Present: All the Justices
MATTHEW S. PHILLIPS
v. Record No. 981829 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The issue presented in this appeal is whether Code § 19.2-
294 bars a defendant's conviction on two felony charges of
selling marijuana on school property, after he had been
convicted in the general district court on two misdemeanor
charges of distribution of marijuana based on the same acts.
The parties stipulated to the following facts. In March
1996, two arrest warrants were issued against Matthew S.
Phillips, charging him with felony offenses of selling marijuana
on the grounds of Lebanon High School in Russell County, on or
about January 19 and 24, 1996, in violation of Code § 18.2-
255.2. One week later, two more arrest warrants were issued
against Phillips charging him with misdemeanor offenses of
distributing less than a half-ounce of marijuana on or about
January 19 and 24, 1996, in violation of Code § 18.2-248.1,
based on the same acts as the felony charges.
On October 29, 1996, Phillips appeared in the General
District Court of Russell County on all four charges. At that
hearing, Phillips was tried and convicted on the two misdemeanor
charges and waived a preliminary hearing on the two felony
charges. The grand jury later indicted Phillips on the two
felony charges.
Phillips filed a motion to quash the two felony indictments
in the Circuit Court of Russell County. He argued that
prosecution of the felony indictments was barred by his
convictions on the two misdemeanor charges arising from the same
acts. The trial court denied the motion, ruling that Phillips
had not been subjected to successive prosecutions within the
meaning of Code § 19.2-294. Phillips then entered conditional
guilty pleas to the two felony charges, as permitted under Code
§ 19.2-254, thereby reserving the right to appeal the trial
court's denial of his motion to quash. The trial court accepted
the pleas and sentenced Phillips to two concurrent terms of five
years' imprisonment, which the court suspended on the condition
that Phillips serve twelve months in jail.
Phillips noted an appeal of the felony convictions to the
Court of Appeals. In a published opinion, a panel of the Court
of Appeals affirmed the convictions, holding that when felony
and misdemeanor charges are brought at separate times, they
nevertheless are part of a single prosecution if the cases are
heard in a single, evidentiary hearing. Phillips v.
Commonwealth, 27 Va. App. 674, 680-81, 500 S.E.2d 848, 851
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(1998). We awarded this appeal after the Court of Appeals
denied Phillips' petition for a rehearing en banc.
Code § 19.2-294 provides, in relevant part:
If the same act be a violation of two or more
statutes, or of two or more ordinances, or of one or
more statutes and also one or more ordinances,
conviction under one of such statutes or ordinances
shall be a bar to a prosecution or proceeding under
the other or others.
Phillips first argues that, under the language of Code
§ 19.2-294, his convictions in the general district court barred
any further "proceeding" arising out of the same acts, including
the later indictments and hearings in the circuit court on the
felony charges. We do not reach the merits of this argument,
however, because Phillips failed to raise it in the trial court.
There, Phillips argued that Code § 19.2-294 barred the felony
prosecutions because all four warrants, felony and misdemeanor,
were not issued on the same date. He advanced the same argument
before the panel of the Court of Appeals. Since Phillips did
not give the trial court the opportunity to address the argument
he raises here, we decline to consider it. Rule 5:25. *
*
Phillips raises two additional assignments of error that
are procedurally barred. First, he asserts that the Court of
Appeals "erred by ignoring the legislative history underlying
Code § 19.2-294 and the fact that the statute refers
disjunctively to 'prosecution' or 'proceeding.'" Second, he
argues that the Court of Appeals "erred by ignoring the fact
that Code § 19.2-294 is remedial legislation relating to matters
of a penal nature and, thus, must be construed strictly against
the Commonwealth and favorably to the accused." We do not
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Phillips next argues that, in upholding his convictions,
the Court of Appeals erred in effectively overruling its
decision in Slater v. Commonwealth, 15 Va. App. 593, 425 S.E.2d
816 (1993). He asserts that, under Slater, a prosecution begins
when a criminal charge is instituted and that, therefore,
charges instituted on different dates do not arise from a single
prosecution. Phillips contends that since the present felony
warrants were not issued simultaneously with the misdemeanor
warrants, the felony charges were not part of the same
prosecution as the misdemeanor charges and were subject to the
successive prosecution bar of Code § 19.2-294. We disagree with
Phillips.
Although the language of Code § 19.2-294 does not state
that it provides a defense of former jeopardy, "it amounts to
such a defense in purpose and desired effect." Epps v.
Commonwealth, 216 Va. 150, 155, 216 S.E.2d 64, 68 (1975); Sigmon
v. Commonwealth, 200 Va. 258, 263, 105 S.E.2d 171, 175-76
(1958). Like the Fifth Amendment bar of former jeopardy, Code
§ 19.2-294 prevents the Commonwealth from "subjecting an accused
to the hazards of vexatious, multiple prosecutions." Hall v.
Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460 (1992)
(en banc). By its terms, the statute does not apply to
address these assignments of error because Phillips did not
argue these issues in the trial court and before the panel of
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simultaneous prosecutions, because only a prior conviction for
the violation of an act will bar a later prosecution for the
same act. Thus, the question before us is whether Phillips'
felony charges were the subject of a simultaneous or a
successive prosecution.
In Slater, a defendant was charged, based on the same act,
with driving after having been adjudged an habitual offender, a
felony offense, and driving while under the influence of
alcohol, a misdemeanor offense. As noted by the Court of
Appeals in Phillips, a single evidentiary hearing was conducted
in Slater in the general district court, involving a trial on
the misdemeanor charge and a preliminary hearing on the felony
charge. The defendant was convicted on the misdemeanor charge
and the felony charge was certified to the grand jury of the
circuit court, where the defendant was later indicted, tried,
and convicted of the felony charge. Phillips, 27 Va. App. at
678, 500 S.E.2d at 850.
The Court of Appeals concluded in Slater that the defendant
was not subjected to a successive prosecution on the felony
charge. 15 Va. App. at 596, 425 S.E.2d at 817. In reaching
this decision, the Court stated that "the time of institution"
of criminal charges determines whether multiple charges based on
the same act are simultaneous or successive. Id. The Court
the Court of Appeals. Rule 5:25.
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also relied on Freeman v. Commonwealth, 14 Va. App. 126, 414
S.E.2d 871 (1992), stating that when "charges are brought
simultaneously, the amenability of one to early conclusion while
the other requires further proceedings, does not alter the fact
that the proceedings are concurrent, not successive." Slater,
15 Va. App. at 595, 425 S.E.2d at 817.
In the present case, the Court of Appeals distinguished its
holding in Slater by stating that the simultaneous initiation of
criminal charges is not the exclusive factor in determining
whether those charges have been resolved in a simultaneous
prosecution. The Court stated that an overriding factor, which
was also present in Slater, is "whether the offenses were
prosecuted in a single, concurrent evidentiary hearing."
Phillips, 27 Va. App. at 680, 500 S.E.2d at 851. Thus, the
Court concluded that when "felony and misdemeanor charges are
instituted at separate times, but are heard simultaneously in a
single proceeding, they are part of a single prosecution, even
though jurisdictional limitations necessitate that they be
concluded in different courts." Id. at 680-81, 500 S.E.2d at
851.
We conclude that the Court of Appeals properly limited its
holding in Slater to the particular facts presented in that
case. The procurement of arrest warrants on different dates
does not automatically trigger the successive prosecution bar of
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Code § 19.2-294. Since the bar is intended to protect an
accused from the "hazards of vexatious, multiple prosecutions,"
the bar does not preclude the prosecution of charges in a
single, evidentiary hearing, even though the arrest warrants
were obtained on different dates. In such a situation, the
accused is not subjected to a greater burden than when the
charges are brought simultaneously and heard together. The
accused conducts his defense based on the same trial sequence
and faces the same potential for anxiety, expense, and
punishment.
We also agree with the Court of Appeals' conclusion in this
case that the amenability of the misdemeanor charges to an early
conclusion in the general district court did not result in a
successive prosecution of the felony charges in the circuit
court. See Slater, 15 Va. App. at 595, 425 S.E.2d at 817;
Freeman, 14 Va. App. at 129, 414 S.E.2d at 873. In a criminal
case, a "prosecution" is the process in which an accused is
brought to justice from the time a formal accusation is made
through trial and final judgment in a court of appropriate
jurisdiction. See Sigmon, 200 Va. at 267, 105 S.E.2d at 178.
The present prosecutions were simultaneous, not successive,
because they were joined in a single evidentiary hearing in the
general district court. Thus, the later events in the circuit
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court on the felony charges were merely a continuation of the
same prosecution.
Finally, we note that if the legislature had intended that
the statutory bar apply to such felony cases in the circuit
court, it would have provided that a conviction for a criminal
offense arising out of one act would bar a later conviction for
another offense arising out of the same act. Since the
legislature did not provide restrictive language of this nature
in Code § 19.2-294, we decline to interpret the statute in a
manner that would achieve that result.
For these reasons, we will affirm the Court of Appeals'
judgment.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. Indeed, to be more accurate, I
again respectfully dissent on the same issue. See Hall v.
Commonwealth, 14 Va. App. 892, 903, 421 S.E.2d 455, 462
(1992)(en banc)(Koontz, C. J., dissenting).
Over 100 years ago this Court held that the conviction of
Mary Arrington for the sale of “ardent spirits” without a
license was not barred by her prior conviction for the sale of
that same alcohol on a Sunday. The Court reasoned that
Arrington’s one act of selling alcohol violated two separate
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statutes. Arrington v. Commonwealth, 87 Va. 96, 100, 12 S.E.
224, 225-26 (1890).
Subsequently, the General Assembly enacted the original
version of Code § 19.2-294 (§ 4775 of the Code of 1919), which
provided in pertinent part: “If the same act be a violation of
two or more statutes, . . . a prosecution or proceeding under
one . . . shall be a bar to a prosecution under the other or
others.” Thereafter, this statute was amended and now provides:
“If the same act be a violation of two or more statutes, . . .
conviction under one shall be a bar to a prosecution or
proceeding under the other or others.” (Emphasis added.)
In Owens v. Commonwealth, this Court acknowledged that the
original version of Code § 19.2-294 was enacted “to remove the
apparent hardship manifest in” Arrington. 129 Va. 757, 759, 105
S.E. 531, 531 (1921). The hardship manifest there was that
Arrington “had committed but a single act, but, inasmuch as it
violated two statutes, she was convicted under both.” Id. The
hardship the General Assembly intended to remove by enacting the
original version of Code § 19.2-294 is equally manifest in the
present case.
Phillips’ single act of selling marijuana on July 19, 1996
was a violation of Code § 18.2-255.2, prohibiting as a felony
the sale of marijuana on school property, and Code § 18.2-248.1,
prohibiting as a misdemeanor the sale of not more than a half-
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ounce of marijuana. The same is true of Phillips’ single act of
selling marijuana on January 24, 1996. In my view, the
legislative purpose we acknowledged in Owens is the proper focus
for the analysis of the scope of Code § 19.2-294. That focus,
however, has either been abandoned or lost under judicially
created exceptions or limitations to the application of that
statute not required by its express language.
The majority opinion correctly states the procedural
background that invokes the Code § 19.2-294 issue in this case.
Phillips was convicted in the general district court for the
misdemeanor violations. At that proceeding, he waived a
preliminary hearing on the felony charges. Subsequently, the
grand jury indicted Phillips on the two felony charges, and he
was ultimately tried and convicted on both charges in the
circuit court despite his assertion of the Code § 19.2-294 bar.
There is no dispute that the sale of marijuana was “the same
act” that constituted a violation of the misdemeanor and felony
statutes in the incidents in question. Under these
circumstances, the plain language of Code § 19.2-294 would
appear to provide that the “conviction” under the misdemeanor
statute in the general district court “shall be a bar to a
prosecution or proceeding” under the felony statute in the
circuit court.
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The majority, however, rejects this reading of Code § 19.2-
294 and the above result it mandates. Rather, the majority
concludes that this statute does not apply to “simultaneous
prosecutions” and that Phillips’ felony charges were not the
subject of “successive” prosecutions because the misdemeanor and
felony charges were heard in a “single, evidentiary hearing” in
the general district court. No such limiting language or
express exception appears in the statute. Moreover, the
majority’s analysis ignores the express “prosecution or
proceeding” provision of the statute.
We have previously held that “[t]he key words in [Code
§ 19.2-294] are ‘prosecution or proceeding.’ While they embrace
in some respects the same definition, they are not synonymous.
Neither word is technical and ‘proceeding’ has a broader
meaning.” Sigmon v. Commonwealth, 200 Va. 258, 266, 105 S.E.2d
171, 177 (1958). Pertinent to the present case, in Sigmon we
cited with approval authority defining the word “proceeding” to
include “an inquiry before a grand jury.” Id., 105 S.E.2d at
178. In light of our holding in Sigmon, in my view, there is
simply no basis upon which to limit the application of Code
§ 19.2-294 to “successive prosecutions.” Rather, Phillips’
misdemeanor convictions barred the “proceeding” before the grand
jury and the trial and convictions on the felony charges in the
circuit court.
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But my disagreement with the majority’s analysis does not
end there. The majority essentially adopts the analysis from a
series of decisions of the Court of Appeals holding that Code
§ 19.2-294 does not bar multiple convictions for the same act
under different statutes when those convictions are obtained in
a single trial. See, e.g., Hall, 14 Va. App. at 900, 421 S.E.2d
at 461. In Hall, the Court of Appeals reasoned that “[a]
‘prosecution or proceeding’ after a ‘conviction,’ by definition
requires multiple or successive proceedings or prosecutions.”
Id. at 897, 421 S.E.2d at 459. In order to uphold the single
trial exclusion to the Code § 19.2-294 bar it created in Hall,
in subsequent cases the Court of Appeals held that a
“simultaneously charged” defendant was not subjected to
successive prosecutions where one charge resulted in a
conviction in the general district court while the other
required further proceedings and ultimately resulted in a
conviction in the circuit court. Slater v. Commonwealth, 15 Va.
App. 593, 595-96, 425 S.E.2d 816, 817 (1993); see also Freeman
v. Commonwealth, 14 Va. App. 126, 129, 414 S.E.2d 871, 873
(1992). Thus, in Phillips v. Commonwealth, the Court of Appeals
held that even when the misdemeanor and felony charges are
brought at separate times, they nevertheless are part of a
single prosecution if the cases are heard in a single
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evidentiary hearing. 27 Va. App. 674, 680, 500 S.E.2d 848, 851
(1998).
In Sigmon, as noted by the majority, we stated that
although the language of Code § 19.2-294 does not state that it
provides a constitutional defense of former jeopardy, “it
amounts to such a defense in purpose and desired effect.”
Sigmon, 200 Va. 263, 105 S.E.2d at 175-76. Drawing a similar
conclusion, the Court of Appeal in Hall first grafted a
constitutional analysis onto this statute:
The statute, like the constitutional former jeopardy
protection announced in Grady [v. Corbin, 495 U.S. 508
(1990)], was designed to prevent the prosecutorial
practices of subjecting an accused to the hazards of
vexatious, multiple prosecutions. Code § 19.2-294
prevents a prosecutor from subjecting an accused
through successive prosecutions to “embarrassment,
expense and ordeal and compelling him [or her] to live
in a continuing state of anxiety and insecurity.”
Grady, [495 U.S. at 518]. Additionally, the statute,
by limiting its reach to successive prosecutions for
multiple offenses for the same act, prevents
prosecutors from using the prosecution of a minor
offense as a “dress rehearsal” for a more serious,
later prosecution.
Hall, 14 Va. App. at 899, 421 S.E.2d at 460-61.
While this analysis would apply to questions of
constitutional former jeopardy, the express language of Code
§ 19.2-294 simply does not require a resort to such analysis.
Moreover, as a legislative response to Arrington, the statute
clearly addresses a broader array of circumstances than those
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subsumed within constitutional issues of former jeopardy.
Rather, the intent of Code § 19.2-294 is to avoid the hardship
manifest when a defendant is subject to convictions under two
statutes for a single act. Simply put, this statute in express
terms prohibits multiple convictions arising from a single act
without regard to whether those convictions occur in a single
trial or successive trials. In Phillips’ case, that meaning and
effect should be readily apparent. Phillips was convicted in
the general district court for conduct arising from two acts and
then was subject to proceedings before the grand jury and in the
circuit court for charges related to the same acts. Code
§ 19.2-294 bars the latter proceedings and consequently bars
Phillips’ convictions in the circuit court.
For these reasons, I would reverse the judgment of the
Court of Appeals and hold that Code § 19.2-294 bars convictions
for the same act in a single trial as well as consecutive
trials.
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