggravated involuntary manslaughter. At the sentencing hearing, however, the Commonwealth asked that the circuit court "let the Court of Appeals determine which conviction lies."

In response, West moved to strike the aggravated involuntary manslaughter conviction, arguing that the Commonwealth was required to "make an election" between that offense and the involuntary manslaughter conviction. West did not state, however, that his argument rested on constitutional or double jeopardy grounds.

III. Discussion

West argues that based on his counsel's failure to raise a double jeopardy objection to his convictions for both aggravated involuntary manslaughter and common law involuntary manslaughter, he was prejudiced within the meaning of Strickland. West contends that absent counsel's ineffective assistance, West would not have been convicted of common law involuntary manslaughter. He further asserts that if he had not been convicted of that offense, he would have qualified under the sentencing guidelines provided pursuant to Code § 19.2-298.01 for a lower recommended sentence on the aggravated involuntary manslaughter conviction. Thus, West maintains, the circuit court would have imposed a shorter penitentiary sentence.

In response, the Commonwealth argues that West was not prejudiced within the meaning of Strickland because he has failed to establish that the circuit court would have imposed a lesser punishment had the common law involuntary manslaughter charge been dismissed. According to the Commonwealth, because the sentencing guidelines are not mandatory, any increase in the guideline range of punishment resulting from West's conviction on both manslaughter charges would not support a conclusion of prejudice. Alternatively, the Commonwealth argues that even if West was prejudiced by counsel's error, this Court lacks jurisdiction to vacate West's common law involuntary manslaughter conviction because such relief would not result in his immediate release.

In deciding these issues, we first consider whether West was denied his Sixth Amendment right to counsel based on counsel's failure to argue at trial that the Fifth Amendment Double Jeopardy Clause barred West from being convicted of both the aggravated involuntary manslaughter and the common law involuntary manslaughter charges. The Sixth Amendment right to counsel includes the right to the effective assistance of counsel. Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003); Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Yarbrough v. Warden, 269 Va. 184, 196, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden, 266 Va. 216, 248, 585 S.E.2d 801, 820 (2003), cert. denied, 541 U.S. 1006, 124 S.Ct. 2018, 158 L.Ed.2d 523 (2004). This constitutional guarantee entitles a defendant in a criminal trial to reasonably competent counsel who provides assistance that is within the range of competence required of attorneys in criminal cases. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Yarbrough, 269 Va. at 196, 609 S.E.2d at 37; see Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

To prevail on a claim of ineffective assistance of counsel, a petitioner ordinarily must satisfy both parts of the two-part test stated in Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Yarbrough, 269 Va. at 196, 609 S.E.2d at 37; Lovitt, 266 Va. at 249, 585 S.E.2d at 820. The petitioner first must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; see also Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. In resolving this issue, the court reviewing the habeas petition "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Yarbrough, 269 Va. at 196, 609 S.E.2d at 37.

When a reviewing court concludes that counsel's performance was deficient under the first part of the Strickland test, the petitioner is required, under the second part of the Strickland test, to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; Lovitt, 266 Va. at 250, 585 S.E.2d 801.

In the present case, we conclude that counsel's performance fell below an objective standard of reasonableness. The Fifth Amendment Double Jeopardy Clause provides three guarantees: 1) protection against a second prosecution for the same offense after acquittal of that offense; 2) protection against a second prosecution for the same offense after conviction of that offense; and 3) protection against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229-30 (2002); Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001); Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999); Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981). In the single-trial context applicable here, "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." Brown, 432 U.S. at 165, 97 S.Ct. 2221; Stephens, 263 Va. at 62, 557 S.E.2d at 230; Coleman, 261 Va. at 199-200, 539 S.E.2d at 734; Payne, 257 Va. at 227, 509 S.E.2d at 300; Blythe, 222 Va. at 725, 284 S.E.2d at 798.

In determining whether a defendant who has been convicted of two offenses may receive multiple punishments, the test to be applied is "whether each [offense] requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Brown, 432 U.S. at 166, 97 S.Ct. 2221; Commonwealth v. Hudgins, 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005); Alston v. Commonwealth, 264 Va. 433, 438, 570 S.E.2d 801, 804 (2002); Coleman, 261 Va. at 200, 539 S.E.2d at 734. In applying this test, the two offenses must...