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‘Intractable behavior’ finding not challenged in trial court

Where the trial court ruled that appellant’s ‘intractable behavior’ at an outstate drug treatment program violated the terms of her probation, appellant did not preserve an appellate challenge of the finding.


Appellant pleaded guilty to two counts of distributing heroin as part of a plea agreement. Appellant agreed to at least an 18-month active sentence followed by an 18-month suspension of incarceration conditioned on successful completion of an adult drug court program.

At sentencing, the trial court imposed a five-year sentence with three years suspended. The court then suspended execution of the sentences conditioned on a successful completion to the drug court program. Later, the court allowed appellant to “complete a residential drug treatment program in Mississippi.”

The court’s order provided that if appellant did not complete the Missouri program, she was to report to Loudoun County’s probation department. Appellant left the Missouri program “against medical advice.” After probation officers learned this, appellant was arrested on a capias.

At a hearing, the commonwealth sought termination of appellant’s probation for “intractable behavior.” Officials reviewed her calls from jail and learned that she had sex with another resident of the Missouri program, once in an office, and another time behind a dumpster.

“At the conclusion of the hearing, the trial court found appellant in violation of the terms and conditions of the adult drug treatment court program and terminated her from the program. The trial court cited ‘undisputed evidence before it that she was having sex with a treatment participant in [the residential] program in an administrator’s office … as well as behind a dumpster.’

“It further noted appellant’s own testimony that ‘fraternization was … frowned upon. Those were her words. I take it that means it was a rule that you were not supposed to do it which means it was a rule that was violated[.] … The trial court found that this was ‘profound evidence of intractable behavior[.]’”

The court terminated appellant from the drug court program. Appellant did not object.


“On appeal, appellant argues that the trial court erred in removing her from the adult drug treatment court program upon its finding of ‘intractable behavior.’ Specifically, she contends that ‘the trial judge imposed his own standard and determined that one who has a personal or sexual relationship is not serious about the Drug Court Program and as a consequence this permissible behavior was allegedly evidence of intractable behavior that required her removal from the program.’

“Appellant asserts that the trial court ‘made no finding of fact that [her] actions had any impact on her successful completion of the Program, [and] the [c]ourt’s decision to terminate [her] from the Program was without legal justification.’”

Appellant did not preserve this argument for appeal because she did not object to the court’s finding of intractable behavior. Under Rule 5A:18, therefore, the merits of this argument cannot be reached.


Appellant also argues that the trial court deprived her of the benefits of her contract – the plea agreement – by removing her from the drug court program.

“Appellant acknowledges that she reviewed the program’s participant handbook before entering the program but argues that it ‘is silent with regard to any restrictions on her ability to have adult relationships or intimate adult relationships with consenting adults not involved’ in the program.

“Accordingly, appellant contends that the court erred as a matter of law, and consequently abused its discretion, by ‘making a finding that [appellant’s] actions that were not prohibited by the rules of the Program somehow violated the terms of the Program.’

“Thus, appellant argues, failure to reverse the trial court’s judgment ‘deprives her of the benefit of her bargain and illegally compels her to suffer for failing to meet “conditions” that were not contemplated in her bargain.’

“As with her first assignment of error, appellant failed to preserve this issue for our review – in this instance, because she never argued below that the trial court’s order terminating her participation in the adult drug treatment court program denied her the contractual benefit of her plea agreement.”


Page v. Commonwealth, Record No. 0551-21-4, Aug. 2, 2022. CAV (Malveaux) From the Circuit Court of Loudoun County (Fleming Jr.) Thomas K. Plofchan Jr. for appellant. Lindsay M. Brooker, Jason S. Miyares for appellee. VLW 022-7-304, 8 pp. Unpublished opinion.

VLW 022-7-304

Virginia Lawyers Weekly