882 S.E.2d 27
Va. Ct. App.2023Background
- Delaune was convicted on multiple controlled-substance charges and received an aggregate active term with four years suspended and probation.
- The sentencing order placed Delaune on supervised probation and included the added condition: “the defendant shall be drug free.”
- She admitted at a February 2022 revocation hearing to two violations: using controlled substances and absconding from supervision; the violations occurred before July 1, 2021, but the revocation hearing used procedures under Code § 19.2-306.1 after the parties proceeded under the new statute.
- At the hearing the Commonwealth agreed the drug use was a “technical violation” under Code § 19.2-306.1, but the trial court treated the “be drug free” term as a special condition and revoked the suspended sentence, re-suspending all but 60 days.
- The Court of Appeals considered whether the parties’ election bound the court to the new statute and whether failure to remain “drug free” is a statutory “technical violation,” ultimately reversing and remanding for resentencing under § 19.2-306.1.
Issues
| Issue | Plaintiff's Argument (Delaune) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Applicability of Code § 19.2-306.1 at the revocation hearing | Parties agreed to proceed under the new statute, so it applies despite violations and some proceedings predating July 1, 2021 | The statute should not apply because the violations and some proceedings occurred before the statute took effect | Court: Parties’ on-the-record election bound the proceeding; § 19.2-306.1 applied (following Heart) |
| Whether failure to remain “drug free” is a “technical violation” under § 19.2-306.1(A)(vii) | Violation of the “be drug free” condition is conduct that fits the statutory definition of a technical violation (use/possession of controlled substances) | Trial court: the separately stated “be drug free” term is a special condition outside § 19.2-306.1’s technical-violation limitations | Court: The statute defines technical violations by the underlying conduct; failure to be drug free is a technical violation and must be treated as such |
| Sentencing consequences / assignment of error | The court exceeded the statutory limit by imposing more than allowed for grouped technical violations; assignment of error sufficiently preserved the claim | Commonwealth argued Delaune didn’t properly assign error to the term of incarceration | Court: Assignment adequate; absconding counts as an automatic second technical violation and drug-use must be grouped, so max active incarceration was 14 days; reversal and remand for resentencing |
Key Cases Cited
- Heart v. Commonwealth, 75 Va. App. 453 (2022) (parties’ on-the-record agreement to apply new revocation statute justified using § 19.2-306.1)
- Green v. Commonwealth, 75 Va. App. 69 (2022) (timing and applicability issues under § 19.2-306.1 discussed)
- In re Commonwealth, 222 Va. 454 (1981) (subject-matter jurisdiction cannot be waived; parties cannot confer jurisdiction by consent)
- Harvey v. Commonwealth, 67 Va. App. 336 (2017) (approbate-reprobate doctrine prevents a party from adopting inconsistent positions during litigation)
- Sasson v. Shenhar, 276 Va. 611 (2008) (fugitive disentitlement doctrine and its prerequisites)