Commonwealth v. Murphy

FROM THE CIRCUIT COURT OF NELSON COUNTY Michael R. Doucette, Judge

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant Attorney General, on briefs), for appellant.

Thomas L. Phillips, Jr. (Phillips, Morrison & Ferrell, L.L.P., on brief), for appellee.

Present: Judges Humphreys, At Lee and Raphael

MEMORANDUM OPINION ^[*]

ROBERT J. HUMPHREYS JUDGE

On November 24, 2020, a Nelson County grand jury indicted James Daniel Murphy ("Murphy") for two violations of Code § 46.2-357-driving while declared a habitual offender and driving that endangers another person while declared a habitual offender-and also two violations of Code § 46.2-391-driving while revoked in a manner that endangered another person and driving while intoxicated ("DWI") while his license was revoked. Pursuant to Code § 19.2-266.2, Murphy moved, pretrial, to dismiss the indictments alleging violations of Code § 46.2-391 on double jeopardy grounds arguing that he could not be punished under both Code § 46.2-391 and Code § 46.2-357. The Circuit Court for Nelson County ("circuit court") granted Murphy's motion and dismissed the two Code § 46.2-391 indictments.

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The Commonwealth appeals pursuant to Code § 19.2-398(A)(1) and raises one assignment of error:

The trial court erred in holding the appellee would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States and Article I, Section 8 of the Constitution of Virginia because the General Assembly did intend that a criminal defendant could be punished in the same trial for a violation of Va Code § 46.2-357 and Va. Code § 46.2-391 arising out of the same driving behavior

Additionally, this Court requested that the parties brief the following issue:

What effect, if any, does the repeal of Code § 46.2-357 effective July 1, 2021, have upon the current proceedings against appellee in the trial court

I. Background

On March 5, 1996, the Virginia Department of Motor Vehicles ("DMV") declared Murphy a habitual offender pursuant to Code § 46.2-352 for reasons which the record does not reflect. On July 23, 2002, the Circuit Court for the City of Lynchburg revoked Murphy's license for a third DWI conviction pursuant to Code § 46.2-391. The present indictments allege alternative violations of two different offenses.

The indictments specify that on July 8, 2020, Murphy operated a vehicle in such a manner as to endanger the life of another while his license was revoked in violation of Code § 46.2-391, and with driving while under the influence of alcohol while his license was revoked in violation of the same code section. Murphy was also separately charged with driving after being declared a habitual offender whose driving privileges were revoked, and with driving after being declared a habitual offender endangering another person after his license was revoked in violation of Code § 46.2-357(B)(1), (2). The Commonwealth concedes that Murphy could be punished for only two of the charged offenses-one instance of a violation of each code section.

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Conversely, Murphy contends that he can only be tried for one of the four offenses. At the time of the indictment, ^[1] Code § 46.2-357, in relevant part, read as follows:

A. It shall be unlawful for any person determined or adjudicated an habitual offender to drive any motor vehicle or self-propelled machinery or equipment on the highways of the Commonwealth while the revocation of the person's driving privilege remains in effect. . . .

B. Except as provided in subsection D, any person found to be an habitual offender under this article, who is thereafter convicted of driving a motor vehicle or self-propelled machinery or equipment in the Commonwealth while the revocation determination is in effect, shall be punished as follows:

1. If such driving does not of itself endanger the life, limb, or property of another, such person shall be guilty of a Class 1 misdemeanor punishable by a mandatory minimum term of confinement in jail of 10 days . . . .

2. If such driving of itself endangers the life, limb, or property of another . . . such person shall be guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than five years . . . .

. . . .

C. For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle or self-propelled machinery or equipment while his license, permit, or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing the charge shall determine whether the person has been determined an habitual offender and, by reason of this determination, is barred from driving a motor vehicle or self-propelled machinery or equipment on the highways in the Commonwealth. If the court determines the accused has been determined to be an habitual offender and finds there is probable cause that the alleged offense under this section is a felony, it shall certify the case to the circuit court of its jurisdiction for trial.

The Commonwealth conceded in its argument to the circuit court that Murphy could not be punished for both charges of violating Code § 46.2-357.

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Additionally, the Commonwealth charged Murphy in the alternative for violations of Code § 46.2-391(D)(1), (2). Code § 46.2-391 reads, in relevant part, as follows:

D. Any person convicted of driving a motor vehicle or any self-propelled machinery or equipment (i) while his license is revoked [for a felony DWI or other serious predicate offense] . . . shall, provided such revocation was based on at least one conviction for an offense committed after July 1, 1999, be punished as follows:

1. If such driving does not of itself endanger the life, limb, or property of another, such person shall be guilty of a Class 1 misdemeanor punishable by a mandatory minimum term of confinement in jail of 10 days . . . .

2.a. If such driving (i) of itself endangers the life, limb, or property of another . . . such person shall be guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than five years . . . .

Again, the Commonwealth conceded in its argument to the circuit court that Murphy could not be punished for both charges of violating Code § 46.2-391.

On January 7, 2021, Murphy filed a plea of double jeopardy pursuant to Code § 19.2-266.2. In his plea, Murphy argued that the Fifth Amendment's prohibition on double jeopardy precluded the Commonwealth from punishing him for violations of both Code § 46.2-357 and Code § 46.2-391 for the same alleged criminal conduct. Murphy conceded that the two statutes did not constitute the same offense under the Blockburger test but argued that the clear language of the statute and the legislative history indicated legislative intent to prohibit punishment for both offenses. After hearing argument, the circuit court agreed with Murphy and dismissed the charges relating to Murphy's violation of Code § 46.2-391 by written order entered on June 2, 2021.^[2] The circuit court's letter opinion reasoned that

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The language of subsection C [of § 46.2-357] pre-dates the 1999 wholesale changes made to Article 9 (Habitual Offenders) and Article 12 (Suspension and Revocation of Licenses) of Chapter 3 of Title 46.2. By leaving this language in VA Code § 46.2-357, whether in 1999 or in any of the subsequent amendments to this statute, the General Assembly clearly intended the clear meaning of the subsection's language should survive-that a criminal defendant could be punished for violating one section or the other, but not both.

The circuit court accordingly dismissed the Code § 46.2-391 charges "as violative of the defendant's right to [be] free from double jeopardy." Pursuant to Code § 19.2-398(A)(1), the Commonwealth noted its appeal to this Court.

II. Analysis

The Commonwealth contends that the circuit court erred by finding that Murphy would be twice placed in jeopardy by the Commonwealth simultaneously trying him for violations of both Code § 46.2-357 and Code § 46.2-391. This Court reviews constitutional issues de novo. Groffel v. Commonwealth, 70 Va.App. 681, 687 (2019).

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. The Virginia Constitution has a similar clause that encompasses the same protections afforded by the Fifth Amendment's Double Jeopardy Clause. Va. Const. art. 1, § 8; Green v. Commonwealth, 65 Va.App. 524, 532 (2015). The Double Jeopardy Clause provides "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." Commonwealth v. Gregg, 295 Va. 293, 298 (2018) (quoting Payne v. Commonwealth, 257 Va. 216, 227 (1999)). When an accused is tried for multiple offenses in the same trial, only the third prohibition is at issue. Turner v. Commonwealth, 221 Va. 513, 529-30 (1980).

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In the single trial context, the Double Jeopardy Clause only prohibits multiple punishments for the same offense. Andrews v. Commonwealth, 280 Va. 231, 279 (2010). The Commonwealth is entitled to indict and try as many charges as it believes that it can prove. See id. at 287-88. The Double Jeopardy Clause simply does not prohibit the Commonwealth from trying a defendant on multiple charges, even for the same offense, in a single trial. Accordingly, any violation of the Fifth...