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Failure to stay drug free on probation is violation

A probationer’s violation of a condition to remain drug free was a technical violation, for which the trial court was limited to imposing a 14-day sentence. The trial court erred by revoking probation “and re-suspending all but 60 days of the unserved portion of her sentences.”

Issues on appeal

“Delaune argues that the trial court abused its discretion in concluding her use of controlled substances violated a ‘special condition’ to ‘be drug free’ and therefore was not a ‘technical violation’ under Code § 19.2-306.1.

“The Commonwealth contends that we should not reach that question here because: (1) Code § 19.2-306.1 did not apply to the revocation hearing; and (2) Delaune’s assignment of error does not encompass her argument on appeal. We address these issues first.”

Code § 19.2-306.1

“In Heart v. Commonwealth, 75 Va. App. 453, 462 (2022), we found that the parties had agreed to proceed under Code § 19.2-306.1 based on circumstances that included (1) ‘preparation of the guidelines under the new statute, which all parties received prior to the hearing and relied on throughout the hearing,’ (2) ‘lengthy argument about how to interpret and apply the new statute’ that ‘all counsel participated in,’ and (3) the agreement of the Commonwealth ‘on the record that the pending violation was for a “technical violation, third offense.”’ …

“We find this case indistinguishable from Heart. The guidelines were prepared under Code § 19.2-306.1, and the Commonwealth affirmatively argued at the violation hearing that Delaune’s failure to remain drug free was a technical violation under Code § 19.2-306.1, stating, ‘I do think I have an ethical obligation in regards to the interpretation of the statute, and I do think [Delaune] is correct.’

“As we concluded in Heart, there was an agreement to proceed under the new statute sufficient to satisfy Code § 1-239, and a contrary conclusion would allow the Commonwealth to ‘approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.’ …

“All litigants are subject to the doctrine of approbate and reprobate. A conclusion otherwise would allow a party to agree that a new law applies under Code § 1-239, and if unhappy with the outcome, try again later under the old version of the law. This reversal of course is precisely what the approbate-reprobate bar is intended to prevent.”

Technical violation

“Delaune argued below (and the Commonwealth agreed) that the violation of a condition requiring her to remain ‘drug free’ was a ‘violation based on [her] failure to … refrain from the use, possession, or distribution of controlled substances or related paraphernalia,’ and thus qualified as a ‘technical violation.’

“The trial court instead concluded that by separately adding the condition that Delaune remain “drug free” on top of the general conditions requiring supervised probation and good behavior, the sentencing court imposed a special condition of release not subject to the limitations in Code § 19.2-306.1(C).

“Because the General Assembly specifically defined ‘technical violation’ to include any ‘violation based on’ specified conduct, we disagree.

“The statute focuses on the underlying violation conduct itself, not the particular language or label a trial court may have used in imposing a condition of probation. When the violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a ‘technical violation.’

“Delaune’s failure to remain ‘drug free’ was a failure to ‘refrain from the use, possession, or distribution of controlled substances.’ …

“Code § 19.2-306.1 defines this to be a ‘technical violation’ of probation, and the trial court erred by concluding otherwise. By statute, the trial court was required to group together Delaune’s violation for using controlled substances with her violation for absconding from probation. …

“Because the violation for absconding from probation is automatically treated a as ‘second technical violation,’ the maximum sentence the court could impose was 14 days of active incarceration. The court imposed a sentence in excess of this statutory limit, so we must reverse.”

Reversed and remanded.

Delaune v. Commonwealth, Record No. 0328-22-1, Jan. 10, 2022. CAV (published opinion) (Lorish). From the Circuit Court of the City of Virginia Beach (Duffan). Melissa I. Bray for appellant. Robin M. Nagel, Jason S. Miyares for appellee. VLW 023-7-004, 8 pp.

VLW 023-7-004

Virginia Lawyers Weekly