3. IS THE IMPOSITION OF CUMULATIVE PUNISHMENTS CONTRARY TO
CONSTITUTIONAL LAW?

The Commonwealth in its closing argument did not request a specific sentence, instead argued that “the sentence ends |the Defendant’s| criminal career” (Disk 4 at 10:23 am). Both aggravated malicious wounding and second-degree murder have statutory maximums that can accomplish this goal, life or forty (40) years, respectively. Yet, the Commonwealth insisted on requiring the jury to return two separate sentences of twenty-five (25) and fifteen (15) years, respectively, that materially differ. This prejudice to the Defendant is demonstrated further by a written question the jury submitted to the Circuit Court, which asked: “Can we consider or suggest on the second-degree murder and and aggravated malicious wounding whether the sentences are consecutive or concurrent?” (Disk 4 11:11 am – 11:12 am). This is a concern of the jury that the Defendant should not have had to consider.

(As the original record is in the form.of five (5) DVD disks, relevant parts not included in the joint appendix are referenced as to the disk number and time stamp).

“The Fifth Amendment guarantee against double jeopardy embodies in this respect… the power to define criminal offenses and to proscribe the punishments imposed upon those found guilty of them…” Whalen v. U.S., 445 U.S. 684 (1980).

In a typical case where a defendant has been subject to impermissible multiple punishments, “the only remedy consistent with |the legislature’s| intent is for the |trial court|, where the sentencing responsibility resides, is to exercise its discretion to vacate one of the underlying convictions.” Ball v. U.S. 470 U.S. 856 (1985).

Because the jury recommended two separate sentences of twenty-five (25) and fifteen years, respectively, that materially differ, the Defendant’s conviction and sentence for aggravated malicious wounding should be vacated and the Defendant should be sentenced only on the conviction for second-degree murder to a term not to exceed fifteen (15) years.

REASONS FOR GRANTING THE PETITION

In accordance with Rule 10(c) of the Rules of the United States Supreme Court, the Petitioner’s conviction for aggravated malicious wounding and second-degrer murder and resulting multiple punishments are in stark contrast of the decisions handed down by the U.S. Supreme Court in Ball, Brown, and Whalen, respectively.

The circumstances in this case present unique constitutional issues, therefore it is necessary for this Court to resolve this matter. There are no Virginia precedent or historical antecedents for multiple, consecutive sentences for aggravated malicious wounding and second-degree murder of the same victim, particularly when the conduct is the same for both statues. To subject the Defendant to multiple punishments in this case inevitably leads to a rule where any person can be charged, convicted, and sentenced consecutively for some degree of assault/wounding and some degree in instances when only a single act or transaction was committed. The Virginia Assembly did not intend this nor is this in harmony with the Constitution of Virginia or the United States Constitution.

* TYPICALLY THE U.S. SUPREME COURT HEARS LESS THAN 1% OF ALL CASES PRESENTED

On October 6th, 2014, the U.S. Supreme Court decided not to hear my case.

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David Bomber #1130793
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