Emily Katherine Delaune v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Ortiz and Lorish
PUBLISHED
Argued at Norfolk, Virginia
EMILY KATHERINE DELAUNE
OPINION BY
v. Record No. 0328-22-1 JUDGE LISA M. LORISH
JANUARY 10, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kevin M. Duffan, Judge
Melissa I. Bray, Deputy Public Defender, for appellant.
Robin M. Nagel, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The issue here is whether a probationer’s violation of a condition requiring her to “be
drug free” is a “technical violation” as defined by Code § 19.2-306.1(A)(vii) to include “a
violation based on the probationer’s failure to . . . refrain from the use, possession, or distribution
of controlled substances or related paraphernalia.”
FACTUAL BACKGROUND
Delaune was released to probation following her convictions on various controlled
substance charges for which she received a total active sentence of six years of incarceration
with four years suspended. The suspension of her sentences was conditioned on several things.
On top of general language placing Delaune on supervised probation and requiring her to
“comply with all the rules, terms and requirements set by the probation officer,” the sentencing
court’s order contained an additional condition: “[t]he defendant shall be drug free.”
In February 2022, the court below held a hearing to address alleged violations of
Delaune’s probation. Delaune stipulated that she had violated the terms and conditions of her
probation by using controlled substances and by absconding from her supervision. This hearing
took place several months after legislative changes to the statutory scheme governing probation
revocation took effect on July 1, 2021; however, the alleged violations took place before July 1,
2021, and a major violation report and capias alleging a failure to appear were also issued before
that date.
At the hearing, Delaune argued, and the Commonwealth agreed, that her use of controlled
substances was a first “technical violation” under Code § 19.2-306.1. Thus, both Delaune and
the Commonwealth agreed that (because the statute automatically treated absconding as a second
technical violation) the maximum sentence the court could impose under Code § 19.2-306.1(C)
was 14 days. The court disagreed, concluding that the mandate to “be drug free” was a special,
not technical, condition of her probation and suspended sentences. As a result, the court revoked
the remaining four years of Delaune’s suspended sentences and re-suspended all but 60 days.1
ANALYSIS
Delaune argues that the trial court abused its discretion in concluding her use of
controlled substances violated a “special condition” to “be drug free” and therefore was not a
“technical violation” under Code § 19.2-306.1. The Commonwealth contends that we should not
reach that question here because: (1) Code § 19.2-306.1 did not apply to the revocation hearing;
and (2) Delaune’s assignment of error does not encompass her argument on appeal.2 We address
these issues first.
1
At the same hearing, the court found Delaune guilty of failing to appear and sentenced
her to ten days, all suspended. Delaune did not appeal this conviction or sentence.
2
After this appeal was fully briefed, and less than two weeks before argument took place,
the Commonwealth submitted a Rule 5A:4A letter of supplemental authority notifying the Court
that the Commonwealth believed Delaune had been wanted on a capias since May 2, 2022 “for
violations of her probation and suspended sentence” and was thus “considered a fugitive,” such
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Code § 19.2-306.1 took effect on July 1, 2021. Because it affects penalties, this statute
does not apply at a violation hearing when a probationer committed the relevant violations before
the change in law and when revocation proceedings began before the statute took effect—absent
agreement of the parties otherwise. Green v. Commonwealth, 75 Va. App. 69, 83 (2022) (citing
Code § 1-239; Ruplenas v. Commonwealth, 221 Va. 972, 978 (1981)).3 In Heart v.
Commonwealth, 75 Va. App. 453, 462 (2022), we found that the parties had agreed to proceed
under Code § 19.2-306.1 based on circumstances that included (1) “preparation of the guidelines
under the new statute, which all parties received prior to the hearing and relied on throughout the
hearing,” (2) “lengthy argument about how to interpret and apply the new statute” that “all
counsel participated in,” and (3) the agreement of the Commonwealth “on the record that the
pending violation was for a ‘technical violation, third offense.’” Id. at 465. We find this case
indistinguishable from Heart. The guidelines were prepared under Code § 19.2-306.1, and the
Commonwealth affirmatively argued at the violation hearing that Delaune’s failure to remain
drug free was a technical violation under Code § 19.2-306.1, stating, “I do think I have an ethical
that “[u]nder the fugitive disentitlement doctrine, dismissal of the appeal is appropriate.” A few
days later the Commonwealth petitioned this Court under Code § 8.01-675.4 to issue a writ of
certiorari to obtain a copy of a major violation report and unexecuted capias order. This Court
may apply the fugitive disentitlement doctrine to dismiss an appeal when (1) the appellant is a
fugitive, (2) there is a nexus between the current appeal and the appellant’s status as a fugitive,
and (3) dismissal is necessary to effectuate the policy concerns underlying the doctrine. Sasson
v. Shenhar, 276 Va. 611, 623 (2008). Even assuming there is an outstanding capias for Delaune,
we exercise our discretion to not apply the doctrine here because of the late hour in which the
Commonwealth raised the issue (six months after the alleged capias issued and less than two
weeks before argument), because no motion to dismiss the appeal was filed, and because the
Commonwealth’s proffer is that the capias pertains to an alleged new probation violation
occurring after the final judgment on appeal, which would lack a sufficient nexus to this appeal.
We therefore deny the outstanding petition for the writ.
3
In Green, this Court reserved whether the “triggering event date” that determined
which version of the law applied was when Green violated his probation or when his revocation
proceedings began because “[t]he law was actually the same at the time of both events.” 75
Va. App. at 83 n.4.
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obligation in regards to the interpretation of the statute, and I do think [Delaune] is correct.” As
we concluded in Heart, there was an agreement to proceed under the new statute sufficient to
satisfy Code § 1-239, and a contrary conclusion would allow the Commonwealth to “approbate
and reprobate by taking successive positions in the course of litigation that are either inconsistent
with each other or mutually contradictory.” Heart, 75 Va. App. at 465 (quoting Cody v.
Commonwealth, 68 Va. App. 638, 665 (2018)).
At oral argument, the Commonwealth suggested that a concession made by a local
prosecutor was not binding on the Office of the Attorney General on appeal, citing In re
Commonwealth, 222 Va. 454 (1981). As this argument was not raised in Heart, we consider it
here. Jones v. Commonwealth, 293 Va. 29, 50 (2017) (“[S]tare decisis does not ‘foreclose
inquiry’ into an issue not previously ‘raised, discussed, or decided.’” (quoting Chesapeake Hosp.
Auth. v. Commonwealth, 262 Va. 551, 560 (2001))).
In In re Commonwealth, the Supreme Court considered the finality of judgments and a
circuit court’s authority to suspend or otherwise modify a judgment more than 21 days after it
was entered under the precursor to what is now Code § 19.2-3034 and Rule 1:1. The Supreme
Court found that a trial court has no jurisdiction to suspend a sentence more than 21 days after a
sentencing order, and so the fact that the Commonwealth had consented to the trial court’s entry
of orders after this date did not matter. 222 Va. at 465. “The lack of subject matter jurisdiction
cannot be waived and such jurisdiction cannot be conferred on a court by the litigants,” and as
such, “[t]he lack of subject matter jurisdiction may be raised any time.” Virginian-Pilot Media
Cos. v. Dow Jones & Co., 280 Va. 464, 468 (2010). For the same reason, the Commonwealth
4
Code §19.2-303 now allows a court to “suspend or otherwise modify the unserved
portion” of a sentence “at any time before the person is transferred to the Department [of
Corrections], or within 60 days of such transfer.”
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could not be “estopped from repudiating the earlier position erroneously taken by the
Commonwealth’s Attorney” on the court’s jurisdiction to amend a final judgment. In re
Commonwealth, 222 Va. at 465.
Here, however, the Commonwealth’s election to proceed under Code § 19.2-306.1—
permissible under Code § 1-239—does not implicate the court’s subject matter jurisdiction.
Instead, “[t]he approbate-reprobate bar allows the opposing party and the courts to rely on the
position first taken when one party affirmatively assumes inconsistent legal positions on their
own behalf.” Harvey v. Commonwealth, 67 Va. App. 336, 349 (2017). All litigants are subject
to the doctrine of approbate and reprobate. A conclusion otherwise would allow a party to agree
that a new law applies under Code § 1-239, and if unhappy with the outcome, try again later
under the old version of the law. This reversal of course is precisely what the
approbate-reprobate bar is intended to prevent.
The Commonwealth separately alleges that Delaune failed to assign error to the term of
incarceration the court imposed and that as such, Delaune has defaulted any appeal of her
sentence. Delaune assigned the following error: “The trial court erred and abused its discretion
in revoking appellant’s suspended sentence based on a finding that she failed to remain drug free
and was in violation of a special condition of her probation.” The purpose of assignments of
error is to “point out the errors with reasonable certainty in order to direct this court and
opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and
to limit discussion to these points.” Chesapeake Hosp. Auth., 262 Va. at 556 n.2. The issue
Delaune raises here is the same one that the trial court took up below: was Delaune’s use of
controlled substances a violation of a “special condition” of probation that falls outside of Code
§ 19.2-306.1, or was it a “technical violation” of probation under the statute? Her assignment of
error fairly encompasses this argument.
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Turning to the merits of Delaune’s argument, we must determine whether Delaune’s
probation violation was a “technical violation” under Code § 19.2-306.1(C). “Under
well-established principles, an issue of statutory interpretation is a pure question of law which
we review de novo.” Heart, 75 Va. App. at 465 (quoting Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104 (2007)). When interpreting a statute:
[O]ur primary objective is “to ascertain and give effect to
legislative intent,” as expressed by the language used in the statute.
“When the language of a statute is unambiguous, we are bound by
the plain meaning of that language.” [If, however,] the language of
the statute “is subject to more than one interpretation, we must
apply the interpretation that will carry out the legislative intent
behind the statute.”
Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) (citations omitted).
“Code § 19.2-306.1 creates two tiers of probation violations: (1) technical violations,
based on a probationer’s failure to do one of ten enumerated actions, and (2) non-technical
violations.” Heart, 75 Va. App. at 466. The statute “contains specific limitations on sentencing
that apply when a circuit court bases its revocation of a suspended sentence on what the statute
refers to as certain ‘technical violations’ enumerated in the statute.” Green, 75 Va. App. at 75.
Code § 19.2-306.1(A) defines “technical violation” to mean “a violation based on the
probationer’s failure to . . . (vii) refrain from the use, possession, or distribution of controlled
substances or related paraphernalia; . . . or (x) maintain contact with the probation officer
whereby his whereabouts are no longer known to the probation officer.” This paragraph
concludes: “Multiple 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.” Id. For a “first technical
violation,” a court “shall not impose a sentence of a term of active incarceration.” Code
§ 19.2-306.1(C). “However, if the court finds, by a preponderance of the evidence, that the
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defendant committed a second technical violation and he cannot be safely diverted from active
incarceration through less restrictive means, the court may impose not more than 14 days of
active incarceration for a second technical violation.” Id. Finally, “[f]or the purposes of this
subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be
considered a second technical violation.” Id.
Delaune admitted that she violated her probation by using controlled substances and by
absconding from probation. Under Code § 19.2-306.1, a violation for failing to “maintain
contact with the probation officer whereby [her] whereabouts are no longer known to the
probation officer” is listed as a “technical violation” in subsection A and given automatic
treatment as a “second technical violation” in subsection C. As such, the court was authorized to
sentence Delaune to as many as 14 days of incarceration for this violation. The only question is
whether her violation for using controlled substances was another “technical violation” that the
court should have grouped together with the absconding violation or whether it was a
non-technical violation.
Delaune argued below (and the Commonwealth agreed) that the violation of a condition
requiring her to remain “drug free” was a “violation based on [her] failure to . . . refrain from the
use, possession, or distribution of controlled substances or related paraphernalia,” and thus
qualified as a “technical violation.” The trial court instead concluded that by separately adding
the condition that Delaune remain “drug free” on top of the general conditions requiring
supervised probation and good behavior, the sentencing court imposed a special condition of
release not subject to the limitations in Code § 19.2-306.1(C). Because the General Assembly
specifically defined “technical violation” to include any “violation based on” specified conduct,
we disagree. The statute focuses on the underlying violation conduct itself, not the particular
language or label a trial court may have used in imposing a condition of probation. When the
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violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a
“technical violation.”
Delaune’s failure to remain “drug free” was a failure to “refrain from the use, possession,
or distribution of controlled substances.” Code § 19.2-306.1 defines this to be a “technical
violation” of probation, and the trial court erred by concluding otherwise. By statute, the trial
court was required to group together Delaune’s violation for using controlled substances with her
violation for absconding from probation. Code § 19.2-306.1(A) (“Multiple technical violations
. . . considered at the same revocation hearing shall not be considered separate technical
violations for the purposes of sentencing pursuant to this section.”). Because the violation for
absconding from probation is automatically treated a as “second technical violation,” the
maximum sentence the court could impose was 14 days of active incarceration. The court
imposed a sentence in excess of this statutory limit, so we must reverse.
CONCLUSION
For the reasons set forth above, we reverse the court’s order revoking Delaune’s
probation and re-suspending all but 60 days of the unserved portion of her sentences and remand
for resentencing in accordance with Code § 19.2-306.1.
Reversed and remanded.
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