Court can exceed 14-day sentence for absconding probationer

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Where defendant committed three prior technical violations of his probation, the court is not limited to a 14-day sentence after defendant’s fourth technical violation – first-time absconding from probation. This is so despite language in the sentencing guidelines that seemingly indicates otherwise.

Overview

Defendant Williams was on probation and committed three technical probation violations. Under the sentencing guidelines, the court is limited to imposing a 14-day sentence for a second technical violation. That limit does not apply to a probationer who commits three or more technical violations.

The court determined that Williams committed a fourth technical violation when he absconded from probation supervision.

There is sentencing guideline language that provides “a technical violation for absconding from supervision is treated ‘as a second technical violation, and any subsequent technical violation also based on [absconding] shall be considered a third or subsequent technical violation.’”

Discussion

“Williams’s first absconding violation does not trump a third technical violation for purposes of sentencing. … The structure of section 19.2-306.1 makes clear that the Virginia General Assembly views absconding as a more serious technical violation than most other technical violations.

“According to the statute, a first-time absconding violation ‘shall be considered a second technical violation, and any subsequent technical violation also based on [absconding] shall be considered a third or subsequent technical violation.’ …

Hence, although the court ‘shall not impose a sentence of a term of active incarceration’ upon a first-time technical violation, a first-time absconding violation is treated as a second technical violation and can result in up to fourteen days of active incarceration. …

“Additionally, a second-time absconding violation is not limited by the fourteen-day active incarceration applicable to other second-time technical violations. …

“As the Court of Appeals of Virginia opined, ‘In effect, the end of paragraph [19.2-306.l(C)] emphasizes that certain technical violations are more serious[, including absconding], and therefore skip the ‘first technical violation tier.’”

Unaddressed situation

“The statute does not expressly address the situation in which a probationer is a first-time absconder who also has one or more prior technical violations. With the understanding that absconding is both a technical violation and ‘more serious’ than most other technical violations, an absconding violation subsequent to one or more prior technical violations logically should result in a harsher penalty than if the absconding probationer had no prior technical violations.

“This is not supported by the current Guidelines, however. According to the guidance provided in the Guidelines, prior technical violations have ‘no impact on the statutory requirements’ when the current violation is absconding from supervision. …

“The guidance goes on to provide an example to demonstrate this incongruity: ‘if this is the defendant’s third technical violation, but the first-time absconding (Condition 11), score the factor based on the first violation of Condition 9 or 11.’ … (emphasis added).

“The impact of this guidance can be stark, as the instant case demonstrates. This is Williams’s fourth technical violation but the first that includes a technical violation for absconding.

“His recommended guideline range based on a fourth technical violation – with no adjustment for absconding – is between one and four years, while his recommended guideline range using the guidance in the Guidelines – taking into consideration the first-time absconding violation – is no more than fourteen days.

“Further, the probation officer apparently had the discretion to charge Williams with only a technical violation for using a controlled substance, and not for absconding, which would have resulted in the one-to-four year recommended guideline range.”

Holdings

“The Court finds that incorporating the Guidelines guidance to reduce the recommended guideline range for a technical probation violation of absconding is counterintuitive, resulting in an outcome that is inconsistent with the apparent intent of imposing a harsher sentence on probationers who abscond from supervision.

“The issue before the Court is whether the statutory language mandates this outcome. The Court holds that it does not. …

“Williams pleaded guilty to his fourth technical probation violation, and the Court has sufficient evidence to demonstrate that this is Williams’s third or subsequent technical probation violation.

“Therefore, the Court holds that it is not bound by a maximum sentence of fourteen days of incarceration as provided in section 19.2-306.l(C) because, although this is the first time Williams has absconded from supervision, it is not his first technical probation violation.

“The Court holds that the Guidelines are inconsistent with the applicable statute regarding absconding probationers who have prior technical violations and that the concomitant calculated ‘Recommendation Range’ is purely discretionary. …

“[T]he Court holds that Defendant Phillip Williams, a probationer who absconded from supervision for the first time, can be sentenced to incarceration for more than fourteen days because he also has been found guilty of three or more technical violations of probation.”

Commonwealth v. Williams. Record No. CR12-2866-09/10; CR16-2871-06/07/08, Oct. 11, 2022. City of Norfolk Circuit Court (Lannetti). Seth Doherty for defendant, Gregory Turpin for the commonwealth. VLW 022-8-067, 9 pp.