Mary Jane Hall, Judge
ORDER GRANTING MOTION TO DISMISS
This matter came before the Court on Defendant's motion to dismiss two of the three counts of possession of a firearm/ammunition by a convicted felon on double jeopardy grounds. Defendant was charged with possession of a firearm by a convicted felon, possession of a concealed weapon by a convicted felon, and possession of ammunition by a convicted felon, all violations of Va. Code § 18.2-308.2.
Following a bench trial on September 7, 2016, the Court found Defendant guilty as charged. In support of his motion to dismiss two of the three charges, Defendant argues that the three charged offenses actually constitute but a single offense; therefore, the second and third firearm counts must be vacated due to double jeopardy. For the reasons stated herein, the motion is granted.
Factual Background
As part of a stop on February 25, 2015 that the Court has previously ruled to be consensual, Norfolk police officers patted down Defendant and recovered a handgun from his waistband and a zip lock bag containing 9mm ammunition. The officers arrested him, and the grand jury ultimately charged him with the three felony offenses referenced above. Defendant's original motion sought dismissal of two of the three indictments, but the parties proceeded to trial on all three because the double jeopardy clause prohibits multiple punishments in a single prosecution, not a trial on multiplicative counts. Ohio v. Johnson, 467 U.S. 493, 499-500 (1984). Now that the Court has tried but not yet sentenced Defendant, the motion is ripe for adjudication.
Legal Analysis
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Where consecutive sentences are imposed at a single criminal trial, 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. Brown v. Ohio, 432 U.S. 161, 165 (1977).
To determine whether multiple offenses are sufficiently distinct to justify imposing cumulative punishments, courts normally use the test set forth in Blockburger v. United States, 284 U.S. 299 (1932): "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304.
All three convictions at issue fall under the same statutory provision and relate to a single occurrence. The Blockburger test is specifically designed to look at whether the "same act or transaction constitutes a violation of two distinct statutory provisions." Id. (emphasis added). Here, there is only a single statutory provision. As a result, Blockburger does not apply. See, e.g., United States v. Evans, 854 F.2d 56, 59 (5th Cir. 1988) (citing Sanabria v. United States, 437 U.S. 54 (1978)). Instead, the Court must look to the plain meaning of the statute to determine whether the legislature intended to permit a single transaction to turn into multiple offenses. Branch v. Commonwealth, 14 Va. App. 836, 839 (1992).
The statute at issue in this case, Va. Code § 18.2-308.2, reads as follows:
It shall be unlawful for (i) any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm or ammunition for a firearm . . . or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of
§ 18.2-308 . . . . Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in
§ 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years.
A.
Possession of a Firearm and Possession of Ammunition
The Commonwealth's first argument is that the statute contemplates separate punishments for possession of a firearm and possession of ammunition. The Commonwealth asserts that the word "or" between "firearm" and "ammunition" clearly indicates that the legislature intended for possession of a firearm to be a separate offense from the possession of ammunition for that same firearm. See Commonwealth's Resp. to Mot. to Dismiss at 3. If this were the correct reading of the statute, then in nearly every case where a convicted felon possessed a firearm—excluding only cases where the gun was unloaded and no extra ammunition was carried—the individual would then be guilty of both possession of a firearm and possession of ammunition. The Commonwealth has cited no cases that give this interpretation to the statute.
Another result of the Commonwealth's interpretation of the statute is that an individual could be charged with both possession of a firearm and transporting that same firearm as separate offenses. The words "possess" and "transport" in the statute are also separated by the word "or". Reading the word "or" to signal separate offenses could result in four potential convictions for a single loaded gun: possession of the gun, transportation of the gun, possession of the ammunition in the gun, and transportation of ammunition in the gun. The Court must determine whether the legislature intended so many offenses to result from a single transaction.
"When considering multiple punishments for a single transaction, the controlling factor is legislative intent." Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983). The legislature "may determine the appropriate 'unit of prosecution' and set the penalty for separate violations." Jordan v. Commonwealth, 2 Va. App. 590, 594 (1986). Therefore, although multiple offenses may be the "same," an accused may be subjected to legislatively "authorized cumulative punishments." Id. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause. Id.; see also Shears v. Commonwealth, 23 Va. App. 394, 401 (1996).
In considering what the "unit of prosecution" should be with respect to a violation of Va. Code § 18.2-308.2, the Court is persuaded by the decision of the Court of Appeals in Acey v. Commonwealth, 29 Va. App. 240, 251 (1999) holding that possession of more than one firearm by a convicted felon is a single offense: "If the possession of a firearm by a felon is, of itself, the dangerous act, the number of weapons with which a felon is armed becomes irrelevant. Whether the felon bears one or one hundred firearms, the felon is dangerously armed." Id. at 250.
The Court concludes that this reasoning applies with equal force to a felon's possession of a firearm and ammunition. Mindful that penal statutes "must be strictly construed against the Commonwealth and applied only in those cases clearly falling within the language of the statute," Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992), the Court concludes that Defendant's simultaneous possession of a firearm and ammunition constituted a single offense under the code section. B. Possession of a Concealed Weapon and Possession by a Violent Felon
The Commonwealth next argues that possession of a firearm by a convicted violent felon is a separate offense from concealed possession of a firearm by a convicted felon because each indictment requires different proof. Specifically, the Commonwealth contends that "possession of a firearm by a convicted violent felon, requires proof that the weapon Mr. Deal possessed was in fact a firearm . . . . possession of a concealed weapon by a convicted felon, requires proof that any weapon (not limited to firearms) Mr. Deal possessed was hid from common observation." Commonwealth's Resp. to Mot. to Dismiss at 4-5.
Deal was previously convicted of robbery, which is a violent felony as defined by Va. Code § 17.1-805(C). --------
The Court has already noted, however, that the Blockburger test does not apply. Defendant argues that the first half of the statute, regarding concealment of a weapon by a felon, merely sets forth a lesser included offense of the second half of the statute involving violent felons.
The first half of § 18.2-308.2 establishes that a felon who possesses a firearm or ammunition or conceals a weapon commits a Class 6 felony. In the next sentence, the statute provides:
However, any person who violates
this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as fined in
§ 17.1-805 shall be sentenced to a
mandatory minimum term of imprisonment of five years.
Va.
Code § 18.2-308.2 (emphasis added). The plain purpose of this part of the statute is to require that courts impose the specified mandatory minimum sentence on violent felons. The statute does not state that a violent felon has committed an additional crime. In fact, the sentence indicates that it is referring to any offense that violates
this statute, meaning the type of offense outlined in the
preceding sentence. Additionally, the class of the felony does not change for a violent felon, merely the mandatory minimum term of imprisonment.
Accordingly, the Court finds that having been convicted of knowingly and intentionally possessing a firearm as a convicted violent felon, Defendant may not face additional punishment for concealing a weapon during the same incident under the same statute.
Conclusion
Defendant's motion to dismiss Counts Two and Three is GRANTED. The convictions for those two indictments are VACATED. The Clerk is directed to mail a copy of this order to counsel for both parties.
Enter: 7 October 2016
/s/_________
Mary Jane Hall, Judge