PRESENT: All the Justices

RONALD EDWARD JOHNSON, JR.
                                                             OPINION BY
v. Record No. 151200                               JUSTICE STEPHEN R. McCULLOUGH
                                                            December 8, 2016
COMMONWEALTH OF VIRGINIA


                       FROM THE COURT OF APPEALS OF VIRGINIA


       Johnson was charged with three felonies: forgery, uttering, and attempting to obtain

money by false pretenses. All three charges stemmed from allegations that Johnson had altered a

check written by a third party and attempted to cash it. Johnson was ordered to appear before the

City of Fredericksburg General District Court for a preliminary hearing, for all three charges, on

June 20, 2013. Johnson did not appear on that date.

       As a consequence of his failure to appear, a grand jury indicted Johnson for three counts

of felony failure to appear under Code § 19.2-128(B). He moved to dismiss two of the three

indictments on the grounds of double jeopardy, arguing that he could be convicted of, at most,

one felony failure to appear. The trial court denied that motion. Johnson then entered a

conditional guilty plea to three counts of felony failure to appear. He was sentenced to serve a

total of six years with five years suspended.

       Johnson appealed to the Court of Appeals. That court rejected his double jeopardy

argument and affirmed his three convictions by a unanimous unpublished opinion. Johnson v.

Commonwealth, Record No. 1138-14-2, 2015 Va. App. LEXIS 211, at *18 (July 7, 2015).

Johnson then appealed to this Court.
                                            ANALYSIS

       Johnson does not contest the willfulness of his failure to appear. Rather, he argues that

he could be convicted of, at most, one count of failure to appear. He contends that double

jeopardy protections preclude the Commonwealth from punishing him for “a single act that is not

separated by time, space, or intent.” In his view, the unit of prosecution or gravamen “of this

offense is the failing to appear, not the number of charges then pending against the defendant

arising from a single arrest and a single institution of process.”

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

offense in violation of the double jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187,

227, 738 S.E.2d 847, 870 (2013).

       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).




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The legislature “may determine the appropriate ‘unit of prosecution’ and set the penalty for

separate violations.” Jordan v. Commonwealth, 2 Va. App. 590, 594, 347 S.E.2d 152, 154

(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.” Shears v. Commonwealth, 23 Va.

App. 394, 401, 477 S.E.2d 309, 312 (1996).

       Code § 19.2-128(B) provides that “[a]ny person . . . charged with a felony offense . . .

who willfully fails to appear before any court as required shall be guilty of a Class 6 felony.”

Subsection (C) of that same statute provides in relevant part that any person who has been

“charged with a misdemeanor offense . . . who willfully fails to appear before any court as

required shall be guilty of a Class 1 misdemeanor.”

       The plain language of Code § 19.2-128 indicates that the legislature intended to establish

each felony charge as the unit of prosecution for a failure to appear. The legislature selected the

term “a” felony, thereby indicating that each felony charge could serve as the predicate of a

failure to appear conviction. Instead of using the singular “a” felony, the legislature could have

stated, for example, that a defendant charged with “one or more felonies” who fails to appear is

guilty of a Class 6 felony. It did not. We must presume that the General Assembly chose, with

care, the words that appear in a statute, and must apply the statute in a manner faithful to that

choice. Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012) (citing Zinone v.

Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011)).

       The symmetry of permitting a failure to appear charge for each underlying felony makes

sense. In the context of reviewing a conviction for forging a summons, the Court of Appeals in

Hines v. Commonwealth, accurately observed that “[e]ach summons has a separate existence




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with separate consequences and effects.” 39 Va. App. 752, 759, 576 S.E.2d 781, 785 (2003). A

person is in violation of Code § 19.2-128 when he “willfully fails to appear before any court as

required.” (emphasis added). Three separate summonses independently required Johnson to

appear at the General District Court of the City of Fredericksburg at 10:30 a.m. on June 20,

2013. And just as each summons has a separate existence with separate consequences and

effects, each felony charge also has separate consequences and effects. A defendant’s willful

failure to appear prevents the Commonwealth from proceeding on each of the separate felonies

and it prevents the court from adjudicating each charge. Justice (whether conviction or acquittal)

is thus delayed or denied as to each specific felony. In addition, the defendant’s absence will

often, if not always, inconvenience multiple witnesses called to testify in separate but related

cases. The fact that Johnson’s three separate felonies were scheduled to be heard at one time for

the efficient administration of justice does not change the result. The net effect of his willful

failure to appear were three distinct injuries to the administration of justice, even if these injuries

occurred at the same time.

       It is not anomalous for the legislature to hold a defendant accountable with multiple

charges for an offense that occurred in one place and time. For example, in Kelsoe, we

concluded that a defendant could be convicted of three counts of brandishing a firearm when the

defendant brandished a gun simultaneously at three individuals. 226 Va. at 199, 308 S.E.2d at

104. Similarly, in Jordan, the Court of Appeals concluded that a defendant could be convicted

of multiple robberies when he threatened two employees with his gun at the same time. 1 2 Va.

App. at 596-97, 347 S.E.2d at 156.



       1
          We find inapposite Johnson’s comparison of his convictions for failure to appear with
the facts considered in Lane v. Commonwealth, 51 Va. App. 565, 579, 659 S.E.2d 553, 559
(2008). In Lane, the Court of Appeals concluded that a defendant could not be convicted of


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       Furthermore, as the Commonwealth pointed out at trial and notes again on appeal,

Johnson’s interpretation would lead to the incongruous result that a defendant charged with three

felonies who failed to appear could be convicted of only one felony, whereas a defendant

charged with two felonies and one misdemeanor could be convicted of one felony and one

misdemeanor. Attempting to avoid this anomaly, Johnson contends that the prosecution in such

a scenario would elect to proceed with a felony or a misdemeanor failure to appear. The plain

language of the statute does not support this reading. Code § 19.2-128(B) plainly provides

“[a]ny person . . . charged with a felony offense . . . who willfully fails to appear before any court

as required shall be guilty of a Class 6 felony.” Subsection (C) of that same statute provides that

any person who has been “charged with a misdemeanor offense . . . who willfully fails to appear

before any court as required shall be guilty of a Class 1 misdemeanor.” 2 The statute says nothing

about establishing an election between a felony and a misdemeanor in such a situation. We will

not “‘add language to [a] statute [that] the General Assembly has not seen fit to include.’”

Commonwealth v. Amos, 287 Va. 301, 307, 754 S.E.2d 304, 307 (2014) (citations omitted).




three drug possession counts based on three separate drug caches unless the evidence established
that the defendant “possessed different demonstrated intents sufficient to support three separate
charges.” Id. at 582, 659 S.E.2d at 561. Simply put, we discern a different legislative intent
animating the failure to appear statutes from the drug possession statutes. The failure to appear
statute ensures the respect for and the efficient administration of justice by requiring the
defendant to appear for each separate charge. These concerns are different from possessory
offenses like the possession of illegal drugs.
       2
          Johnson turns our attention to authority from other states. He also invokes the rule of
lenity. We have reviewed the cases Johnson cites, but find them unpersuasive due to the
difference in the wording of the statutory schemes involved. Moreover, the rule of lenity, under
which we give the defendant in a criminal case the benefit of any ambiguities in a penal statute,
Wesley v. Commonwealth, 190 Va. 268, 276, 56 S.E.2d 362, 365 (1949), does not apply when
the statute is unambiguous. Here, we do not find Code § 19.2-128(B) ambiguous.


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       We agree with the conclusion of the Court of Appeals, that “the unit of prosecution for

failure to appear corresponds to the number of individual felony offenses for which a defendant

is obligated to appear.” Johnson, 2015 Va. App. LEXIS 211, at *9.

                                          CONCLUSION

       We will affirm the judgment of the Court of Appeals.

                                                                                            Affirmed.


JUSTICE MIMS, with whom JUSTICE POWELL joins, dissenting.

       I disagree with the Court’s holding that the unit of prosecution under Code § 19.2-128(B)

is the number of underlying felony offenses with which the defendant was charged. As I

interpret the language of that provision, the criminal act is “willfully fail[ing] to appear before

any court as required.” The summonses here required Johnson to appear at one time and one

place, so there is one unit of prosecution. I therefore must respectfully dissent.

       When a statute establishes a criminal offense, there is a difference between the elements

that set forth the criminal act and those that set forth the grade or classification of punishment.

Code § 19.2-128 defines the criminal act as “willfully fail[ing] to appear before any court as

required.” That is the language that appears in all three subsections.

       The majority focuses on the words “a felony offense” in subsection (B) and concludes

that the General Assembly’s use of the singular demonstrates its intent to punish a defendant

separately for each of them. However, the use of “a felony offense” in subsection (B), especially

juxtaposed with the parallel use of “a misdemeanor offense” in subsection (C), shows that the

respective phrases are simply grading elements that make the criminal act of failure to appear a

felony or misdemeanor depending on the classification of the underlying charge or charges, no

matter how many there are. Where a defendant who fails to appear was charged both with



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felonies and misdemeanors, the fact that there was at least one felony entitles the Commonwealth

to prosecute him or her under Code § 19.2-128(B), if it be so advised, and thereby seek the

felony punishment.

       Nevertheless, the majority reasons that the General Assembly’s use of the singular “a

felony offense” demonstrates that the legislature intended the number of underlying offenses to

be the unit of prosecution. However, the words “a felony offense” are the most logical and

efficient expression of the difference between classifying those failures to appear that are

punished as a Class 6 felony under subsection (B) and those that are punished as a Class 1

misdemeanor under subsection (C). The General Assembly could not, as the Commonwealth

suggested at oral argument, have used the words “felony offenses” instead of “a felony offense”

without suggesting that the Commonwealth could prosecute a defendant for failing to appear

only if he or she had been charged with more than one underlying offense: a defendant charged

with only one underlying felony has not been charged with “felony offenses,” as the statute

would require if the legislature had chosen those words. Nor could the General Assembly, as the

Commonwealth also suggested at oral argument, have used the words “any felony offense.” The

word “any” creates, rather than resolves, ambiguity about whether an activity must be singular or

plural. Acey v. Commonwealth, 29 Va. App. 240, 249-50, 511 S.E.2d 429, 433 (1999).

       There is, however, a simple way the General Assembly could have clearly expressed that

a defendant who fails to appear may be punished for each underlying offense charged, if that had

truly been its intent: it could have used the word “each” in the statute. Cf. Phelps v.

Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926, 927 (2008) (noting that “a” may mean “any”

or “each”). For example, it could have said “[a]ny person (i) charged with a felony offense or

(ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319




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who willfully fails to appear before any court as required shall be guilty of a Class 6 felony for

each such offense.” Yet, when choosing its words with care, it chose not to do so. See Bates v.

Commonwealth, 287 Va. 58, 66, 752 S.E.2d 846, 850 (2014).

       The Court of Appeals likened this case to Mason v. Commonwealth, 49 Va. App. 39, 636

S.E.2d 480 (2006), and Sandoval v. Commonwealth, 64 Va. App. 394, 768 S.E.2d 709 (2015).

Those two cases arose from intertwined facts. Sandoval was incarcerated for sex offenses when

he called Mason, his wife, and induced her to take explicit photographs of his step-daughter and

bring them to him. Sandoval, 64 Va. App. at 404, 768 S.E.2d at 712. Mason took 10 such

photographs and was charged with a separate offense for each. Mason, 49 Va. App. at 47-48,

636 S.E.2d at 484. The criminal act was “[s]elling, giv[ing] away, distribut[ing], display[ing]

with lascivious intent, purchas[ing], or possess[ing] with intent . . . sexually explicit visual

material which utilizes or has as a subject a person less than eighteen years of age.” Former

Code § 18.2-374.1(B)(4) (2004 Repl. Vol.); see now Code § 18.2-374.1:1(C). The Court of

Appeals held that each photograph created a separate violation because Code § 18.2-374.1(A)

defined “sexually explicit material” to include “a photograph.” 49 Va. App. at 47-48, 636 S.E.2d

at 484. Sandoval later argued that the Court of Appeals should overrule that holding but the

court declined. Sandoval, 64 Va. App. at 418-19, 768 S.E.2d at 719-20.

       Although the Court of Appeals found Mason and Sandoval relevant to this case because

both Code §§ 18.2-374.1(A) and 19.2-128(B) use the word “a,” that interpretation overlooks the

fact that the criminal act in former Code § 18.2-374.1(B) was the “[s]elling, giv[ing] away,

distribut[ing], display[ing] with lascivious intent, purchas[ing], or possess[ing] with intent” a

certain thing: i.e., “sexually explicit material.” The criminal act cannot be completed without

that thing, however it may be defined. By contrast, the criminal act in Code § 19.2-128 is




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“willfully fail[ing] to appear before any court as required.” That criminal act can be completed

whether the underlying offense is a felony or misdemeanor. * The only difference the underlying

offense makes is whether the criminal act will be punished as a Class 6 felony under subsection

(B) or as a Class 1 misdemeanor under subsection (C).

       The other cases cited by the majority and the Court of Appeals in affirming the circuit

court’s denial of Johnson’s motion to dismiss are all similarly distinguishable because the

criminal acts in those cases permitted those defendants to be charged with multiple violations

based on the facts of each case. In Kelsoe v. Commonwealth, 226 Va. 197, 197, 308 S.E.2d 104

(1983) (per curiam), the defendant pulled a pistol from his pocket while arguing with three

people. The criminal act was “point[ing], or brandish[ing] any firearm . . . in such a manner as to

reasonably induce fear in the mind of another.” Code § 18.2-282. The Court concluded that

“another” meant another person. Because his single act reasonably induced fear in the minds of

three persons, there were three separate offenses. 226 Va. at 199, 308 S.E.2d at 104.

       In Jordan v. Commonwealth, 2 Va. App. 590, 592, 347 S.E.2d 152, 153 (1986), the

defendant entered a restaurant with a handgun and ordered one employee to give him the money

in the register and a separate employee to give him the money in an office safe. The criminal act

was “robbery . . . by the threat or presenting of firearms.” Code § 18.2-58. As this Court had in

Kelsoe, the Court of Appeals concluded that there were two offenses – one for each employee

from whom the defendant took money by threat with the handgun. 2 Va. App. at 596-97, 347

S.E.2d at 156.

       In Shears v. Commonwealth, 23 Va. App. 394, 396, 477 S.E.2d 309, 310 (1996), the

defendant had one bag of cocaine in his pocket and another on the kitchen floor of the mobile


       *
        Consequently, neither felonies nor misdemeanors are referred to in subsection (A),
which deals with forfeiture of security, because neither is relevant there.


                                                9
home where he was arrested while selling drugs. The criminal act was “possess[ing] with intent

to manufacture, sell, give or distribute a controlled substance.” Code § 18.2-248. The Court of

Appeals concluded that there were two offenses because there were two separate acts of

possession – the actual possession of the bag in his pocket and the constructive possession of the

bag on the kitchen floor. 23 Va. App. at 401, 477 S.E.2d at 312.

       By contrast, regardless of the number of underlying offenses, Johnson was required “to

appear before any court” at one time and place: the General District Court of the City of

Fredericksburg at 10:30 a.m. on June 20, 2013. When he willfully failed to do so, he committed

a single violation of Code § 19.2-128(B) because that was the single act that provision

criminalizes. I therefore would reverse the judgment of the Court of Appeals.




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