Resentencing ordered in probation violation case

Listen to this article

The trial court properly conducted separate hearings for each of appellant’s probation violations. However, the case is remanded for resentencing.

The trial court imposed six 14-day sentences, to run consecutively, for technical violations of probation conditions. But “Code § 19.2-306.1(A) requires that multiple technical violations arising out of a single course of conduct only count as one violation for purposes of sentencing.”

Appellant’s violations fall under two courses of conduct — missed probation appointments and positive drug screens — “each of which was to be treated on its own as a single course of conduct for sentencing purposes[.]”

Background

“[A] major violation report (MVR) was filed in the trial court alleging that [appellant] Canales had violated Condition 6 of his supervised probation — requiring him to follow his probation officer’s instructions and to report as instructed — for repeatedly failing to report for drug testing and office appointments.”

Canales was arrested. He “contended that the trial court should consider the allegations in the MVR ‘as a whole’ and as ‘one violation.’

“The trial court disagreed, noting that the MVR was ‘chockablock full of discrete incidents’ involving Canales’s drug use and failures to report as instructed.

“Upon concluding that the alleged probation violations did not comprise ‘a single course of conduct’ under Code § 19.2-306.1(A), the trial court decided to hold a separate revocation hearing upon each reported violation event alleged in the MVR.

“The trial court assigned each date of an alleged violation a circuit court number relating to Canales’s probation for grand larceny and for statutory burglary. The trial court scheduled the matters for successive hearings on March 11 and March 25, 2022. …

“Canales asserted that under Code § 19.2-306.1 holding only one revocation hearing was the appropriate procedure; the Commonwealth agreed and further maintained that the trial court should not impose any active sentence in the matter.

“The trial court rejected the parties’ contentions and found Canales in violation of his probation for both grand larceny and statutory burglary based upon his failure to appear for drug testing on August 19 and September 23, 2021, and for failing to appear for a scheduled appointment with the probation officer on September 17, 2021. …

“Thus, the trial court found that Canales violated Condition 6 of his probation on three more occasions.

“For each of the violations, the trial court revoked Canales’s suspended sentences and resuspended all but 14 days.

“The trial court entered 6 orders finding Canales in violation of his probation for grand larceny and for statutory burglary, revoking the suspended sentences, and resuspending all but 14 days to be served consecutively to each other.”

Canales appealed.

Legislative intent

Code § 19.2-306.1(A) “provides the limitation that ‘[m]ultiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section. … (emphasis added).’

“Canales argues that ‘[t]he legislature’s use of the conjunction “or”’ in Code § 19.2-306.1(A) concerning multiple technical violations ‘is central to how [the General Assembly intended that] multiple technical violations are to be adjudicated.’

“He maintains that ‘[b]y having separate hearings on the same day for each technical violation, the trial court ignored the legislature’s authority to establish the procedure for a revocation hearing.’

“Thus, he contends, the procedure the trial court employed violated separation of powers principles. Canales also asserts that the technical violations were ‘a single course of conduct’ under Code § 19.2-306.1(C). …

“[T]he final sentence of Code § 19.2-306.1(A) provides that multiple technical violations that a trial court considers at the same revocation hearing must be treated as one for purposes of sentencing.

“Thus, the statute implicitly acknowledges that it is permissible for a circuit court to hold one revocation hearing upon allegations of multiple probation violations. …

“Nevertheless, we reject Canales’s argument that the statutory scheme required the trial court to conduct one comprehensive revocation hearing for the multiple technical violations alleged in the MVR.

“Neither Code § 19.2-306 nor § 19.2-306.1 contains language limiting a circuit court to one revocation hearing per report of probation violations. To hold otherwise ‘would have us write additional language’ into the statutes ‘not found in the text of the statute[s].’ …

“We thus conclude that the trial court did not exceed its statutory authority by conducting separate revocation hearings upon the probation violations alleged in the MVR.”

Separation of powers

“‘A separation of powers issue arises when one branch of government assumes a role properly belonging to one of the others.’ …

“[T]he procedure the trial court employed in these cases did not violate its statutory authority to hold revocation proceedings under Code § 19.2-306. Therefore, the trial court ‘did not violate the separation of powers by enforcing the provisions of an already-existing statute.’”

Single course of conduct

“[W]e must consider whether the six 14-day sentences the trial court imposed at the May 13, 2022 hearings — ordered to run consecutively for a total of 84 days — were permissible under Code § 19.2-306.1(A) and (C). …

“[I]f the violations found at the May 13, 2022 hearings arose from a ‘single course of conduct’ for which he was found in violation at the March 11, 2022 hearings, the sentencing limitations of Code § 19.2-306.1(C) applied. …

“‘[A] single course of conduct’ is an ordered continuing process, succession, sequence, or series of acts or behavior. … This precludes application of the definition of ‘single course of conduct’ that effectively encompasses every and any course of conduct. …

“The technical violations of Canales’s probation at issue in these appeals fall into two categories: failing to report to the probation office as instructed for appointments or drug testing in violation of Condition 6, and failing to refrain from illegal drug use in violation of Condition 8. …

“Using controlled substances and missing appointments are not the same act or behavior. However, this does not mean that Canales could be sentenced separately for every instance of violation because the series of missed appointments is itself a continuing succession, sequence, or series of the same act; similarly, the two positive drug screens indicate a series of the same act.”

Ruling

“[W]e affirm the trial court’s judgment in the revocations appealed in Record No. 0775-22-4 [separate hearings]. In Record No. 1037-22-4, we affirm the trial court’s ruling that Canales violated the terms of his probation, but vacate Canales’s sentences and remand that matter for re-sentencing and entry of a new revocation order or orders consistent with this opinion.”

Canales v. Commonwealth, Record No. 0775-22-4; 1037-22-4, Sept. 5, 2023. CAV (published opinion) (Clemens) From the Circuit Court of Arlington County. (DiMatteo) Kevin M. Tamul for appellant. Francis A. Frio, Leanna C. Minix , Jason S. Miyares for appellee. VLW 023-7-339, 15 pp.