Exceptional error warrants reversal of probation revocation

In a divided, unpublished opinion, the Court of Appeals of Virginia has reversed the revocation of a defendant’s suspended sentences and the circuit court’s imposition of the maximum sentence for what was his first technical violation in violation of statutory sentencing limitations.

The defendant, convicted of sexual offenses, admitted to several unadjudicated probation violations after repeated warnings. Frustrated with his noncompliance, the circuit court revoked the defendant’s suspended sentences and imposed the underlying maximum 10-year sentence.

But Judge David Bernhard said the defendant’s conduct “facially amounted only to a first technical probation violation, conduct expressly capped by Code § 19.2-306.1(C) at no incarceration.”

Bernhard also found that “alleged GPS violations, never noticed as more than infractions of probation officer-imposed conditions, and never imposed by court order except as part of postrelease supervision, cannot support the revocation sentence imposed.”

And because the circuit court’s error was “exceptional,” Judge Vernida R. Chaney joined Bernhard in applying the ends of justice exception to reverse and remand Bland v. Commonwealth (VLW 025-7-326).

In a dissenting opinion, Judge Randolph A. Beales said the court need not apply the ends of justice exception here “because the record before this court on appeal clearly establishes that Bland— a ‘Sexually Violent Predator’ in Virginia—violated a special condition of his suspended sentence when he failed to comply with the GPS monitoring requirement imposed by the circuit court in the final sentencing order.”

Neither the public defender’s office nor the attorney general’s office responded to a request for comment.

Revocation 

After pleading guilty to failing to register as a sex offender, Kevin Jeron Bland was sentenced to two five-year prison terms, suspended on Bland’s good behavior and placement on supervised probation and GPS supervision.

Bland’s probation officer later said that he violated several conditions and a revocation hearing ensued. Bland admitted using drugs and alcohol, disregarding instructions about where to live, unauthorized social media usage, viewing pornography and not installing internet monitors.

In revoking Bland’s suspended sentences and imposing the entire 10-year sentence, the circuit court concluded that Bland would not follow the law or the court’s orders. This appeal followed.

Four-step analysis

Whether Bland’s conduct fell within a technical or nontechnical category, Bernhard said the court would apply the framework outlined in Diaz-Urrutia v. Commonwealth, which sets forth a mandatory four-step analysis.

The Diaz-Urrutia court held that technical violations involve specific requirements imposed on all probationers by probation officers, while non-technical violations include subsequent criminal convictions, violations of a non-technical condition, or a good conduct violation.

“Code § 19.2-306.1 restricts the active sentences that could be imposed on Bland for first and second technical violations, directing there can be no term of incarceration upon a first technical violation and granting circuit courts discretion to impose, in some circumstances, up to 14 days of incarceration for a second violation,” Bernhard wrote.

Despite its duty to apply the statute, the judge pointed out that the circuit court “was not required to expressly state that it fulfilled this duty, the record and resulting judgment make clear that the statutory cap was not applied.”

However, the circuit court must engage in the four-step process to classify the basis of the revocation proceeding before determining what sentence it may impose.

First, the court must determine whether the conduct matches technical violations listed in and limited by § 19.2-306.1(A). If not, then the court asks whether the conduct was covered by another condition other than generic good behavior. If so, sentencing authority is not limited.

But if the sentencing order conditions do not match the conduct, the court asks whether the conduct resulted in a new criminal conviction, thereby removing any sentencing restrictions. Finally, the court looks to whether the defendant engaged in a good conduct violation.

Understandable frustration

Here, the record did not indicate that Bland had been previously adjudicated for a technical violation.

“The major violation report, or MVR, recounted a series of unadjudicated violations in the wake of repeated warnings and instructions,” Bernhard wrote, adding that the “frustration with Bland exhibited by the circuit court judge is understandable.”

“The problem here is that the circuit court did not possess the statutory authority to sentence Bland in the manner it did,” the judge explained. “All of Bland’s violations noticed for adjudication involved special conditions imposed by the probation officer, not the court.”

The court emphasized in Ellis v. Commonwealth that “notwithstanding [the] permissible delegation of supervisory authority, a court may not rely upon probation officers to independently impose ‘special conditions.’ That task is reserved for the circuit court at sentencing.”

“Accordingly, the circuit court acted beyond its authority under § 19.2-306.1(C) in imposing a term of active incarceration for Bland’s first technical violation of probation,” Bernhard concluded.

GPS monitoring

For the first time on appeal, the government contended that Bland’s alleged violations of a special GPS-monitoring condition could support the circuit court’s revocation sentence.

Bernhard pointed out that the circuit court did not include the GPS violations as reasons for its revocation decision.

“More to the point, the circuit court could impose incarceration only for noticed violations that were more than probation officer-imposed conditions,” he said. “Before Bland could be incarcerated, he was entitled to ‘written notice of the claimed violations.’”

Enforcement of postrelease supervision conditions lies with the parole board, not the circuit court.

“For GPS monitoring to constitute an enforceable provision directly by the circuit court against Bland, the sentencing order was required to set forth that obligation ‘in definite terms to sufficiently place [Bland] on notice as to this important condition,’” Bernhard wrote.

In this case, Bland received notice only that GPS monitoring was imposed as part of his parole supervision.

“The circuit court did not identify GPS monitoring as a basis for revocation because, under the sentencing order, it was neither an enforceable condition of probation nor a term upon which the court relied,” the judge said.

Thus, the alleged GPS violations could not support the revocation sentence imposed by the circuit court.

‘Rare convergence’

Bland acknowledged that he did not preserve an objection to the circuit court’s disregard of Code § 19.2-306.1(C), which ordinarily would bar appellate review under Rule 5A:18.

But Bernhard said this case presented more than a routine sentencing error.

“In the context of sentencing, the Supreme Court of Virginia has recognized the ends of justice exception may apply when the trial court fails to adhere to a mandatory sentencing scheme, thereby imposing a punishment not authorized by law,” the judge noted.

The Supreme Court said in Amazon Logistics, Inc. v. Va. Emp. Comm’n that the exception exists “to prevent a grave injustice ‘or the denial of essential rights.’” Virginia precedent has established that disregard of mandatory statutory sentencing limitations fits the exception.

“We do not suggest that routine sentencing errors or ordinary misapplications of Code § 19.2-306.1 would justify ends of justice relief,” Bernhard cautioned.

“When a statutory cap is completely disregarded and the maximum incarceration term is imposed where none is authorized, this may create a grave injustice that undermines confidence in the legal system and where application of the ends of justice exception may find its rightful place,” the judge said.

Bernhard concluded that this case presented “a rare convergence of factors that collectively distinguish it from more typical appeals where the exception would not apply[.]”

“The result is not a marginal misstep, but the most grave form of sentencing error the circuit court could have made in this case in derogation of Code § 19.2-306.1(C),” the judge said.

“To ignore this level of disregard for the statutory limits under these precise circumstances would frustrate the General Assembly’s express intent, offend basic principles of fairness and transform trial defense counsel’s silence into a vehicle for the imposition of a wholly unpermitted maximal penitentiary sanction,” he opined.

Given the unique combination of circumstances in this case, the majority applied the ends of justice exception to reverse the circuit court’s revocation order.