COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Haley
Argued at Chesapeake, Virginia
PHILLIP JAMES OSTRANDER, S/K/A
PHILIP JAMES OSTRANDER
OPINION BY
v. Record No. 2194-06-1 JUDGE JEAN HARRISON CLEMENTS
MARCH 18, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Phillip James Ostrander (appellant) was convicted and sentenced for solicitation to commit
murder, in violation of Code § 18.2-29, and attempted capital murder for hire, in violation of Code
§§ 18.2-31(2) and 18.2-25. On appeal, appellant contends his prosecution for attempted murder
for hire was barred on double jeopardy grounds by his guilty plea to the solicitation to commit
murder offense. Alternatively, he contends the imposition of sentences for both offenses
violated the constitutional prohibition against multiple punishments for the same offense.
Finding no error, we affirm appellant’s convictions and sentences.
I. BACKGROUND
As a result of appellant’s efforts “on or about August 28, 2005” to have the purported
paramour of his estranged wife killed, appellant was indicted by a grand jury for attempted
capital murder and for solicitation to commit murder. At the beginning of the trial on those
charges, appellant pled guilty to the solicitation to commit murder charge. He then moved to
dismiss the attempted capital murder for hire charge, arguing the prosecution of that charge was
barred on double jeopardy grounds because solicitation to commit murder is a lesser-included
offense of attempted capital murder for hire. The trial judge accepted appellant’s guilty plea and
took appellant’s motion to dismiss under advisement. Immediately thereafter, appellant pled not
guilty to the attempted capital murder for hire charge and was tried by a jury on that charge.
At the close of the Commonwealth’s evidence, appellant renewed his double jeopardy
motion to dismiss the attempted capital murder for hire charge, asserting that no evidence was
presented “that would separate” the attempted capital murder for hire charge from the solicitation
to commit murder charge. “[I]n order to hire somebody to commit a capital murder,” defense
counsel argued, “you have to solicit them. It’s part and parcel in the hiring.”
In response, the prosecutor argued that the evidence established that appellant committed
two “distinct offenses”:
One, we have solicitation where the defendant asks [his
acquaintance in July 2005] to arrange for the killing of [appellant’s
wife’s purported paramour]. That would be enough for the court to
find him guilty of solicitation to commit murder, just for asking
another individual to do that. Then we have attempted capital
murder which requires the overt yet ineffectual act to commit the
crime of murder. [On August 28, 2005,] we have the defendant
showing the undercover hit man and [the acquaintance] around
town where the locations of the hit could occur. We also have the
defendant handing over cash to them. This is an overt act toward
the commission of the murder.
The trial judge replied that the Commonwealth’s position “may well be true” if the
Commonwealth had chronologically distinguished the two offenses in the indictments, “but the
indictments allege that both offenses occurred on August 28th.”
Acknowledging he understood the judge’s view, the prosecutor further argued that, even
when limited to the date alleged in the indictments, the evidence still established two distinct
crimes. Apparently rejecting the Commonwealth’s argument, the trial judge returned to
-2-
appellant’s double jeopardy argument, noting that, even if “solicitation to commit murder [were]
a lesser included offense of attempted capital murder, . . . the defendant may be barred from
being convicted of both, but he doesn’t get to pick which one he’s convicted of.” Wanting to
consider the matter further, however, the trial judge again took appellant’s motion to dismiss the
attempted capital murder for hire charge under advisement.
At the close of all the evidence, appellant again renewed his motion and the trial judge
continued to take it under advisement. The jury found appellant guilty of attempted capital
murder for hire and recommended a sentence of thirty years’ imprisonment.
At the sentencing hearing, the trial judge heard further argument on appellant’s double
jeopardy motion to dismiss the attempted capital murder for hire charge. Concluding that the
“simultaneous prosecution” of the two charges was not barred on double jeopardy grounds, the
trial judge denied the motion. Further concluding that, when “examined in the abstract rather
than with reference to the facts of the particular case that’s under review,” solicitation to commit
murder and attempted capital murder for hire were “separate offenses,” the judge also denied
appellant’s subsequent double jeopardy motion to vacate the solicitation to commit murder
charge and impose sentence solely on the attempted capital murder for hire charge. The judge
then convicted appellant, upon his guilty plea, of solicitation to commit murder; sentenced
appellant on that conviction to ten years’ imprisonment, with all years suspended upon certain
conditions; and imposed the thirty-year sentence fixed by the jury on the attempted capital
murder for hire conviction.
This appeal followed.
II. ANALYSIS
On appeal, appellant contends the trial judge erred in denying his double jeopardy motion to
dismiss the attempted capital murder for hire charge. Alternatively, he contends the trial judge erred
-3-
in denying his subsequent double jeopardy motion to vacate the solicitation to commit murder
charge and impose sentence solely on the attempted capital murder for hire charge. We disagree
with both contentions. 1
The Double Jeopardy Clauses of the United States and Virginia Constitutions protect
“against a second prosecution for the same offense after either an acquittal or a conviction of that
offense and against multiple punishments for the same offense.” Coleman v. Commonwealth,
261 Va. 196, 199, 539 S.E.2d 732, 733 (2001); see Stephens v. Commonwealth, 263 Va. 58, 62,
557 S.E.2d 227, 230 (2002) (“Virginia’s constitutional guarantee against double jeopardy affords
a defendant the same guarantees as the federal Double Jeopardy Clause.”). The prohibition
against successive prosecutions for the “same offense,” however, does not apply where the
defendant is tried in a single trial. See Ohio v. Johnson, 467 U.S. 493, 500 (1984) (“While the
Double Jeopardy Clause may protect a defendant against cumulative punishments for
convictions on the same offense, the Clause does not prohibit the State from prosecuting
respondent for such multiple offenses in a single prosecution.”); Clagett v. Commonwealth, 252
Va. 79, 95, 472 S.E.2d 263, 272 (1996) (“Generally, a defendant cannot be placed in jeopardy
more than once for a single criminal act. However, the state may, under one or multiple
indictments, charge a defendant using multiple theories concerning the same crime or greater and
lesser crimes arising out of the same act or transaction. In such cases, the prohibition against
‘multiple prosecution’ double jeopardy does not apply so long as the defendant is arraigned and
tried in a single proceeding.”). Indeed, “[i]n the single-trial context . . . , ‘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.’” West v. Dir. of the Dep’t
1
For purposes of this appeal, we assume, without deciding, that the evidence established
that appellant’s efforts “on or about August 28, 2005” to have the purported paramour of his
estranged wife killed constituted one continuous criminal act, as appellant claims.
-4-
of Corr., 273 Va. 56, 63, 639 S.E.2d 190, 195 (2007) (quoting Brown v. Ohio, 432 U.S. 161, 165
(1980)).
Nonetheless, appellant argues his guilty plea to the solicitation to commit murder charge
barred any further prosecution on the attempted capital murder for hire charge. Inherent in
appellant’s argument is the claim that the trial judge’s acceptance of appellant’s guilty plea on
the solicitation charge and appellant’s further prosecution on the attempted capital murder charge
constituted two separate prosecutions and were thus subject to the constitutional prohibition
against successive prosecutions for the “same offense.” Such an assertion, however, runs
directly counter to the settled principle that a defendant’s election to plead guilty at trial to one
charge and not guilty to another charge arising from the same criminal act “neither ‘transform[s]
the single prosecution into two separate prosecutions nor capture[s] for [the defendant] any
special protections against successive prosecutions under the [D]ouble [J]eopardy [C]lause.’”
Rea v. Commonwealth, 14 Va. App. 940, 944, 421 S.E.2d 464, 467 (1992) (quoting Walker v.
Commonwealth, 14 Va. App. 203, 205-06, 415 S.E.2d 446, 447 (1992)); see also Stevens v.
Commonwealth, 14 Va. App. 238, 242-43, 415 S.E.2d 881, 884 (1992) (holding that the
defendant’s prosecution for conspiracy to commit murder and the trial court’s previous
acceptance of the defendant’s guilty pleas to other charges arising from the same criminal act did
not constitute “successive prosecutions”).
In Rea, the appellant in that case was charged with three counts of capital murder and
three counts of first-degree murder, all arising from the same incident. 14 Va. App. at 942-43,
421 S.E.2d at 466. After pleading guilty to the first-degree murder charges, the appellant was
convicted by a jury on the capital murder charges. Id. at 943, 421 S.E.2d at 466. On appeal, the
appellant argued his pleading guilty to the first-degree murder charges “forestalled prosecution
-5-
of the capital murder charges under principles of constitutional double jeopardy.” Id. at 944, 421
S.E.2d at 467. This Court rejected appellant’s argument, noting as follows:
[I]n Ohio v. Johnson, 467 U.S. 493 (1984), the United
States Supreme Court expressly held that prosecution of a greater
offense is not constitutionally prohibited following a guilty plea to
a lesser included offense during a single trial. Id. at 494. The
Court noted that the defendant “offered only to resolve a part of the
charges against him” and, “notwithstanding the trial court’s
acceptance of [his] guilty pleas,” he was not “entitled to use the
Double Jeopardy Clause as a sword to prevent the State from
completing its prosecution on the remaining charges.” Id. at
501-02.
The Court rejected the notion that “trial proceedings, like
amoebae, are capable of being infinitely subdivided, so that a
determination of guilt . . . on one count . . . immediately raises a
double jeopardy bar to continued prosecution on any remaining
counts.” Id. at 501. Such circumstances do not “constitute the
type of ‘multiple prosecution’ prohibited by the Double Jeopardy
Clause.” Id. at 494. Thus, the defendant’s tendered guilty pleas to
first-degree murder did not bar the Commonwealth from pursuing
the capital murder charges.
Id. at 944-45, 421 S.E.2d at 467-68 (alteration in original).
In this case, as in Rea, both charges against appellant were issued on the same day by the
same grand jury, and appellant was arraigned on both charges at the same proceeding. It is clear,
therefore, that the trial judge’s acceptance of appellant’s guilty plea on the solicitation charge
and appellant’s prosecution on the attempted capital murder charge were both part of the same
trial on the two charges and thus constituted a single, simultaneous prosecution for double
jeopardy purposes, rather than separate, successive prosecutions. Thus, the double jeopardy
protection against successive prosecutions was not implicated.
Accordingly, as the trial judge correctly concluded, the simultaneous prosecution of the
two charges was not barred on double jeopardy grounds. We hold, therefore, that the trial judge
did not err in denying appellant’s motion to dismiss and permitting the Commonwealth to
prosecute appellant on the attempted capital murder for hire charge.
-6-
The question remains, however, whether, in being sentenced for both crimes, appellant was
improperly subjected to multiple punishments for the “same offense.” Appellant asserts his double
jeopardy right to be free from such punishments was violated because solicitation to commit murder
is a lesser-included offense of, and thus the “same offense” for double jeopardy purposes, as
attempted capital murder for hire. Consequently, appellant argues, his conviction for solicitation to
commit murder should have been vacated. We disagree.
As alluded to earlier, although the double jeopardy protections permit a defendant to be
simultaneously prosecuted for multiple crimes constituting the “same offense,” the defendant may
not be cumulatively punished for those crimes. Johnson, 467 U.S. at 500; West, 273 Va. at 63, 639
S.E.2d at 195; see also Clagett, 252 Va. at 95, 472 S.E.2d at 272 (holding that, when prosecuted
in a single trial for multiple crimes, “the accused cannot be subjected to more than one conviction
and punishment for each discrete criminal act”); Schwartz v. Commonwealth, 45 Va. App. 407,
440, 611 S.E.2d 631, 647 (2005) (“[S]ubjecting a defendant to cumulative punishments for the
‘same offense’ violates both state and federal protections against double jeopardy.”). Thus,
where a defendant is convicted in a single trial of two crimes constituting the “same offense,” the
“proper remedy is to vacate both the conviction and sentence of the lesser . . . offense while
leaving in place the conviction and sentence on the greater offense.” Buchanan v.
Commonwealth, 238 Va. 389, 415, 384 S.E.2d 757, 772 (1989).
Accordingly, we must determine whether the offense of solicitation to commit murder,
under Code § 18.2-29, is the “same offense” for double jeopardy purposes as attempted capital
murder for hire, under Code § 18.2-31(2). A “greater offense” is “by definition the ‘same’ for
purposes of double jeopardy as any lesser offense included in it.” Brown, 432 U.S. at 168. Thus,
where a defendant is simultaneously prosecuted for two offenses arising from the same criminal act,
the test for determining if the two offenses are the “same offense” for double jeopardy purposes is
-7-
“‘whether each [offense] requires proof of a fact which the other does not.’” West, 273 Va. at 63,
639 S.E.2d at 195 (alteration in original) (quoting Blockburger v. United States, 284 U.S. 299, 304
(1932)); see Brown, 432 U.S. at 166 (“The established test for determining whether two offenses
are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in
Blockburger . . . .”). “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.” West, 273 Va. at 63,
639 S.E.2d at 195.
Code § 18.2-29 provides, in pertinent part, that “[a]ny person who commands, entreats, or
otherwise attempts to persuade another person to commit a murder is guilty of a felony punishable
by confinement in a state correctional facility for a term not less than five years or more than forty
years.” Code § 18.2-31(2) provides that “[t]he willful, deliberate, and premeditated killing of any
person by another for hire” constitutes capital murder. Additionally, the crime of attempted capital
murder for hire requires proof that the accused performed a direct act toward the commission of the
contemplated murder. Ashford v. Commonwealth, 47 Va. App. 676, 681, 626 S.E.2d 464, 466
(2006).
Appellant concedes that the offense of attempted capital murder for hire requires proof of a
fact that the offense of solicitation to commit murder does not—namely, that the accused performed
a direct act toward the commission of the contemplated murder. See Wiseman v. Commonwealth,
143 Va. 631, 637-38, 130 S.E. 249, 251 (1925) (“Solicitation, or inciting to crime, does not proceed
to the point of some overt act in the commission of crime. When it proceeds to this point it becomes
an attempt to commit crime and is indictable as such.”); Ford v. Commonwealth, 10 Va. App. 224,
226, 391 S.E.2d 603, 604 (1990) (“[T]he act of solicitation may be completed before any attempt is
made to commit the solicited crime.”). He argues, however, that a solicitation to commit murder
conviction does not require proof of any fact that an attempted capital murder for hire conviction
-8-
does not. “One cannot commit attempted capital murder for hire,” he asserts, “without first
soliciting someone to commit the murder.” The gist of the crime, he further argues, “is that the
defendant solicited another individual to commit the murder.” Thus, appellant concludes,
solicitation to commit murder is a lesser-included offense of attempted capital murder for hire.
Appellant’s argument, however, ignores the plain language of Code § 18.2-31(2), which
allows an accused to be convicted of capital murder for hire if he either hires someone to do the
killing, see Fisher v. Commonwealth, 236 Va. 403, 406-08, 374 S.E.2d 46, 47-49 (1988), or does
the killing himself after having been hired by someone else to do it, see Stockton v.
Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 384-85 (1984). Plainly, an accused who
does or attempts to do the killing himself after being hired by another to do so could not be
convicted of solicitation to commit murder. He would be the “solicitee,” rather than the “solicitor.”
Thus, proof that the accused solicited someone else to commit the murder would not be required in
such cases.
It is clear, therefore, that, when considered in the abstract without reference to the particular
facts of the instant case, a solicitation to commit murder conviction requires proof of a fact that an
attempted capital murder for hire conviction does not—namely, that the accused solicited another
person to commit a murder. Cf. Coleman, 261 Va. at 200, 539 S.E.2d at 734 (looking, when
applying the Blockburger test, at the charged offenses in the abstract and considering, in doing so,
the other offenses contemplated by the same statutory provisions). Consequently, solicitation to
commit murder is not a lesser-included offense of attempted capital murder for hire and the two
offenses are not the “same offense” for purposes of double jeopardy.
Hence, appellant was not subjected to multiple punishments for the “same offense.”
Accordingly, we hold the trial judge did not err in denying appellant’s double jeopardy motion to
-9-
vacate the solicitation to commit murder charge and impose sentence solely on the attempted
capital murder for hire charge.
III. CONCLUSION
For these reasons, we affirm appellant’s convictions and sentences.
Affirmed.
- 10 -
Humphreys, J., concurring.
Because I would reach the same result as the majority, but for different reasons, I write
separately.
As the majority states, the Double Jeopardy Clauses of the United States and Virginia
Constitutions protect “against a second prosecution for the same offense after either an acquittal or a
conviction of that offense and against multiple punishments for the same offense.” Coleman v.
Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001). For double jeopardy purposes, one
offense is the same as another if it involves “the identical act and crime both in law and fact[.]”
Henson v. Commonwealth, 165 Va. 829, 832, 183 S.E. 438, 439 (1936) (citation omitted).
However, “if the same act or transaction was not involved in the two offenses, [the Double Jeopardy
Clause] does not bar the subsequent prosecution.” Peake v. Commonwealth, 46 Va. App. 35, 40,
614 S.E.2d 672, 676 (2005). A defendant bears the burden of establishing the identity of the
offenses material to his double jeopardy plea. Cooper v. Commonwealth, 13 Va. App. 642, 644,
414 S.E.2d 435, 436 (1992).
Separate crimes that happen to occur on or about the same day do not necessarily offend the
Double Jeopardy Clause. As the majority notes, the issue is whether or not a course of criminal
conduct, in the abstract, constitutes a single criminal offense or multiple criminal offenses.
Ostrander argues, and the majority assumes for the purposes of its analysis, that because the
indictments allege that both the criminal solicitation and the attempted capital murder occurred on
the same date, they must necessarily have occurred simultaneously. Yet it is Ostrander’s burden as
the appellant to provide us with a record that supports his factual assertion that such was the case.
Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991)
(“The burden is upon the appellant to provide us with a record which substantiates the claim of
error.”). See also Cooper, 13 Va. App. at 644, 414 S.E.2d at 436 (“Customarily, a defendant carries
- 11 -
[his] burden [of establishing the identity of the offenses material to his double jeopardy plea] by
‘production of the record or transcript of the initial trial.’” (quoting Low v. Commonwealth, 11
Va. App. 48, 50, 396 S.E.2d 383, 384 (1990))).
On the record before us, neither the Commonwealth’s proffer of evidence in support of
Ostrander’s guilty plea to criminal solicitation, nor the evidence presented to the jury in support of
the offense of attempted capital murder suggest that this was necessarily the case. Indeed, had
Ostrander not entered his guilty plea to one of the charges, the record contains evidence from which
the jury could have found Ostrander guilty of both attempted capital murder for hire and solicitation
to commit capital murder based on conduct that occurred on two or more separate occasions.
Because the evidence supports convictions based on multiple discrete incidents that occurred “on or
about” the date alleged in the indictments, in my view the two convictions are not for the “same
offense,” and I would affirm the convictions without the need to conduct a double jeopardy analysis.
Viewed in the light most favorable to the Commonwealth, Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), the evidence proved that in July 2005, Ostrander
contacted Patrick Fleming (“Fleming”), an acquaintance of his, and told him he “had some work for
[him].” Ostrander asked Fleming to travel from his home in Ohio to Virginia to meet with him.
When Fleming met with Ostrander, Ostrander described his ex-wife’s boyfriend as a “piece of
fucking shit” who “deserve[d] to die.” Ostrander wanted Fleming to kill his ex-wife’s boyfriend,
and “beat up” his ex-wife’s attorney. Ostrander showed Fleming the boyfriend’s business and
residence, and started “breaking down a plan” for Fleming to kill the boyfriend. Fleming “was kind
of taken back by the whole thing,” and said he never intended to carry out the murder plan but acted
as though he would because he was “at [Ostrander’s] mercy for . . . transportation to get back [to
Ohio].” He led Ostrander to believe he “had to recruit somebody” to do the job. Ostrander gave
Fleming a small amount of money for travel expenses, and Fleming drove home to Ohio.
- 12 -
After returning to Ohio, Fleming accepted an additional $1,000 from Ostrander for
transportation costs, and then stopped answering Ostrander’s telephone calls. At this point, Fleming
was “just hoping [the matter] would go away.”
By mid-August of 2005, however, Ostrander started calling Fleming with more frequency.
As a result, Fleming contacted Theodore Kroczak (“Kroczak”), a police detective in Ohio whom he
knew, and informed him of Ostrander’s proposal. The detective, in turn, contacted a Bureau of
Alcohol, Tobacco, and Firearms (“ATF”) agent and a police detective in Chesapeake, and informed
them of the plot. The group developed a plan in which Fleming would arrange a meeting with
Ostrander, and Kroczak would pose as a “hit man,” using the alias “Dominic Kavelli.”
In furtherance of this plan, Fleming telephoned Ostrander on August 16, August 19, and
August 23, 2005, and recorded the conversations. When the two spoke on August 16, they spoke of
“pictures of [Ostrander’] kids.” Fleming said this was a phrase the two of them had coined to refer
to the intended killing. During the August 19 conversation, the two discussed repossession of a
vehicle. Fleming testified that the “repo job” was another coded reference to the intended killing.
Ostrander also told Fleming that the victim would have “some good stuff for [Fleming’s] pocket,”
meaning that the victim would likely be carrying cash and other valuables for Fleming to take.
During the August 23 conversation, the two discussed “setting up a business,” which again was
code for the intended killing. Ostrander assured Fleming he had “no iota of a doubt” about the plan.
Fleming told Ostrander he would bring his friend, “Dominic,” a.k.a. Kroczak, to Virginia as well.
Fleming and the two law enforcement officers traveled to Virginia on August 28, 2005,
rented a car, and put Ohio license plates on it, so it would appear they had driven to Virginia.
Fleming and Kroczak met Ostrander in a bar, and Ostrander drove them around to Ostrander’s
ex-wife’s boyfriend’s home and business in order to plan “the hit.” Ostrander gave descriptions of
the intended victim’s vehicles and license plate numbers.
- 13 -
The plan involved Kroczak shooting the victim as he exited his car in the parking lot of his
business, and Kroczak scaling a fence, to meet Fleming in a nearby getaway car. Ostrander planned
to be with his girlfriend at the time of the shooting, to establish an alibi. The three men agreed on a
price of $5,000 for the killing. Ostrander stopped at an automatic teller machine, withdrew $300,
and gave it to Fleming. Ostrander stated that he would “make arrangements” to give Fleming the
rest of the money “within a few weeks.”
The next day, Fleming called Ostrander to inform him that they had been unable to carry out
the plan, because the parking lot in which the shooting was to take place was too crowded. The
three men met at a restaurant in Virginia Beach, and Fleming and Kroczak asked Ostrander where
else the intended victim might be located. Ostrander gave Fleming an additional $100 towards the
fee. Local police arrested Ostrander later that day.
As the majority notes, in ruling on Ostrander’s double jeopardy motion, the trial court
responded to the prosecutor’s argument that the evidence demonstrated that Ostrander committed
two distinct offenses, by asserting, “that might well be true but the indictments allege that both
offenses occurred on August 28th.” However, although the indictment alleges that Ostrander
committed these offenses on August 28, 2005, for the purposes of a “same offense” double jeopardy
analysis, neither the trial court nor we are limited to the date alleged on the indictment any more
than the fact finder was in determining if the facts alleged in the indictment were proved. See Code
§ 19.2-226(6) (stating that an indictment shall not be deemed invalid “[f]or omitting to state, or
stating imperfectly, the time at which the offense was committed when time is not the essence of the
offense”). Indeed, in cases “where the date of the offense is ‘not of the essence of the offense,’ nor
‘shown to be significant,’ the Commonwealth is not required to charge that it occurred on a specific
date.” Raja v. Commonwealth, 40 Va. App. 710, 721, 581 S.E.2d 237, 242 (2003) (quoting
Marlowe v. Commonwealth, 2 Va. App. 619, 622, 347 S.E.2d 167, 169 (1986)). In such cases, “the
- 14 -
Commonwealth may even prove that the offense occurred on a date ‘other than that alleged in the
charging instrument.’” Id. (quoting Stapleton v. Commonwealth, 140 Va. 475, 488, 124 S.E. 237,
242 (1924)).
Code § 18.2-29 states, in pertinent part, that “[a]ny person who commands, entreats, or
otherwise attempts to persuade another person to commit a murder is guilty of a felony punishable
by confinement in a state correctional facility for a term not less than five years or more than forty
years.” We have stated that “‘invit[ing] or solicit[ing] one to commit crime, where no attempt is
actually made to commit it, . . . is indictable at common law as solicitation. Solicitation, or inciting
to crime, does not proceed to the point of some overt act in the commission of crime.’” Ford v.
Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990) (quoting Wiseman v.
Commonwealth, 143 Va. 631, 637-38, 130 S.E. 249, 251 (1925)). “Indeed, the act of solicitation
may be completed before any attempt is made to commit the solicited crime[.]” Id. “[I]t is
‘immaterial whether the . . . crime solicited is in fact committed since the gist of this offense is
incitement.’” Id. (quoting Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840
(1981)). Indeed, “[t]he conduct constituting the act of solicitation must . . . be done with the intent
‘to induce another to act.’” Id. (quoting Pedersen v. City of Richmond, 219 Va. 1061, 1067, 254
S.E.2d 95, 99 (1979)).
In this case, Ostrander spoke with Fleming on the telephone several times during July 2005,
and again on August 16, 19, and 23, 2005. During the July conversations, Ostrander repeatedly
asked Fleming to kill someone. In the conversations on the three dates in August, Ostrander used
coded phrases to refer to the intended killing. Ostrander told Fleming that there would be “some
good stuff for [Fleming’s] pocket,” on the intended victim’s body if Fleming proceeded with the
killing. He also told Fleming that he had “no iota of a doubt” about the killing proceeding as
planned. The Commonwealth proffered evidence to this effect when Ostrander entered his guilty
- 15 -
plea for solicitation to commit capital murder. From this evidence, the fact finder could have found
that Ostrander spoke to Fleming with the intent to “induce [Fleming] to act.” Therefore, the
evidence is sufficient to prove that Ostrander solicited Fleming to commit murder on August 16, 19,
and 23, 2005.
Code §§ 18.2-25 and 18.2-31(2) forbid the attempt to hire a person to commit the “willful,
deliberate, and premeditated killing of [another] person[.]” “An attempt to commit a crime is
composed of two elements: (1) the intent to commit it; and (2) a direct, ineffectual act done toward
its commission. The act must reach far enough towards the accomplishment of the desired result to
amount to the commencement of the consummation.” Barrett v. Commonwealth, 210 Va. 153, 156,
169 S.E.2d 449, 451 (1969).
On August 28, 2005, Ostrander drove Fleming and Kroczak to the intended murder victim’s
business, formulated a plan with the two men in which Kroczak would shoot the would-be victim in
the parking lot of his business, and gave Fleming a partial payment for the killing. As far as
Ostrander was concerned, he needed do nothing else for Fleming and Kroczak to commit the
murder the next day. This evidence supports Ostrander’s conviction for attempted capital murder
for hire on August 28, 2005.
Thus, the record supports the finding that Ostrander made solicitations to commit murder on
August 16, 19, and 23, 2005, and an attempted capital murder for hire on August 28, 2005.
Ostrander’s indictment alleged that both of the offenses occurred only on August 28, 2005.
Therefore, the trial court only considered Ostrander’s conduct on this day, and affirmed Ostrander’s
conviction, holding that solicitation to commit capital murder is not a lesser-included offense of
attempted capital murder for hire and, thus, not the “same offense” for double jeopardy purposes.
However, because the evidence shows that Ostrander committed these crimes on two separate and
- 16 -
distinct occasions, I would affirm Ostrander’s convictions without conducting a double jeopardy
analysis. See Peake, 46 Va. App. at 40, 614 S.E.2d at 675.
Accordingly, although I find no fault with the detailed double jeopardy analysis of the
majority, in my view it is unnecessary to the resolution of the issue before us and therefore I
respectfully concur only in the judgment.
- 17 -
Ostrander v. Commonwealth
Court: Court of Appeals of Virginia
Date filed: 2008-03-18
Citations: 658 S.E.2d 346, 51 Va. App. 386
Copy CitationsCombined Opinion