THE COURT OF APPEALS OF VIRGINIA
ARTHUR KELSEY JUSTICE.
found Charles Stanard Severance guilty of murdering three
residents of Alexandria, Virginia. Severance received a
separate punishment for each murder. He appealed to the Court
of Appeals, arguing that two of his three punishments
violated the Double Jeopardy Clause of the Fifth Amendment to
the Constitution of the United States. The Court of Appeals
disagreed. See Severance v. Commonwealth, 67 Va.App.
629, 799 S.E.2d 329 (2017). Severance now repeats that
argument before this Court. We likewise disagree and affirm.
December 2003, Severance murdered Nancy Dunning. In November
2013, he murdered Ronald Kirby. In February 2014, he murdered
Ruthanne Lodato. Severance committed various other crimes in
addition to these murders,  none of which are before us on
appeal. All of his targeted victims were, as Severance put
it, members of the "enforcement class" of society
and the murders were part of his so-called "tomahawking
[the] homestead" plan for retribution. R. at 6454. His
three victims included the wife of an Alexandria sheriff, a
regional transportation director, and a daughter of an
Alexandria Circuit Court judge.
jury issued a multi-count indictment against Severance. Two
counts are relevant to this appeal. The first charged
Severance with the capital murder of Kirby in 2013. The
second charged him with the capital murder of Lodato in 2014.
Both relied upon Code § 18.2-31(8), which deems
"[t]he willful, deliberate, and premeditated killing of
more than one person within a three-year period" to be
capital murder. A jury found Severance guilty of both
charges, concluding that he murdered Kirby within three years
of murdering Lodato and that he murdered Lodato within three
years of murdering Kirby.
to the sentencing phase of his trial, Severance argued that
punishing him for two capital murder convictions under Code
§ 18.2-31(8) "would violate double jeopardy."
J.A. at 16. After the trial court deferred ruling on the
issue, the jury recommended life sentences for both capital
murder convictions under Code §
18.2-31(8). Severance filed a motion to preclude
sentencing for both capital murder convictions
"[p]ursuant to the Double Jeopardy Clause of the Fifth
Amendment." J.A. at 46.
motion, like his earlier objection at trial, Severance did
not assert that the text of Code § 18.2-31(8) forbids
capital murder convictions for the separate murders of Kirby
and Lodato. Instead, invoking Blockburger v. United
States, 284 U.S. 299 (1932), Severance argued that
convicting him for both murders under Code § 18.2-31(8)
- which the statute did not prohibit - would be a
constitutional violation of the prohibition against multiple
punishments in the Double Jeopardy Clause only if he were
punished for both convictions.
later hearing on Severance's double jeopardy motion, the
trial court observed that the legislature
could have said that if a second murder is committed within
three years, that second murder becomes a capital murder. In
other words, they could have put in a temporal limitation
which meant that only the second murder could be capital
But by not putting in a temporal limitation, they elevated
both murders. They elevated both the first and the second
murder into capital murders. So it . . . represents a
legislative judgment that we would view that second murder as
such a[n] additional grave act in light of the first murder,
and an individual who committed that second murder . . . [is]
deemed to know that the legislature was going to treat that
first murder as a capital murder as a result.
I mean, there's no reason for this Court to conclude that
that doesn't represent a legislative judgment.
J.A. at 64-65. Severance's counsel responded,
"I couldn't agree more. That is exactly right . . .
." Id. at 65.
trial court rejected Severance's double jeopardy
argument, convicted him of two counts of capital murder, and
imposed two life sentences. In the Court of Appeals,
Severance challenged the sentencing imposed for his two
capital murder convictions solely on the ground that the
constitutional "prohibition against double jeopardy
precluded the trial court from sentencing [him] for
both capital murder counts." Petition for Appeal at 60,
Severance, 67 Va.App. 629, 799 S.E.2d 329 (Record
No. 0308-16-4) [hereinafter CAV Pet.] (emphasis added);
see also Appellant's Br. at 40,
Severance, 67 Va.App. 629, 799 S.E.2d 329 (Record
No. 0308-16-4) [hereinafter CAV Appellant's Br.].
his petition for appeal and opening brief before the Court of
Appeals, Severance conceded that "the Commonwealth in
this case was free to seek indictments for two counts [of]
capital murder under [Code §] 18.2-31(8) for the murders
of Ruthann[e] Lodato and Ronald Kirby in order 'to supply
the numerical ingredient' to charge capital murder of
more than one person within a three-year period." CAV
Pet. at 63 (citation omitted); see also CAV
Appellant's Br. at 42. In his reply brief in the Court of
Appeals, Severance again conceded that the Commonwealth could
"indict a defendant for multiple capital murders when
those murders occur within the same three-year period."
Reply Br. at 8, Severance, 67 Va.App. 629, 799
S.E.2d 329 (Record No. 0308-16-4) [hereinafter CAV Reply
Br.]. The Commonwealth, he added, may also "obtain
convictions for each indictment." Id.
the statute's authorization of separate indictments and
convictions for each murder, Severance argued that the
"imposition of capital sentences for both murders"
violated the multiple-punishments doctrine inherent in the
Double Jeopardy Clause. CAV Pet. at 63; see also CAV
Appellant's Br. at 42-43. The Court of Appeals disagreed
and held that no double jeopardy violation occurred because
Severance was not sentenced twice for the same crime.
Instead, Severance received one sentence for one murder and
another sentence for another murder - "separate murders
that were committed months apart at separate locations."
Severance, 67 Va.App. at 651, 799 S.E.2d at 339.
appeal to us, Severance again concedes that "the
Commonwealth in this case was free to seek indictments for
two counts of capital murder under [Code] § 18.2-31(8)
for the murders" of Kirby and Lodato "in order
'to supply the numerical ingredient' to charge
capital murder [for the murder] of more than one person
within a three-year period." Appellant's Br. at
10-11 (citation omitted). He does not argue - and has never
argued - that Code § 18.2-31(8) itself forbids either
charging or convicting a defendant for the capital murder of
two separate victims within the three-year
period. Instead, Severance claims only that
"imposing capital sentences for each
murder" violates his double jeopardy rights, and thus,
"the Commonwealth should have elected which of the
indictments it sought to proceed upon to seek a capital
sentence." Appellant's Br. at 11 (emphases
multiple-punishments argument fails for several reasons. The
most fundamental flaw is his reliance on
Blockburger. By framing his argument this way,
Severance asks the wrong question and, as a result, arrives
at the wrong answer. As the Court of Appeals recognized,
"the Blockburger test only applies when
'the same act or transaction constitutes a
violation of two distinct statutory provisions.'"
Severance, 67 Va.App. at 650-51, 799 S.E.2d at 339
(emphasis in original) (citation omitted). The Court of
Appeals is correct. "The assumption underlying the
[Blockburger test] is that [the legislature]
ordinarily does not intend to punish the same offense under
two different statutes." Whalen v. United
States, 445 U.S. 684, 691-92 (1980). It is only in this
one-offense/two-statutes context that the problematic
statutes "are construed not to authorize cumulative
punishments in the absence of a clear indication of contrary
legislative intent." Id. at 692.
case, Severance committed two separate acts of
murder, twice violating the same statutory
provision. In light of "the two capital murders in
th[is] case," the Court of Appeals correctly reasoned,
"it is unnecessary to apply the Blockburger
test." Severance, 67 Va.App. at 651, 799 S.E.2d
at 339. "The fact that each murder provided the
predicate offense for a conviction under Code §
18.2-31(8) does not limit appellant's liability for
conviction and sentencing on both charges." Id.
at 653, 799 S.E.2d at 340. There is "no temporal