Trial court imposed incorrect sentence

Where the circuit court imposed an active sentence that was longer than the statutory 14-day maximum for a second technical violation of a probation condition, the sentencing order is void ab initio and the case is remanded for resentencing.

“As a matter of first impression, this Court holds that under the sentencing limitations established in Code § 19.2-306.1(C), the circuit court lacked the power to impose a sentence in excess of the statutory maximum 14-day sentence for a second technical violation of probation, rendering Browne’s revocation sentence void ab initio.”

Background

Browne was found guilty of assaulting a police officer. The trial court imposed a three-year sentence and suspended one year and six months. He was placed on supervised probation.

“In a revocation proceeding in April 2021, the circuit court found Browne in violation of the conditions of the suspended sentence and supervised probation in the May 2019 sentencing order. The basis of this violation was failure to follow instructions, positive drug tests, failure to complete substance abuse counseling, and new convictions.

“The circuit court revoked the suspended sentence of one year and six months and re-suspended all but the time served. …

“On October 20, 2021, the circuit court issued a capias to arrest Browne for alleged violations of the conditions of his suspended sentence and supervised probation. The capias stated an offense date of October 15, 2021, for the alleged violations. Probation Officer Christopher Sheets (P.O. Sheets) stated the alleged violations in a major violation report and addendum.

“At the probation violation hearing on November 22, 2021, the major violation report was admitted into evidence as Commonwealth’s Exhibit 1.”

The report noted that Brown failed to report to his probation officer, Sheets, several times, tested positive for a number of controlled substances, did not enroll in drug counseling and did not pay court costs as ordered.

The circuit court found Browne violated his probation terms and conditions.

“Browne filed a motion to reconsider the sentence of incarceration exceeding 14 days. Browne contended that the probation officer calculated his probation revocation sentencing guidelines based on the assumption that he made no payment whatsoever for his court costs, thereby violating a special condition of his suspended sentence.

“Browne claimed that the probation officer would not have included a special condition violation in his sentencing guidelines if the probation officer had known that he had made a one-dollar payment for his court costs prior to the revocation hearing.

“Browne also contended that he would have paid his court costs before the November 2021 revocation hearing, but his attorney could not submit his payment because the payment plan ‘was improperly filled out and docketed under the wrong name.’

“Browne attached to his motion to reconsider a document entitled ‘Court Ordered Payment Schedule,’ which was signed by Browne and P.O. Sheets on April 15, 2021. However, the name typed at the top of the form was ‘James Frederic Johnson.’

“Browne argued that, but for this mistake, his court costs would have been paid before the November 2021 revocation hearing, thereby resolving the alleged violation of a special condition of his suspended sentence.”

The circuit court denied the reconsideration motion. Browne appealed.

Drug counseling

Brown argues that his failure to enroll in drug counseling “is a technical violation because a probationer’s ‘failure to … follow the instructions of the probation officer’ is defined as a ‘technical violation’ in Code § 19.2-306.1(A)(v).”

The commonwealth responds that the circuit court labeled drug counseling as a “special condition” of his probation, thus, his violation is not a technical violation.

“This Court recently rejected the Commonwealth’s claim that any violation of a ‘special condition’ of probation is a non-technical violation for purposes of sentencing under Code § 19.2-306.1.8 See Delaune v. Commonwealth, 76 Va. App. 372, 382-83 (2023). …

“Reversing the trial court, this Court held that the defendant’s failure to remain ‘drug free’ was a technical violation of probation because Code § 19.2-306.1(A)(vii) defines ‘technical violation’ to include a probationer’s ‘failure to … refrain from the use, possession, or distribution of controlled substances.’ …

“Whether or not a condition of probation is labeled a ‘special condition’ by the trial court, a violation of the condition constitutes a technical violation under Code § 19.2-306.1 if the violation is based on the probationer’s failure to comply with any of the requirements set forth in Code § 19.2-306.1(A)(i)-(x). …

“Browne’s failure to enroll in drug counseling constitutes a technical violation of his probation.”

Court costs

“Because the April 2021 revocation order did not prescribe a payment due date other than the expiration date of Browne’s probation, Browne was only required to pay the costs of the revocation proceeding within the three-year period of his supervised probation. …

“A failure to pay the court costs within the three-year period of probation would be a non-technical violation of probation because such violation would be based on the failure to comply with a court-ordered condition of probation that is not defined as a technical violation under Code § 19.2-306.1(A)(i)-(x).

“However, at the time of the November 2021 revocation hearing, the expiration date of Browne’s probationary period was approximately two years and five months away, in April 2024.

“Thus, Browne did not violate the court-ordered condition to pay the costs of the revocation proceeding before his probationary period expires.”

Void sentence

“In sentencing Browne to over 14 months of active incarceration, the circuit court imposed a sentence that exceeds the statutory maximum sentence allowed under Code § 19.2-306.1(C). …

“For purposes of sentencing, Browne’s technical violations of probation collectively constitute a single technical violation. See Code § 19.2-306.1(A)[.] …

“Browne’s technical violation is, at most, a second technical violation of probation under Code § 19.2-306.1 because Browne has only one prior probation violation.

“But the circuit court imposed a sentence of active incarceration of one year, two months, and eleven days – exceeding the fourteen-day maximum sentence for a second technical violation under Code § 19.2-306.1(C).

“As a matter of first impression, this Court holds that under the sentencing limitations established in Code § 19.2-306.1(C), the circuit court lacked the power to impose a sentence in excess of the statutory maximum 14-day sentence for a second technical violation of probation, rendering Browne’s revocation sentence void ab initio.”

Vacated and remanded for resentencing.

Browne v. Commonwealth, Record No. 1373-21-4, April 11, 2023. CAV (unpublished opinion) (Chaney, Athey concurring, Raphael concurring in the judgment). From the Circuit Court of Page County (Ritchie). Caleb J. Routhier for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 023-7-138, 20 pp.