COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
SIDNEY KAVINCHI JOHNSON
OPINION BY
v. Record No. 0257-01-1 JUDGE RICHARD S. BRAY
APRIL 16, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Christian L. Connell for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Upon a plea of guilty, Sidney Kavinchi Johnson (defendant)
was convicted for operating a motor vehicle after having been
adjudicated an habitual offender, a second or subsequent offense,
in violation of Code § 46.2-357. On appeal, he contends the
conviction followed an earlier conviction for driving on a
suspended license arising from the "same act" and, therefore, was
barred by Code § 19.2-294. We disagree and affirm the trial
court.
I.
The pertinent facts are uncontroverted. On March 5, 2000,
Norfolk Police Officer R.N. Johnson observed a vehicle being
operated in the city without a valid state inspection decal.
Stopped by Johnson, the driver, defendant, produced an "ID card"
and "stated his license was suspended." Because police computers
"were down at the time," Johnson issued defendant a summons for
"driving on a suspended license," "based on [his] statement." On
May 1, 2000, defendant appeared before the Norfolk General
District Court (district court), entered a plea of guilty to the
offense, a misdemeanor, and was sentenced to a 90-day suspended
jail sentence, together with a fine and further suspension of his
operator's license.
Following trial and conviction in the district court, Johnson
learned defendant was adjudicated an habitual offender prior to
the traffic stop and, moreover, had been previously convicted of
operating a vehicle in violation of such order. Accordingly,
Johnson immediately secured a warrant charging defendant with the
instant offense, a felony, and defendant was subsequently indicted
in the trial court.
On July 25, 2000, defendant appeared for trial on the
indictment and entered a plea of guilty upon arraignment.
During the attendant colloquy, the court inquired of defendant
if he and his counsel had "talked about this charge and what the
Commonwealth must prove before [he] could be found guilty?"
Defendant responded, "Yes, we have," adding that "one thing
. . . caused a problem" for him. Asked by the court, "What's
that?," defendant disclosed the earlier prosecution and
conviction in the district court for driving on a suspended
license and explained he "thought the case was done with" until
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a "few days later the police officer come [sic] to [his] house
with another warrant for the . . . same arrest date with a
greater charge," a procedure defendant "thought . . . to be
unfair."
Defendant's comments prompted further inquiry by the court
and the following exchange among defendant, his counsel, the
Commonwealth, and the court:
[DEFENSE ATTORNEY]: . . . He essentially
has a double jeopardy problem that I thought
had been ironed out. I told him that if he
has a problem like that about a legal
technical point that maybe what he should do
is plead not guilty and then we could
address the Court on that because he says
that he's guilty of the driving and that he
wants to take responsibility for that.
[THE PROSECUTOR]: . . . [Defendant] is
confused. . . . [H]e was never tried for
this offense, your Honor.
* * * * * * *
THE DEFENDANT: I don't feel confused at
all, sir.
* * * * * * *
THE COURT: . . . [I]f there's any question
about it, I take it a presentence report is
going to be requested here? . . . Any
question you can get a copy of the
misdemeanor summons. If it turns out he was
in fact tried on it, then that's the end of
it.
[THE PROSECUTOR]: I'll stipulate on the
record if that's the case, the Commonwealth
will be joining in [a] defense motion as
we're not going to try somebody twice.
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Upon additional questioning of defendant, the court accepted
his guilty plea, finding the "plea . . . has been made freely,
intelligently with an understanding of the charge and consequences
. . . ." Without objection, the Commonwealth then summarized the
evidence, the court found defendant guilty of the offense and
ordered a pre-sentence report, scheduling sentencing for September
19, 2000. Before concluding the proceedings, however, the court
admonished defense counsel:
I suppose a motion for double jeopardy is a
defense motion, not a prosecution motion, so
I will leave it up to you to try to
determine whether he was tried on the
misdemeanor on this very offense and was
convicted of it. . . . You will have to
take the initiative on that one.
Accordingly, on August 30, 2000, defendant's counsel filed a
motion to dismiss the indictment, alleging "defendant was found
guilty in the [district court] of driving on a suspended driver's
license for the same factual circumstances and events for which he
is charged with driving as a[n] habitual offender" in the instant
prosecution. At a subsequent hearing on the motion, the
Commonwealth acknowledged that the previous misdemeanor conviction
and the subject prosecution arose from defendant's operation of
the vehicle on the same occasion. However, because each offense
required proof of "separate elements," the Commonwealth maintained
each was amenable to prosecution and conviction without offending
principles of double jeopardy. Defendant disagreed,
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characterizing the prosecutions as "double jeopardy, two
convictions for the same thing."
Withholding a ruling on defendant's motion, the court
requested counsel to "brief" the double jeopardy issue and, also,
to "[l]ook at Code § 19.2-294," and continued both the hearing on
defendant's motion and the pending sentencing to November 21,
2000. Briefs were submitted, and defendant argued at the
subsequent hearing that the felony prosecution constituted a
successive prosecution for the "same act," in violation of Code
§ 19.2-294. The court, however, overruled defendant's motion and
imposed a sentence of twelve months in jail, resulting in the
instant appeal, which is limited to the implications of Code
§ 19.2-294.
II.
As a threshold issue, the Commonwealth contends defendant
waived error in the trial court by pleading guilty.
"When an accused enters a voluntary and intelligent plea of
guilty to an offense, he waives all defenses except those
jurisdictional." Savino v. Commonwealth, 239 Va. 534, 538, 391
S.E.2d 276, 278 (1990). "'[N]othing is left [to be determined]
but the imposition of the prescribed punishment.'" Dowell v.
Commonwealth, 12 Va. App. 1145, 1148, 408 S.E.2d 263, 265 (1991)
(quoting Miracle v. Peyton, 211 Va. 123, 126, 176 S.E.2d 339, 340
(1970)). However, Code § 19.2-254 provides that an accused may,
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[w]ith the approval of the court and the
consent of the Commonwealth, . . . enter a
conditional plea of guilty in a felony case,
reserving the right, on appeal from the
judgment, to a review of the adverse
determination of any specified pretrial
motion. If the defendant prevails on
appeal, he shall be allowed to withdraw his
plea.
Relying upon the protection afforded by Code § 19.2-254, defendant
contends "the trial record manifestly establishes that the sole
promise upon which [the] guilty plea was conditioned was his
ability to contest the issue of successive prosecutions." We
agree.
Defendant himself first objected to the prosecution in
response to inquiries of the court during the guilty plea
colloquy. Following the attendant exchange among the court and
counsel, the court, anticipating subsequent production of the
prior "misdemeanor summons" by the Commonwealth, assured defendant
and his counsel, "[i]f it turns out [defendant] was in fact tried
on it [in the general district court], then that's the end of it."
In response, the prosecutor "stipulate[d] on the record if that's
the case, the Commonwealth will be joining in [a] defense motion
as we're not going to try somebody twice." Of significance, at
the conclusion of the proceedings, the court instructed defense
counsel to "take the initiative" and pursue the issue, thereafter
conducting two related hearings on defendant's related motion to
dismiss, all with the concurrence and participation of the
Commonwealth.
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Thus, the record clearly reflects defendant elected to assert
the bar of Code § 19.2-294 to preserve a challenge to the
prosecution, notwithstanding the guilty plea. The requisite
consent of both the court and Commonwealth is manifest in related
assurances to defendant and subsequent hearings and rulings.
III.
On appeal, defendant does not rely upon constitutional
principles of double jeopardy to bar the instant prosecution but,
instead, upon the preclusion of Code § 19.2-294. See Blockburger
v. United States, 284 U.S. 299, 304 (1932). 1 Code § 19.2-294
provides:
1
The Constitution assures that an accused is not "subject
for the same offense to be twice put in jeopardy of life or
limb." U.S. Const. amend. V. Among the attendant guarantees,
an accused may not be subjected to "'a second prosecution for
the same offense after conviction'" or suffer "'multiple
punishments for the same offense.'" Payne v. Commonwealth, 257
Va. 216, 227, 509 S.E.2d 293, 300 (1999) (citations omitted).
In resolving a defense of constitutional double jeopardy,
the "test to be applied to determine whether there are two
offenses or only one is whether each [statutory] provision
requires proof of an additional fact which the other does not."
Blockburger, 284 U.S. at 304. In undertaking a Blockburger
analysis, "the two offenses are to be examined in the abstract,
rather than with reference to the facts of the particular case
under review." Blythe v. Commonwealth, 222 Va. 722, 726, 284
S.E.2d 796, 798 (1981). Thus, "[i]t is the identity of the
offense, and not the act, which is referred to in the
constitutional guaranty against double jeopardy." Epps v.
Commonwealth, 216 Va. 150, 153-54, 216 S.E.2d 64, 67 (1975).
"Code § 19.2-294, while not precisely a defense of former
jeopardy, 'amounts to such a defense in purpose and desired
effect.' Consequently, even though the statutory bar differs in
some respects . . . it was intended to address similar and
related problems." Hall v. Commonwealth, 14 Va. App. 892, 899,
421 S.E.2d 455, 460 (1992) (en banc) (citations omitted).
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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. 2
The statute "speaks to 'acts' of the accused, not elements of
the offense." Wade v. Commonwealth, 9 Va. App. 359, 365, 388
S.E.2d 277, 280 (1990); see also Jones v. Commonwealth, 218 Va.
757, 760, 240 S.E.2d 658, 661 (1978) (stating Code § 19.2-294
focuses on "the identity of the act"). "If the 'same act' is a
violation of two or more statutes, conviction under one . . . is
'a bar to a prosecution or proceeding under the other.'" Lash v.
County of Henrico, 14 Va. App. 926, 930, 421 S.E.2d 851, 853
(1992) (en banc) (quoting Code § 19.2-294). Stated differently,
"if two offenses involve 'two separate and distinct acts,'
conviction of one does not bar a prosecution for the other." Id.
Thus, "a conviction of one statutory offense does not bar
conviction under another statutory offense if each offense could
have been proved without the necessity of proving the other."
Fitzgerald v. Commonwealth, 11 Va. App. 625, 628, 401 S.E.2d 208,
2
Code § 19.2-294 is inapplicable to simultaneous
prosecutions, and the Commonwealth concedes the conviction and
prosecution before the court were not "joined in a single
evidentiary hearing in the general district court," and,
therefore, "successive." See Phillips v. Commonwealth, 257 Va.
548, 553, 514 S.E.2d 340, 343 (1999); Hall, 14 Va. App. at 900,
421 S.E.2d at 461.
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210, aff'd on reh'g en banc, 13 Va. App. 281, 411 S.E.2d 228
(1991).
"The test of whether there are separate acts sustaining
several offenses 'is whether the same evidence is required to
sustain them.'" Treu v. Commonwealth, 12 Va. App. 996, 997, 406
S.E.2d 676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va. 23,
24, 181 S.E.2d 622, 623-24 (1971)). 3 In applying the "same
evidence" test, "the particular criminal transaction must be
examined to determine whether the acts are the same in terms of
time, situs, victim, and the nature of the act itself." Hall v.
Commonwealth, 14 Va. App. 892, 898, 421 S.E.2d 455, 459 (1992) (en
banc). "The defendant is required to do no more than to show that
the 'act' which served as the basis for the [one] conviction was
'the same act' which was used to convict [him] of [the other
charge]." Wade, 9 Va. App. at 363, 388 S.E.2d at 279.
Here, defendant implicitly acknowledges that driving on a
suspended license and driving after being adjudicated an habitual
offender constitute dissimilar offenses. However, he maintains
that because each violation arose from "only one act of driving[,]
. . . incapable of being broken into smaller parts," "the exact
same evidence supported both charges," thereby implicating the
3
In Estes, the Court expressly recognized that "one
occasion of driving an automobile may give rise to several acts
and offenses." Id. at 24, 181 S.E.2d at 624.
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statutory bar. Defendant's argument, however, is belied by the
record and contrary to well established jurisprudence.
In Hall, we instructed that determination of an "act" in the
context of Code § 19.2-294 required consideration of the "time,
situs, victim and the nature of the act." Hall, 14 Va. App. at
898, 421 S.E.2d at 459. Here, assuming time, situs and victim
coincided, the nature of the specific act peculiar to each
prosecution is distinct. In the first instance, defendant
admittedly was unlawfully operating a vehicle while his privileges
were in suspension. In contrast, the subject prosecution resulted
from such operation after he had been adjudicated an habitual
offender. While driving was conduct common and necessary to each
offense, the legal disability upon defendant that attended and was
integral to the respective acts was significantly different.
Thus, the "same evidence" would not produce a conviction for both
offenses. Accordingly, the disparate "nature" of the acts saves
the instant prosecution from the reach of Code § 19.2-294.
We, therefore, affirm the conviction.
Affirmed.
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