Suspended sentences were improperly revoked

Where appellant probationer’s drug test revealed fentanyl use, the trial court incorrectly suspended her sentences on two charges and imposed a 364-day active sentence.

The use of fentanyl was appellant’s first technical probation violation. Therefore, under the relevant statute, the trial court could not “not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation[.]”

Discussion

“Miller argues that the trial court erred in three ways: by refusing to find that her use of a controlled substance was a technical violation under Code § 19.2-306.1, by abusing its discretion in sentencing her to 364 days of active jail time, and by finding that Miller had violated a special condition of her robbery probation. …

“The trial court’s records on Miller’s original robbery conviction reveal that, while Miller was ordered to comply with supervised probation, the court did not impose any special condition that Miller refrain from the use of illegal drugs. It is therefore clear that under the statutory definitions in Code § 19.2-306.1, Miller’s use of fentanyl was a technical violation of her probation. …

“While Miller had previously been found guilty of violating her robbery probation, her previous revocation was based on new criminal convictions and was therefore not a technical violation under Code § 19.2-306.1(A). Thus, the present violation for drug use was Miller’s first technical violation on this case. …

“Under Code § 19.2-306.1, the trial court could not impose a term of active incarceration for Miller’s first technical violation. Therefore, we find that the trial court erred when it ruled that Miller had violated a special condition of her probation and when it imposed a term of 364 days of active incarceration on this case. …

“The trial court’s records show that Miller’s probation on the weapon charge included a condition to ‘refrain from the use of any illegal drug, marijuana, poppy seeds, CBD oil, and/or hemp’ and to ‘submit to random and observed drug screens.’

“On appeal, Miller argues that her illegal drug use constituted a technical violation of her probation under Code § 19.2-306.1, regardless of whether the court had specifically ordered that she refrain from illegal drug use as a condition of her probation. …

“[T]he conditions on Miller’s probation required, in part, that she ‘refrain from the use of any illegal drug.’ Code § 19.2-306.1(A) states that it is a technical violation to fail to ‘refrain from the use … of controlled substances.’

“Miller’s probation violation at issue here was based solely on her use of fentanyl. Therefore, under Delaune, Miller’s violation for using fentanyl was a technical violation of probation, despite the additional requirements imposed upon her by the circuit court.

“We find that the trial court erred in ruling that Miller’s failed drug test constituted a violation of a special condition of her probation.”

Conclusion

“We affirm the trial court’s ruling that Miller violated the terms of her probation, and we reverse the trial court’s judgment insofar as it finds Miller in violation of special conditions of her probation. We vacate Miller’s sentences on both probation violations, and we remand both cases for resentencing and entry of a new revocation order consistent with this opinion.”

Reversed in part and remanded.

Miller v. Commonwealth, Record No. 1192-22-3, Feb. 7, 2023, 2022. CAV unpublished opinion (Friedman). From the Circuit Court of the City of Staunton (Reed). Brett P. Blobaum for appellant. Jason S. Miyares, Ken J. Baldassari for appellee. VLW 023-7-072, 7 pp.