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Groffel v. Commonwealth

Court of Appeals of Virginia

August 20, 2019

HOWARD ALLEN GROFFEL
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF NEW KENT COUNTY B. Elliott Bondurant, Judge.

          Ivan 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.

          OPINION

          MARLA GRAFF DECKER, CHIEF JUDGE.

         Howard 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.

         I. BACKGROUND [1]

         On 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.

         At the 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.

         While 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.

         The 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.[2] 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.

         Following 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.[3] The court sentenced him to a total of fifteen years in prison, with six years suspended, for these offenses.

         II. ANALYSIS

         The appellant contends that he received multiple convictions and punishments for the same offense in violation of the constitutional protection against double jeopardy.

         "The 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)).

         "When 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 ...


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