PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA
                                                             OPINION BY
v. Record No. 170586                               JUSTICE STEPHEN R. McCULLOUGH
                                                              April 5, 2018
CARROLL EDWARD GREGG, JR.


                       FROM THE COURT OF APPEALS OF VIRGINIA


       Carroll Edward Gregg was convicted of common law involuntary manslaughter as well

as involuntary manslaughter under Code § 18.2-154. In a published opinion, the Court of

Appeals of Virginia concluded that Gregg could not be sentenced for both offenses. See Gregg

v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447 (2017). It reversed and remanded for a new

sentencing proceeding, to be held after the Commonwealth elected which conviction it would

seek to have sentence imposed on. The Commonwealth appeals from this judgment. For the

reasons explained below, we will affirm the judgment of the Court of Appeals.

                                        BACKGROUND

       The victim, Junior Montero Sanchez, was in the process of repossessing Gregg’s truck

when Gregg shot and killed him. The autopsy report reflected that Sanchez sustained a single

gunshot wound to the back, which fatally damaged Sanchez’s lung and heart. The shooting

occurred around midnight on June 5 or 6, 2014. Gregg acknowledged shooting Sanchez, but

stated it was an accident.

       A grand jury indicted Gregg for first-degree murder, use of a firearm in the commission

of murder, and shooting into an occupied vehicle and causing the death of another in violation of

Code § 18.2-154. In a jury trial, the court instructed the jury on first-degree murder, second

degree murder, common law involuntary manslaughter, as well as involuntary manslaughter
under Code § 18.2-154. The jury convicted Gregg of both common law involuntary

manslaughter and involuntary manslaughter under Code § 18.2-154. Gregg moved to dismiss

one of the charges, contending that the Double Jeopardy Clause precluded a conviction for both

manslaughter offenses. The trial court denied the motion.

       On appeal, the Court of Appeals of Virginia reversed, holding that Gregg could not be

convicted of both common law involuntary manslaughter and involuntary manslaughter under

Code § 18.2-154. Gregg v. Commonwealth, 67 Va. App. 375, 387-88, 796 S.E.2d 447, 454

(2017). We granted the Commonwealth an appeal from the decision of the Court of Appeals.

                                           ANALYSIS

       We review de novo whether “multiple punishments have been imposed for the same

offense in violation of the double jeopardy clause.” Johnson v. Commonwealth, 292 Va. 738,

741, 793 S.E.2d 321, 322 (2016) (quoting Lawlor v. Commonwealth, 285 Va. 187, 227, 738

S.E.2d 847, 870 (2013)).

       The Code of Virginia does not define the elements of common law involuntary

manslaughter. Under our case law,

               the crime of common law involuntary manslaughter has two
               elements: (1) the accidental killing of a person, contrary to the
               intention of the parties; and (2) the death occurs in the defendant’s
               prosecution of an unlawful but not felonious act, or in the
               defendant’s improper performance of a lawful act. To constitute
               involuntary manslaughter, the “improper” performance of a lawful
               act must amount to an unlawful commission of that lawful act,
               manifesting criminal negligence.

West v. Dir., Dep’t of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007) (citations omitted).

Code § 18.2-36 specifies that this crime is punishable as a Class 5 felony.

       Code § 18.2-154 provides in relevant part:




                                                 2
                       Any person who maliciously shoots at, or maliciously
               throws any missile at or against, any train or cars on any railroad or
               other transportation company or any vessel or other watercraft, or
               any motor vehicle or other vehicles when occupied by one or more
               persons, whereby the life of any person on such train, car, vessel,
               or other watercraft, or in such motor vehicle or other vehicle, may
               be put in peril, is guilty of a Class 4 felony. In the event of the
               death of any such person, resulting from such malicious shooting
               or throwing, the person so offending is guilty of murder in the
               second degree. However, if the homicide is willful, deliberate, and
               premeditated, he is guilty of murder in the first degree.

                       If any such act is committed unlawfully, but not
               maliciously, the person so offending is guilty of a Class 6 felony
               and, in the event of the death of any such person, resulting from
               such unlawful act, the person so offending is guilty of involuntary
               manslaughter.

(emphasis added).

       The Double Jeopardy Clause of the United States Constitution provides that no person

shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. “This constitutional provision guarantees protection against (1) a second prosecution

for the same offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth, 257

Va. 216, 227, 509 S.E.2d 293, 300 (1999). See Illinois v. Vitale, 447 U.S. 410, 415 (1980);

North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “In the single-trial setting, ‘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.’” Blythe v.

Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio, 432

U.S. 161, 165 (1977)).

       “When considering multiple punishments for a single transaction, the controlling factor is

legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983).




                                                  3
See also Albernaz v. United States, 450 U.S. 333, 344 (1981) (“[T]he question whether

punishments imposed by a court after a defendant’s conviction upon criminal charges are

unconstitutionally multiple cannot be resolved without determining what punishments the

Legislative Branch has authorized.”) (quoting Whalen v. United States, 445 U.S. 684, 688

(1980)).

       The Blockburger test, drawn from Blockburger v. United States, 284 U.S. 299 (1932), is

simply a “rule of statutory construction” used to inform the constitutional issue. Whalen, 445

U.S. at 691; see also Missouri v. Hunter, 459 U.S. 359, 366 (1983). It asks whether each

statutory offense requires proof of a fact that the other does not. “The assumption underlying the

rule is that [the legislature] ordinarily does not intend to punish the same offense under two

different statutes.” Whalen, 445 U.S. at 691-92. The very presence of dissimilar elements within

two statutory offenses, provides “a clear indication of contrary legislative intent.” Id. at 692.

“[B]efore applying the Blockburger test, we first consider whether ‘the legislative intent is clear

from the face of the statute or the legislative history,’ and if so, then ‘the Blockburger rule is not

controlling.’” Andrews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010)

(quoting Garrett v. United States, 471 U.S. 773, 779 (1985)).

               Where . . . a legislature specifically authorizes cumulative
               punishment under two statutes, regardless of whether those two
               statutes proscribe the “same” conduct . . . , a court’s task of
               statutory construction is at an end and the prosecutor may seek and
               the trial court or jury may impose cumulative punishment under
               such statutes in a single trial.

Hunter, 459 U.S. at 368-69. If the legislature expressly declares its will to inflict multiple

punishments on the same conduct, the courts must respect its intent to do so—even if the two

statutory offenses fail the Blockburger test. Id. at 368. See also Dalo v. Commonwealth, 37 Va.

App. 156, 165-69, 554 S.E.2d 705, 709-11 (2001), aff’d, 264 Va. 431, 570 S.E.2d 840 (2002).



                                                   4
       The General Assembly will at times specify in the statutory text that a prosecution under

a particular Code provision does not foreclose a prosecution under a different statute. These

provisions manifest a clear legislative intent that prosecution for one crime does not foreclose

prosecution for another crime, however similar or even identical that crime might be. For

example, the carjacking statute, Code § 18.2-58.1, provides that “[t]he provisions of this section

shall not preclude the applicability of any other provision of the criminal law of the

Commonwealth which may apply to any course of conduct which violates this section.” Code §

18.2-58.1(C). Other statutes state that “[t]he provisions of this section shall not preclude

prosecution under any other statute.” See, e.g., Code § 18.2-51.7(E) (female genital mutilation);

Code § 18.2-204.1(E) (fraudulent use of birth certificates). Such language “expresses the

legislative intent for multiple punishments.” Payne v. Commonwealth, 277 Va. 531, 539, 674

S.E.2d 835, 839 (2009). See also Turner v. Commonwealth, 221 Va. 513, 530, 273 S.E.2d 36, 47

(1980) (concluding that the General Assembly intended to punish both capital murder during the

commission of robbery while armed with a deadly weapon under Code § 18.2-34(4) and the use

of a firearm in the commission of a felony under Code § 18.2-53.1, because the latter statute

expressly provided that the offense it defined “shall constitute a separate and distinct felony”

from the predicate offense).

       We also note that in other statutes the General Assembly has manifested the opposite

intent, i.e. to foreclose multiple prosecutions under separate statutes. See Code § 18.2-415

(providing that “conduct prohibited under subdivision A, B or C of this section shall not be

deemed . . . to include conduct otherwise made punishable under this title.”). See Battle v.

Commonwealth, 50 Va. App. 135, 140-41, 647 S.E.2d 499, 501-02 (2007) (reversing conviction

under Code § 18.2-415 because the conduct at issue could have been prosecuted under other




                                                 5
statutes). Another example is Code § 19.2-294.1, which provides that “[w]henever any person is

charged with a violation of [driving a motor vehicle while intoxicated under] § 18.2-266 . . . and

with reckless driving in violation of § 46.2-852 . . . growing out of the same act or acts and is

convicted of one of these charges, the court shall dismiss the remaining charge.”

       Finally, some statutes, despite the absence of express language in the text of the statute

authorizing or forbidding multiple prosecutions, nevertheless evince a legislative intent to

impose multiple punishments. For example, in Payne, we concluded that the capital murder

statute, Code § 18.2-31, demonstrated a legislative intent to establish multiple offenses and that

“each statutory offense [should] be punished separately ‘as a Class 1 felony.’” 257 Va. at 228,

509 S.E.2d at 301. That language in question provided that “[t]he following offenses shall

constitute capital murder, punishable as a Class 1 felony.” Id. at 227, 509 S.E.2d at 300. Each

predicate, therefore, constituted a distinct “offense.”

       With these principles in mind, we turn to the question before us. The General Assembly

has determined that when a person commits the acts proscribed by Code § 18.2-154 and does so

unlawfully but not maliciously, and a death results from the unlawful act, that person “is guilty

of involuntary manslaughter.” The General Assembly did not draw a distinction between species

of involuntary manslaughter – both common law involuntary manslaughter and involuntary

manslaughter under Code § 18.2-154 constitute one crime of involuntary manslaughter. The

defendant’s mental state and his acts are the same for both common law involuntary

manslaughter and manslaughter under Code § 18.2-154, and there is one victim. While not

dispositive, the General Assembly did not provide in Code § 18.2-154, as it has in other statutes,

language to the effect that “[t]he provisions of this section shall not preclude the applicability of

any other provision of the criminal law of the Commonwealth which may apply to any course of




                                                  6
conduct which violates this section.” See, e.g., Code § 18.2-58.1(C). We conclude under these

circumstances that the General Assembly did not intend to permit simultaneous punishment for

both common law involuntary manslaughter and manslaughter under Code § 18.2-154.

       The double jeopardy guarantee protects against being “twice put in jeopardy of life or

limb” for “the same offence.” U.S. Const. amend. V. A conviction under Code § 18.2-154, the

legislature has determined, is “involuntary manslaughter,” and common law involuntary

manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code §

18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore

conclude that Gregg was twice convicted and sentenced in the same trial of the same offense,

namely, involuntary manslaughter, in violation of the Double Jeopardy Clause. ∗

                                         CONCLUSION

       We will affirm the judgment of the Court of Appeals with instructions to remand the case

to the trial court to allow the Commonwealth to elect between the sentences for common law

involuntary manslaughter and involuntary manslaughter under Code § 18.2-154. See Andrews,

280 Va. at 288, 699 S.E.2d at 270. Following this election, the trial court shall thereafter vacate

the other sentence.

                                                                           Affirmed and remanded.




       ∗ Ourconclusion obviates the need to undergo the Blockburger analysis of involuntary
manslaughter under Code § 18.2-154 and common law involuntary manslaughter.


                                                 7
