873 S.E.2d 96
Va. Ct. App.2022Background
- Jessie Lee Green was convicted of felony assault on a law enforcement officer (2018) and later pled to petit larceny (2019); portions of both sentences were suspended and conditioned on five years of supervised probation.
- In April 2021 probation officers reported multiple violations (positive drug tests, missed contacts, failure to complete treatment); capiases issued and Green was arrested June 1, 2021.
- A revocation hearing was scheduled for June 21, 2021; defense requested and received a continuance to July 13, 2021.
- Effective July 1, 2021 the General Assembly enacted Code § 19.2-306.1, which limits active incarceration for enumerated "technical violations" (bar on incarceration for a first technical violation; presumption against incarceration for a second, with up to 14 days if diversion is unsafe).
- At the July 13 hearing the Commonwealth urged application of the pre-July 1 law; the circuit court concluded the revocation proceeding began before the amendment and applied the pre-amendment law, revoked Green’s suspensions and ordered concurrent active incarceration totaling 1 year 6 months. Green appealed.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Green) | Held |
|---|---|---|---|
| Whether Code § 19.2-306.1 applies to Green’s revocation hearing | Proceedings began before July 1, 2021 so pre-amendment law controls | Revocation occurred after July 1, 2021 so the new limits of § 19.2-306.1 govern and cap active incarceration | Court applied law in effect when proceedings began (pre-July 1) and declined to apply § 19.2-306.1 retroactively; affirmed revocation |
| Whether the circuit court abused discretion by imposing full reinstatement of suspended time despite § 19.2-306.1 limits | Pre-amendment statute authorized revocation and imposition of original sentence | § 19.2-306.1 limits active incarceration for first/second technical violations and thus the full term was unlawful | Because the court applied the pre-amendment law, there was no error in imposing the full suspended terms; affirmed |
Key Cases Cited
- Taylor v. Commonwealth, 44 Va. App. 179 (Va. Ct. App. 2004) (statutes amended while an action is pending are applied according to law in effect when action began absent clear contrary intent)
- Washington v. Commonwealth, 216 Va. 185 (Va. 1975) (amended statute applies prospectively unless a contrary legislative intent is manifest)
- Ruplenas v. Commonwealth, 221 Va. 972 (Va. 1981) (penalty in existence at time of offense applies unless Commonwealth elects new law and defendant consents)
- Berner v. Mills, 265 Va. 408 (Va. 2003) (reenacted statutes are prospective absent an express retroactivity provision)
- Allen v. Mottley Constr. Co., 160 Va. 875 (Va. 1933) (use of indefinite articles like "an" or "a" historically construed to indicate broad scope, cited by dissent to support retrospective application)