THE CIRCUIT COURT OF NEW KENT COUNTY B. Elliott Bondurant,
D. Fehrenbach (D.R. Dansby, Ltd, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judge Beales and Retired Judge
Bumgardner [*] Argued at Richmond, Virginia.
GRAFF DECKER, CHIEF JUDGE.
Allen Groffel appeals four of his five convictions and
sentences for transporting a firearm while subject to a
protective order in violation of Code § 18.2-308.1:4(A)
and his conviction for possessing ammunition after conviction
of a felony in violation Code § 18.2-308.2. He argues
that the punishments for these convictions violate the
constitutional prohibition against double jeopardy. For the
reasons that follow, we affirm the convictions and sentences
for transporting a firearm while subject to a protective
order. However, we reverse and remand the case for
reconsideration of the convictions and sentences for
possession of a firearm and possession of ammunition in a
manner consistent with this opinion.
April 25, 2017, the appellant was convicted in general
district court and sentenced to jail. He escaped custody by
walking away while unattended. When law enforcement captured
him that night, he had a revolver strapped to his ankle.
time of the escape and apprehension, the appellant was
subject to five separate protective orders. Of these five
protective orders, three were obtained by adults, each of
whom petitioned on his or her own behalf. The other two
orders were entered by the juvenile and domestic relations
district court to protect the appellant's two children.
in jail, the appellant called a neighbor and asked him to
move and sell property that the appellant kept in his shed.
In the shed was a cabinet, in which the neighbor found an
AK-47 assault rifle, a "12-gauge Winchester pump
shotgun," ammunition for the two firearms, and
ammunition for a "30-30" rifle. Captain John
McLaughlin with the New Kent County Sheriff's Office, who
had monitored the phone call between the appellant and his
neighbor, went to the neighbor's house and collected the
firearms and ammunition as evidence.
Commonwealth charged the appellant, in pertinent part, with
five counts of transporting a firearm while subject to a
protective order and two counts of possessing a firearm or
ammunition after previously being convicted of a felony. The
appellant filed a motion to dismiss in which he argued that
his constitutional protection against double jeopardy was
violated by the five charges of transporting a firearm while
subject to a protective order and additionally by the two
charges of possession of a firearm or ammunition by a
convicted felon. The trial court denied the
motion. In doing so, the judge commented that the
five protective orders were issued by different courts to
protect different individuals. Regarding the possession
charges, the trial court noted that the separate charge for
possession of ammunition was based on ammunition that did not
match the types of firearms found with it.
the presentation of the evidence, the trial court found the
appellant guilty of five counts of transporting a firearm
while subject to a protective order and two counts of
possessing a firearm or ammunition after conviction for a
felony. The court sentenced him to a total of
fifteen years in prison, with six years suspended, for these
appellant contends that he received multiple convictions and
punishments for the same offense in violation of the
constitutional protection against double jeopardy.
Fifth Amendment to the Constitution of the United States
declares that no person shall 'be subject for the same
offence to be twice put in jeopardy of life or
limb.'" Severance v. Commonwealth, 295 Va.
564, 571-72, 572 n.8 (2018) (quoting U.S. Const. amend. V)
(noting that the Virginia Constitution provides the same
protections). This prohibition includes protection from
"multiple punishments for the same offense."
Id. at 572 (quoting Commonwealth v. Gregg,
295 Va. 293, 298 (2018)). "We review de novo whether
'multiple punishments have been imposed for the same
offense in violation of the double jeopardy
clause.'" Gregg, 295 Va. at 296 (quoting
Johnson v. Commonwealth, 292 Va. 738, 741 (2016)).
considering multiple punishments for a single transaction,
the controlling factor is legislative intent."
Id. at 298 (quoting Kelsoe v. Commonwealth,
226 Va. 197, 199 (1983)). In determining legislative intent,
the court first looks to the plain language of the statute.
Baker v. Commonwealth, 284 Va. 572, 576 (2012).
"If the language is clear and unambiguous, [an appellate
court] will assign the statute its plain meaning."
Browning-Ferris Indus. of S. Atl. v. Residents Involved
in Saving the Env't, Inc., 254 Va. 278, 284 (1997).
Additionally, we must "give effect to the
legislature's intention as expressed by the language used
unless a literal interpretation of the language would result
in a manifest absurdity." Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104 (2007). On the
other hand, if the statutory language is ambiguous, the court
must rely on "the gravamen of the offense to determine
the legislature's intent" regarding the permissible
unit of prosecution. See Baker, 284 Va. at 576;
see also Johnson, 292 Va. at 741-42 (examining