PRESENT: Hassell, C.J., Lacy, Keenan, Kinser*, Lemons, Koontz,
and Agee, JJ.
JAMES DARRELL WEST
v. Record No. 052263 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 12, 2007
DIRECTOR OF THE
DEPARTMENT OF CORRECTIONS
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
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
*
Justice Kinser did not participate in the decision of this
case.
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 (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
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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
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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
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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 (2003); Strickland
v. Washington, 466 U.S. 668, 685-86 (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 (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; Yarbrough, 269 Va. at 196, 609 S.E.2d at 37; see Wiggins
v. Smith, 539 U.S. 510, 521 (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;
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; see also
Wiggins, 539 U.S. at 521. 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
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professional assistance.” Strickland, 466 U.S. at 689; see also
Kimmelman v. Morrison, 477 U.S. 365, 381 (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; see also Wiggins, 539
U.S. at 534; Lovitt, 266 Va. at 250.
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 (1980); North
Carolina v. Pearce, 395 U.S. 711, 717 (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
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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; 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 (1932); Brown, 432 U.S. at 166; 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 be considered in the abstract, rather
than in the context of the facts of the particular case being
reviewed. Whalen v. United States, 445 U.S. 684, 694 n.8 (1980);
Hudgins, 269 Va. at 606, 611 S.E.2d at 365; Coleman, 261 Va. at
200, 539 S.E.2d at 734.
We conclude that when viewed in the abstract, the charges in
the present case do not qualify as separate offenses within the
meaning of the Blockburger test. The offense of common law
involuntary manslaughter does not require proof of a fact
different from those required for a conviction of aggravated
involuntary manslaughter under Code § 18.2-36.1.
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The statutory offense of aggravated involuntary manslaughter
has three elements: 1) driving under the influence in violation
of Code § 18.2-266 or a substantially similar ordinance; 2)
unintentionally causing the death of another as a result of this
conduct; and 3) acting in a manner “so gross, wanton and culpable
as to show a reckless disregard for human life.” Code § 18.2-
36.1; Stevens v. Commonwealth, 272 Va. 481, 487, 634 S.E.2d 305,
309 (2006). In contrast, the crime of common law involuntary
manslaughter has two elements: 1) the accidental killing of a
person, contrary to the intention of the parties; and 2) the
death occurs in the defendant’s prosecution of an unlawful but
not felonious act, or in the defendant’s improper performance of
a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415
S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470,
536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565,
571, 311 S.E.2d 780, 784 (1984). To constitute involuntary
manslaughter, the “improper” performance of a lawful act must
amount to an unlawful commission of that lawful act, manifesting
criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220;
Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413
(1947).
Because the common law crime of involuntary manslaughter
does not require proof of a fact that is not also required for a
conviction of aggravated involuntary manslaughter under Code
§ 18.2-36.1, convictions for both these offenses resulted in West
receiving multiple punishments for the same offense. Thus, a
timely assertion of the bar of double jeopardy would have
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protected West from receiving multiple punishments for those
convictions. See Brown, 432 U.S. at 165; Stephens, 263 Va. at
62, 557 S.E.2d at 230; Coleman, 261 Va. at 199, 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. We hold that reasonably competent
counsel would have asserted this constitutional guarantee on
West’s behalf at trial, and that counsel’s failure to do so “fell
below an objective standard of reasonableness.” Strickland, 466
U.S. at 687-88.
Having concluded that West did not receive effective
assistance of counsel at trial, we turn to consider the second
part of the Strickland test, commonly referred to as the
“prejudice” prong. We must determine whether counsel’s failure
to assert the bar of double jeopardy at trial prejudiced West,
creating a reasonable probability that, but for counsel’s
failure, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694.
We hold that West suffered prejudice as defined by
Strickland. The additional manslaughter conviction resulted in
West being convicted of two felonies with two distinct
punishments imposed, instead of one felony conviction with one
punishment. The fact that the circuit court imposed the
sentences concurrently, rather than consecutively, does not alter
our conclusion that West was prejudiced. The sentences were
separately imposed and, but for counsel’s failure, West would
have received only one felony conviction with one accompanying
punishment.
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In reaching this conclusion, we reject West’s argument that
he also suffered prejudice because his conviction of the two
felony offenses made him subject to an increased range of
punishment under the sentencing guidelines. West’s argument is
without merit because the guidelines provided by Code § 19.2-
298.01 are discretionary, rather than mandatory. Under that
statute, the circuit court was required only to consider the
sentencing guidelines before sentencing West and to file with the
record of the case a written explanation of any departure from
the indicated range of punishment. Code § 19.2-298.01(B).
Moreover, the statute further provides that the “failure to
follow any or all of the provisions in this section or the
failure to follow any or all of the provisions of this section in
the prescribed manner shall not be reviewable on appeal or the
basis of other post-conviction relief.” Code § 19.2-298.01(F).
Thus, the fact that the sentencing guidelines in West’s case may
have been different had he been convicted only of one, instead of
two felonies, does not provide him any basis for post-conviction
relief on the aggravated involuntary manslaughter conviction in
this habeas corpus petition.
Because West suffered prejudice as defined by Strickland, we
must consider the appropriate relief that he should be afforded.
The Commonwealth requests that this Court, in the exercise of its
discretion, decline to grant West relief from his common law
involuntary manslaughter conviction by applying the “concurrent
sentencing doctrine.” The question whether we should apply this
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“doctrine” presents an issue of first impression in this
Commonwealth.
Other jurisdictions, through application of the “concurrent
sentencing doctrine,” have selectively exercised their discretion
to decline review of the validity of a defendant’s criminal
conviction when 1) a defendant has received two or more
concurrent sentences on multiple counts of an indictment; 2) one
or more of those convictions is not challenged or is upheld as
valid; and 3) a ruling in the defendant’s favor on the remaining
conviction would not reduce the period of imprisonment the
defendant is required to serve on the valid conviction or
convictions. See Williams v. Maggio, 714 F.2d 554, 555 (5th Cir.
1983); United States v. Smith, 601 F.2d 972, 973 (8th Cir. 1979);
United States v. Weems, 414 F.2d 417, 418-19 (2nd Cir. 1969);
State v. Edwards, 755 P.2d 821, 822 (Wash. Ct. App. 1988); Smith
v. State, 443 A.2d 985, 995 (Md. App. 1982). The “concurrent
sentencing doctrine” is not applied, however, in cases in which a
defendant would suffer prejudice or be exposed to a “substantial
risk of adverse collateral consequences that might flow from an
invalid but unreversed conviction.” Smith, 601 F.2d at 973-74
(quoting Sanders v. United States, 541 F.2d 190, 193 n.1 (8th
Cir. 1976)).
The “concurrent sentencing doctrine” is essentially a rule
grounded in judicial economy and convenience. See Benton v.
Maryland, 395 U.S. 784, 792 (1969); United States v. Stovall,
825 F.2d 817, 824 (5th Cir. 1987); United States v. Fuentes-
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Jimenez, 750 F.2d 1495, 1497 (11th Cir. 1985); Atkins v. Hopper,
216 S.E.2d 89, 91 (Ga. 1975); Frizzell v. State, 238 So.2d 67,
69 (1970). Addressing the merits of this doctrine, we observe
that the doctrine assigns a higher priority to concerns of
judicial efficiency than to relief entitled a petitioner under
our federal constitution. Because acceptance of such a
perspective would close the doors of our courts to many
petitioners regardless of the merits of their claims, we decline
to apply the “concurrent sentencing doctrine” in Virginia.
Instead, we adopt the view expressed by the Supreme Court of
Georgia that the burden of any inconvenience in the
administration of our justice system “should rest on the
shoulders of the judiciary rather than on those of an imprisoned
petitioner.” Atkins, 216 S.E.2d at 91. Therefore, we hold that
West is entitled to habeas corpus relief from his common law
involuntary manslaughter conviction and sentence.
We find no merit in the Commonwealth’s argument that based
on our holding in Virginia Parole Bd. v. Wilkins, 255 Va. 419,
421, 498 S.E.2d 695, 696 (1998), we lack jurisdiction to grant a
writ of habeas corpus because our granting of the writ will not
result in West’s release from his immediate detention. In
Wilkins, we considered an appeal in which a circuit court had
granted a writ of habeas corpus, ordering that a prisoner “be
reviewed for parole” within a specified year. Id. at 420, 498
S.E.2d at 695-96. We held that the circuit court erred in
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granting the writ because the writ “is available only [when] the
release of the prisoner from his immediate detention will follow
as a result of an order in his favor.” Id. at 420-21, 498 S.E.2d
at 696.
Although West is serving concurrent sentences on the two
manslaughter convictions, our judgment granting a writ of habeas
corpus with regard to his common law involuntary manslaughter
conviction will result in his release from immediate detention on
that conviction and sentence. Therefore, our decision complies
with the purpose and scope of the writ of habeas corpus, which is
to test the legality of a prisoner’s detention. See Code § 8.01-
654; Wilkins, 255 Va. at 420, 498 S.E.2d at 696; McClenny v.
Murray, 246 Va. 132, 134, 431 S.E.2d 330, 331 (1993); Smyth v.
Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958).
Accordingly, for these reasons, we will grant a writ of
habeas corpus with regard to West’s common law involuntary
manslaughter conviction and vacate his conviction and sentence on
that offense. We will dismiss the remainder of West’s petition
including his request for relief on the aggravated involuntary
manslaughter conviction.
Writ granted in part and dismissed in part.
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