Rasheem Watts v. Commonwealth of Virginia ( 2024 )


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  •                                            COURT OF APPEALS OF VIRGINIA
    PUBLISHED
    Present:  Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton,
    Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and Frucci
    Argued at Richmond, Virginia
    RASHEEM WATTS
    OPINION BY
    v.       Record No. 1132-22-1                                     JUDGE VERNIDA R. CHANEY
    NOVEMBER 6, 2024
    COMMONWEALTH OF VIRGINIA
    UPON A REHEARING EN BANC
    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
    L. Wayne Farmer, Judge
    Kelsey Bulger, Deputy Appellate Counsel (Virginia Indigent
    Defense Commission, on briefs), for appellant.
    Justin Hill, Assistant Attorney General (Jason S. Miyares, Attorney
    General, on brief), for appellee.
    A circuit court speaks only through its written orders as determined by the express language
    of the order. The court may not interpret a written order to include a condition that the order does
    not contain, nor may it give independent effect to an oral instruction not incorporated into a written
    order.
    The Circuit Court of the City of Suffolk revoked Rasheem Watts’s probation and suspended
    sentence on a malicious wounding conviction and sentenced him to three years of active
    incarceration. The court found that Watts had violated non-technical special conditions of probation
    by failing to follow his probation officer’s “special instructions” for gang members, a requirement
    that was never incorporated into the court’s written sentencing orders. The Commonwealth urges
    us to defer to the circuit court’s interpretation of the written orders to include the special
    gang-related probation conditions, arguing that the interpretation was reasonable.
    For the reasons stated below, we find that the circuit court did not interpret its own order to
    include written gang-related prohibitions. Nor do we find that such an interpretation would be
    reasonable. As such, this Court reverses the circuit court’s judgment and remands for
    resentencing.
    We would further hold that the gang-related conditions are the instruction of Watts’s
    probation officer and are technical conditions of his probation. We disagree and dissent from
    Judge Raphael’s concurrence instructing the circuit court on remand to consider whether the
    2021 order should be amended nunc pro tunc under Code § 8.01-428(B) to incorporate a gang
    association special condition of probation because Code § 8.01-428(B) does not enable the
    circuit court to reassume jurisdiction over the sentencing order to insert the -gang-
    related- condition as a non-technical condition of Watts’s probation. Under these circumstances,
    we would have our Court reverse the circuit court’s judgment, vacate the revocation sentencing
    order, and remand for resentencing subject to the limitations in Code § 19.2-306.1(C).1
    BACKGROUND
    I. Circuit Court Proceedings
    A. Original Conviction and Sentencing
    In May 2016, the circuit court convicted Watts of malicious wounding and firearm
    possession by a convicted felon. On the malicious wounding conviction, the court sentenced
    Watts to incarceration for six years with four years and six months suspended. On the firearm
    conviction, the court sentenced Watts to incarceration for five years with three years suspended.
    The court conditioned both suspended sentences on five years of supervised probation. The
    sentencing orders also provided, as a condition of the suspended sentences and probation, that
    1
    Circuit Court Case No. CR16000356-02.
    -2-
    “[t]he defendant shall comply with all the rules and requirements set by the probation officer. . . .
    The defendant shall have no contact with the victim, [E.W.], or his family members.”
    B. Watts’s First Probation Revocation
    Watts began probation in March 2019 under the supervision of Special Probation Officer
    Kathy Dunlow (SPO Dunlow). In January 2020, SPO Dunlow issued a major violation report
    alleging that Watts (1) violated Probation Condition 62 requiring Watts to “follow the Probation
    and Parole Officer’s instructions and . . . be truthful, cooperative, and report as instructed” and
    (2) violated Probation Condition 8 prohibiting him from “unlawfully us[ing], possess[ing], or
    distribut[ing] controlled substances or related paraphernalia.” As to the alleged violation of
    Condition 6, the report stated that on March 5, 2019, SPO Dunlow had directed Watts to sign a
    document entitled “Specialized Instruction for Validated Gang Members” (2019 special gang
    document), which imposed special gang-related conditions of probation. The report alleged that
    Watts had violated two of the conditions enumerated in the document by continuing to associate
    with known gang members and posting social media content indicating his gang affiliation. The
    report also alleged that Watts had violated Condition 8 by testing positive for marijuana on
    several occasions in 2019.
    At a probation violation hearing on September 8, 2021, the circuit court found Watts in
    violation of the terms and conditions of his probation and revoked Watts’s probation and
    suspended sentences. The court issued written revocation sentencing orders dated September 14,
    2021 (2021 revocation sentencing orders). The circuit court imposed the previously suspended
    sentence on the malicious wounding conviction and re-suspended four years and six months. On
    the firearm conviction, the circuit court imposed the previously suspended sentence and
    2
    Probation Conditions 4, 6, and 8 originate from Form PPS 2 Conditions of Supervised
    Probation which is issued by the Virginia Department of Corrections and routinely given to
    probationers. This form was not incorporated into the 2021 revocation sentencing orders.
    -3-
    re-suspended two years and six months. On both sentences, the court conditioned the suspended
    sentences on supervised probation for five years “under the same terms and conditions as
    previously ordered.” The 2021 revocation sentencing orders also provided, as a condition of the
    suspended sentences and probation, that “[t]he defendant must comply with all the rules and
    requirements set by the probation officer. Probation may include substance abuse counseling
    and/or testing as deemed necessary by the Probation Officer.” The orders contained no express
    language imposing gang-related prohibitions.
    During the September 2021 revocation hearing, the circuit court made the following oral
    pronouncement from the bench:
    I also specifically incorporate as a special condition of your
    probation all the gang-related prohibitions that were in previous
    violation on your previous order that probation and parole puts on
    you. And so there’s no confusion this is a special condition of
    probation. All those conditions that they put on you are going to
    be part and parcel of the order as a special condition of probation.
    However, this oral pronouncement was never incorporated into the 2021 revocation sentencing
    orders. The written orders contained no language expressly incorporating the court’s oral
    instruction to comply with the special gang-related probation conditions or the transcript of the
    September 2021 revocation hearing memorializing the ruling. The written orders also did not
    contain any language expressly incorporating the 2019 special gang document that Watts had
    signed, nor was this document entered into the record of the 2021 revocation proceedings.
    C. Watts’s Second Probation Revocation
    After Watts served his first probation revocation sentence, he returned to supervised
    probation in January 2022. On January 18, 2022, at the direction of SPO Dunlow, Watts signed
    a document entitled “Special Instructions—Confirmed Gang/STG Members” (2022 special gang
    document). The form identified Watts as a member of “Rollin 40’s Gang/STG” and instructed
    Watts as follows:
    -4-
    You have been placed on Supervision by the Virginia Parole Board
    and/or the Circuit Court. Pursuant to Condition 6 of your
    Conditions of Supervision, having been confirmed as a gang/STG
    member, you are now being directed to comply with the following
    instruction(s) as a requirement of your probation.
    (Emphases added). Watts’s signature at the bottom of the form follows a list of “special
    instructions” and a statement “acknowledg[ing] receipt of the instruction(s) and agree[ing] to
    comply with the instruction(s).” SPO Dunlow also signed the form.
    On May 17, 2022, SPO Dunlow filed a major violation report alleging that Watts had
    committed a second violation of probation. The report alleged that Watts (1) violated Probation
    Condition 4—requiring Watts to report to probation “within three working days of [his] release
    from incarceration, and as otherwise instructed thereafter”—and (2) violated Probation
    Condition 6—requiring Watts to “follow the Probation and Parole Officer’s instructions and . . .
    be truthful, cooperative, and report as instructed.”
    The report alleged that Watts violated Condition 4 by failing to report for three scheduled
    appointments with his probation officer and violated Condition 6 by failing to follow two of the
    special gang-related probation conditions enumerated in the 2022 special gang document.
    Specifically, the report stated that Watts had violated the conditions by having repeated phone
    contact with multiple incarcerated gang members and posting writings, photos, and a video on
    social media showing his gang involvement.
    On July 8, 2022, the circuit court3 held a hearing on the probation violations alleged in
    the May 2022 violation report. At this proceeding, the circuit court read a portion of its prior
    September 2021 oral ruling into the record as evidence for the court to consider but took no
    3
    Judge L. Wayne Farmer presided over Watts’s 2022 revocation hearing. Judge Robert
    H. Sandwich, who presided over the 2021 revocation hearing, made the oral pronouncement from
    the bench, and also drafted the 2021 revocation sentencing orders which Judge Farmer later
    interpreted. For the sake of consistency, we refer to both judges as “the circuit court.”
    -5-
    action to modify the 2021 revocation sentencing orders to incorporate the oral pronouncement.
    The court also entered the 2022 special gang document into the record as a trial exhibit but did
    not enter the previous 2019 special gang document into the record or modify the 2021 sentencing
    orders to expressly incorporate this document.
    Watts did not contest the alleged probation violations or the evidence set forth in the
    May 2022 violation report. By counsel, Watts stipulated to his commission of the alleged
    violations of Conditions 4 and 6 and noted that the alleged violations were not special condition
    violations but were technical violations under Code § 19.2-306.1. The circuit court responded,
    “Correct.” Based on Watts’s stipulations and the contents of the May 2022 violation report, the
    circuit court found Watts in violation of the terms and conditions of probation.
    The circuit court then stated that the question regarding sentencing was whether the
    circuit court’s prior oral ruling made the “gang-related prohibitions” “part and parcel of the order
    as a special condition of probation.” Here, the court reviewed the 2021 revocation sentencing
    orders and noted that “there is no language in that order” referring to “special conditions” or
    “gang conditions.”
    The court agreed that the September 2021 oral ruling imposing the special gang-related
    probation conditions was not incorporated into the 2021 revocation sentencing orders, stating
    that “it didn’t find its way into the order. It didn’t. It’s not there.” Nevertheless, the court found
    that the oral ruling imposed enforceable probation conditions without a written court order,
    stating, “I don’t think [the oral ruling] has to be in the order” and that Watts had “violated the
    oral order that . . . [the circuit court] intended to enter.”
    The court also found that Watts had violated the written sentencing orders because it
    found that the sentence in the order directing Watts to “comply with all the rules and
    requirements set by the probation officer” referred to special gang-related probation conditions.
    -6-
    The court stated, “He has violated the order, the written order that was entered because it says he
    is supposed to follow all instructions of probation, and that included special gang instructions.”
    Based on these findings, the circuit court concluded that Watts’s probation violation was not a
    technical violation subject to the sentencing limitations in Code § 19.2-306.1. The court stated,
    “His violation of the special instructions for confirmed gang members is not a technical violation
    as set forth in the statute.” The court, therefore, found that “the fourteen-day limit does not
    apply” and that “the appropriate guidelines are the ones that call for zero to six months of active
    time.”
    The circuit court revoked Watts’s four-year suspended sentence on the malicious
    wounding conviction and imposed a sentence of incarceration for four years, with one year
    suspended. Watts then timely appealed the circuit court’s judgment.
    II. Appellate Proceedings and En Banc Petition
    On appeal, a split three-judge panel of this Court reversed the circuit court’s judgment.
    The panel majority found that the 2021 revocation sentencing orders did not incorporate any
    gang-related prohibitions. In so finding, we noted that the circuit court had interpreted the
    written sentencing orders to exclude the oral ruling. We also held that the circuit court had erred
    in finding that the oral ruling had imposed enforceable probation conditions independently of a
    written court order.
    Because we found that Watts’s violation of the special gang-related probation conditions
    was a failure to follow the instructions of the probation officer rather than a direct court order,
    we held that the violation was technical in character and subject to the sentencing limitations in
    Code § 19.2-306.1(C). We consequently reversed the circuit court’s judgment, vacated the
    -7-
    revocation sentencing order,4 and remanded to the circuit court for resentencing in accordance
    with our opinion and Code § 19.2-306.1(C).
    On April 2, 2024, the Commonwealth filed a petition requesting that this Court set aside
    the panel’s judgment and grant a rehearing of the case en banc. On April 23, 2024, this Court
    granted the Commonwealth’s petition pursuant to Rule 5A:35, reinstated the appeal of the issues
    raised in the petition, and stayed the panel’s judgment pending a rehearing en banc. The full
    Court heard this case on July 30, 2024.
    ANALYSIS
    On appellate review of the circuit court’s revocation of a defendant’s probation and
    suspended sentence, “[t]he evidence is considered in the light most favorable to the Commonwealth,
    as the prevailing party below.” Jacobs v. Commonwealth, 
    61 Va. App. 529
    , 535 (2013). “[T]he
    trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of
    abuse of discretion.’” 
    Id.
     (quoting Davis v. Commonwealth, 
    12 Va. App. 81
    , 86 (1991)). A
    “[circuit] court by definition abuses its discretion when it makes an error of law.” Porter v.
    Commonwealth, 
    276 Va. 203
    , 260 (2008) (alteration in original). “To the extent that appellant’s
    assignment of error raises a question of statutory interpretation, that question is reviewed de novo on
    appeal.” Jacobs, 
    61 Va. App. at 535
    . But we give deference to the circuit court’s interpretation of
    its own orders, if reasonable. See Hodgins v. Commonwealth, 
    61 Va. App. 102
    , 108 (2012); Roe v.
    Commonwealth, 
    271 Va. 453
    , 457-58 (2006). “We apply an abuse of discretion standard in
    determining whether the circuit court’s interpretation of its order is reasonable.” Roe, 271 Va. at
    458.
    4
    In Circuit Court Case No. CR16000356-02, the court sentenced Watts to a term of four
    years with one year suspended.
    -8-
    In its petition for rehearing en banc, the Commonwealth argued that the panel erred by not
    deferring to the circuit court’s reasonable interpretation of the 2021 revocation sentencing orders to
    include the special gang-related probation conditions. We find that the special conditions were not
    incorporated into the written orders and that Watts’s violation of the conditions was a technical
    violation under Code § 19.2-306.1. Because we would find that the absence of the gang-related
    prohibitions from the written orders did not result from an inadvertent clerical mistake or oversight,
    we would further hold that Code § 8.01-428(B) does not permit the circuit court to correct the
    omission.
    Accordingly, this Court reverses the circuit court’s judgment, vacates the revocation
    sentencing order,5 and remands to the circuit court for resentencing. We would further decline to
    grant the circuit court leave to modify its order and instead direct the circuit court to resentence
    Watts consistent with this opinion and in accordance with Code § 19.2-306.1(C).
    I. The circuit court did not reasonably interpret the 2021 revocation sentencing orders to include the
    special gang-related probation conditions.
    A. The circuit court did not interpret the written orders to incorporate the 2021 oral ruling.
    The Commonwealth argues that the circuit court reasonably interpreted the 2021 revocation
    sentencing orders to include the court’s 2021 oral ruling imposing gang-related prohibitions on
    Watts. On the contrary, the record shows that the circuit court interpreted the written orders and
    concluded that they did not contain the oral ruling. The circuit court’s statements in the record
    reflect that the court agreed with Watts that the oral ruling had never been incorporated into the
    5
    Circuit Court Case No. CR16000356-02.
    -9-
    written sentencing orders at all but ruled nevertheless that it imposed a probation condition that
    could be given effect independently of the written orders.6
    In reviewing the language of the 2021 revocation sentencing orders, the circuit court noted
    that they contained no words expressly communicating “special conditions” or “gang conditions.”
    The circuit court openly admitted that the oral pronouncement “did not make its way into the order.
    It didn’t. It’s not there.” In spite of this, the circuit court opined that the oral instruction did not
    “need to be in the order” to impose an enforceable probation condition. The court stated that the
    oral pronouncement expressed a clear intention on the part of the court to impose the special
    gang-related probation conditions and concluded that Watts had “violated the oral order that . . . [the
    court] intended to enter.”
    As the circuit court acknowledged, the written orders contained no language expressly
    incorporating the 2021 oral pronouncement. The language of the orders contained no reference to
    either the oral instruction on its own or to the transcript of the September 2021 revocation hearing
    where the oral ruling was made. The circuit court’s finding that the oral pronouncement may be
    given effect without a written court order contravenes “the firmly established law of this
    Commonwealth that a trial court speaks only through its written orders.” Walton v. Commonwealth,
    
    256 Va. 85
    , 94 (1998) (quoting Davis v. Mullins, 
    251 Va. 141
    , 148 (1996)). Additionally, “[t]he
    subjective intentions of a judge upon entering a written order cannot change its character or legal
    6
    The Commonwealth argued that the circuit court had identified two “textual anchors” in
    the sentencing orders that incorporated the oral instruction. First, the Commonwealth argued
    that the sentence directing Watts to continue probation “under the same terms and conditions as
    previously ordered” incorporated the oral ruling. Second, the Commonwealth contended that the
    sentence requiring Watts to comply with “all rules and requirements set by the probation officer”
    also incorporated the ruling.
    Because we find that the circuit court did not interpret the orders to include the oral ruling
    at all, we will not address these arguments. See Taylor v. Commonwealth, 
    78 Va. App. 147
    , 157
    (2023) (holding that the “doctrine of judicial restraint dictates that we decide cases on the . . .
    narrowest grounds available”).
    - 10 -
    efficacy.” Dir. of the Dep’t of Corr. v. Kozich, 
    290 Va. 502
    , 511 (2015). Because the record shows
    that the circuit court interpreted the written sentencing orders to exclude the oral pronouncement,
    we find that this ruling was not part of the written orders and did not impose an enforceable
    probation condition.
    B. The circuit court’s interpretation of the written orders to incorporate the special gang-related
    probation conditions was unreasonable.
    After agreeing that the oral ruling was not incorporated into the 2021 revocation sentencing
    orders, the circuit court stated that Watts had nevertheless violated the written orders because it
    found that the directive in the orders to “comply with all rules and requirements set by the probation
    officer” incorporated the special gang-related probation conditions. We hold that the court’s finding
    was an unreasonable interpretation of the written orders and, therefore, will not defer to the court’s
    interpretation.
    “Although trial courts have discretion to interpret their own orders, that discretion must be
    exercised reasonably and not arbitrarily or capriciously.” Smoot v. Commonwealth, 
    37 Va. App. 495
    , 500 (2002) (citing Rusty’s Welding Serv. v. Gibson, 
    29 Va. App. 119
    , 130 (1999)).
    “Furthermore, an order must be interpreted within its four corners.” 
    Id.
     (citing United States v.
    Armour & Co., 
    402 U.S. 673
    , 682 (1971)).
    An incorporation by reference of one document into another “must be clear, full, and
    definite and must be expressly done.” United States v. Stevenson, 
    832 F.3d 412
    , 425 (3d Cir. 2016)
    (quoting 11A Cyc. of Fed. Proc. § 42:105 (3d ed.)). “To incorporate material by reference, the host
    document must identify with detailed particularity what specific material it incorporates and clearly
    indicate where the material is found in the various documents.” Advanced Display Sys., Inc. v. Kent
    State Univ., 
    212 F.3d 1272
    , 1282 (Fed. Cir. 2000).
    Virginia courts have regularly demonstrated this principle. In Fredericksburg Construction
    Co. v. J.W. Wyne Excavating, Inc., 
    260 Va. 137
    , 144 (2000), for example, the Virginia Supreme
    - 11 -
    Court held that a circuit court had effectively incorporated a motion to withdraw into the court’s
    order granting the motion because the order contained language specifically referencing the “motion
    to withdraw.” Similarly, this Court found in Heiderscheidt v. Commonwealth, No. 1298-08-4, slip
    op. at 2, 5-6, 
    2009 Va. App. LEXIS 256
    , at *2-3, *7 (June 9, 2009),7 that a circuit court had
    effectively incorporated the court’s standing order imposing additional terms and conditions of
    probation into its sentencing order by directing the defendant to “comply with all of the terms
    and conditions of probation as set forth in the order of this Court entered on June 22, 1995, in
    Miscellaneous Order Book 5, page 1769.”
    The out-of-state cases cited in Judge Fulton’s dissent do not stand for the contrary
    proposition. See infra at 41 (citing State ex re. Moore v. Munchmeyer, 
    197 S.E.2d 648
     (W. Va.
    1973), and Beecher v. Foster, 
    66 S.E. 643
     (W. Va. 1907)). In Munchmeyer, the appellant
    challenged the juvenile court’s order because the order failed to contain an adjudication that the
    infants were neglected. 197 S.E.2d at 651. The written order awarded custody of the children to
    the Department of Welfare and contained statements regarding the Department’s authority to
    deal with the infants but failed to include that the infants were neglected. Id. (“Having rendered
    its opinion upon the matters of law and fact, which opinion in writing is ORDERED filed, does
    further ADJUDGE and ORDER that the custody of the children named in the petition be, and the
    same is hereby, awarded to the [Department of Welfare] . . . .”). However, the court’s opinion,
    “incorporated in the order by reference,” highlighted the neglect element. Id. (emphasis added).
    The court found that the judge’s opinion, delivered at the time of the order, may be considered to
    explain the meaning of ambiguous or equivocal terms or language in the order. Id. at 653. The
    7
    “Although not binding precedent, unpublished opinions can be cited and considered for
    their persuasive value.” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 
    68 Va. App. 547
    , 568
    n.7 (2018) (quoting Otey v. Commonwealth, 
    61 Va. App. 346
    , 350 n.3 (2012)); see also Rule
    5A:1(f).
    - 12 -
    court held that a judgment is “sufficient although it does not contain specific adjudicatory
    language, if adjudicatory language is found in the opinion which is made part of the record by
    order.” 
    Id.
     (emphasis added).
    This case is readily distinguishable from Munchmeyer because the circuit court’s oral
    opinion was made part of the record by written order. Specifically, the West Virginia court
    highlighted the fact that the court’s opinion was incorporated by reference—“Having rendered its
    opinion upon the matters of law and fact which opinion in writing is ORDERED . . . .” Id. at
    651. Contrast that with this case—where the written sentencing order does not incorporate any
    oral rulings by reference. In construing a decree, a reviewing court will look to the intent of the
    issuing court, and sometimes provisions may accordingly be implied. The decree will be
    construed and restricted in accordance with the pleadings and even with reference to other parts
    of the record. The omission of any explicit language indicating the inclusion of the oral order
    cannot be read in concert with the record to include such provisions because it looks outside the
    four corners of the order to come to such a conclusion.
    Similarly, in Beecher, the issue was whether a lower court followed a mandate and
    opinion of the Supreme Court of Appeals in a former appeal. That case involved a dispute over a
    mortgage on a property in Ohio. 66 S.E. at 643-45. On appeal, the court was required to
    determine what matters were actually adjudicated on the former appeal. Id. at 645. The court, in
    determining the issue, needed to construe the language of the mandate and the opinion of the
    court to address the matter in controversy. Id. This was because the mandate did not specify an
    amount in controversy. This differs from the current issue because the current case seeks to
    impose an additional term as a non-technical violation, which carries different sentencing
    guidelines than a technical violation.
    - 13 -
    These cases are distinct from this case because they deal specifically with civil matters,
    whereas the implication from the lower court’s decision here directly affects an individual’s
    liberty.
    Additionally, even though there was a serious deprivation of a constitutional right, the
    distinction from Munchmeyer still holds because the parties were at least on notice that they
    would be litigating the issue. Here, the court unilaterally decided that the probation officer’s
    instructions for gang-related conditions were inapplicable and instead relied on the court’s oral
    opinion in finding that it was a “special condition” of Watts’s probation. In turn, this decision
    changed a 14-day incarceration to 3 years. Criminal sentencing needs to be examined with more
    scrutiny because the decision could deprive an individual of their freedom. Applying the
    reasoning in these out-of-state civil cases to a criminal sentencing is setting a dangerous
    precedent. Therefore, sentencing orders should be narrowly construed within the four corners of
    a written order to disallow additional terms from being included in sentencing decisions.
    Here, the circuit court suggested that the 2021 revocation sentencing orders incorporated by
    reference the 2019 special gang document that Watts had signed at his probation officer’s direction.
    The court stated that Watts had violated the written court orders “because it says he is supposed to
    follow all instructions of probation and that included special gang instructions.” However, the
    directive in the order to “comply with all the rules and requirements set by the probation officer”
    does not specifically refer to the 2019 special gang document, identify or name the document with
    particularity, or point to the location where the document could be found.
    The evidence shows that no document containing special gang-related probation conditions
    existed in the record at the time the circuit court issued the 2021 revocation sentencing orders.
    Although Watts had received and signed the 2019 special gang document before the 2021
    revocation hearing, that document was never entered into the record of the proceedings. The only
    - 14 -
    reference to the document in the record is the description of the form in the January 2020 violation
    report. Additionally, the 2022 special gang document was not entered into the record until the
    second revocation hearing in July 2022. It does not appear from the record that the special gang
    document was before the circuit court at the time the court issued the September 2021 orders. There
    is, therefore, insufficient evidence supporting the notion that this document could have been
    incorporated by reference into those orders.
    Nor can the court reasonably interpret the orders’ directive to “comply with all the rules and
    requirements set by the probation officer” to expressly order compliance with special gang-related
    probation conditions. While courts may look outside the four corners of a written order to interpret
    an ambiguous finding contained therein,8 they may not inject substantive meaning into the order
    that it does not contain. Here, the circuit court’s attempt to interpret an absent requirement into the
    written sentencing orders goes beyond reasonable interpretation and amounts to rewriting the
    orders. The express language of the sentencing orders contains no gang-related prohibitions.
    Therefore, we will not defer to the circuit court’s interpretation of the orders to include this
    probation condition. As our colleagues who concur in this Court’s holding to reverse note, it
    “would have been an abuse of discretion here for the trial court to interpret the 2021 order to
    incorporate the gang-related association prohibition as a special condition.” Infra at 30.
    8
    The Commonwealth relies on this Court’s holdings in Anonymous B. v. Anonymous C.,
    
    51 Va. App. 657
     (2008), and Cellucci v. Commonwealth, 
    77 Va. App. 36
     (2023) (en banc), to
    argue that the circuit court may interpret an absent condition into a written order when the
    interpretation does not conflict with the record. But those cases are distinguishable. In
    Anonymous B., our Court held that a circuit court may look to statements from the bench to
    interpret a finding in a written order that was internally ambiguous. 
    51 Va. App. at 672
    .
    Likewise, in Cellucci, we held that a circuit court may use a letter opinion to explain the court’s
    rationale behind a finding in the written order that the defendant had “failed to prove any
    circumstance in mitigation of his offense.” 77 Va. App. at 52-53.
    Here, the circuit court did not merely look to the record for additional context to interpret
    an ambiguous finding or to explain the rationale through which the court arrived at a finding.
    Rather, it interpreted the order to impose a requirement not contained in the express language of
    the written order.
    - 15 -
    II. Code § 8.01-428(B) does not allow the trial court to retroactively insert a probation condition
    into a sentencing order.
    We dissent from Judge Raphael’s concurrence regarding instructions to the trial court on
    remand to consider whether the 2021 order should be amended nunc pro tunc under Code
    § 8.01-428(B) to incorporate a gang association special condition of probation. The presumption
    that a circuit court speaks only through its written orders can be rebutted by a record showing that a
    written order contains a clerical mistake or error due to oversight or inadvertent omission. Code
    § 8.01-428(B) permits the circuit court to correct such errors:
    Clerical mistakes. Clerical mistakes in all judgments or other parts
    of the record and errors therein arising from oversight or from an
    inadvertent omission may be corrected by the court at any time on
    its own initiative or upon the motion of any party and after such
    notice, as the court may order. During the pendency of an appeal,
    such mistakes may be corrected before the appeal is docketed in
    the appellate court, and thereafter while the appeal is pending such
    mistakes may be corrected with leave of the appellate court.
    (Emphases added). But a circuit court only has the power to correct the record under Code
    § 8.01-428(B) “when the record clearly supports such corrections.” Sch. Bd. of Lynchburg v.
    Caudill Rowlett Scott, 
    237 Va. 550
    , 555 (1989). Once an appeal is docketed, a circuit court may
    modify an order pursuant to the statute only if given leave to do so by the appellate court. See
    Code § 8.01-428(B). The appellate court may grant such leave sua sponte or at the request of a
    party. At no time did the Commonwealth formally request leave to modify, either at the circuit
    court or this Court, the 2021 revocation sentencing orders pursuant to Code § 8.01-428(B).
    However, during the en banc oral argument, members of this Court expressed a desire to extend
    a sua sponte invitation to grant the circuit court leave to modify the orders under Code
    § 8.01-428(B). For the reasons stated below, we decline such an invitation as modification of the
    orders is unauthorized under the statute.
    - 16 -
    Code § 8.01-428(B) permits a circuit court to correct a written order or other part of the
    record at any time before an appeal is docketed, even beyond the 21 days ordinarily permitted for
    modifying judgments under Rule 1:1. See Belew v. Commonwealth, 
    284 Va. 173
    , 177-78 (2012).
    However, the statute’s purpose is limited to giving circuit courts a mechanism to excise
    inadvertent clerical mistakes and oversights from the record and its written orders. Code
    § 8.01-428(B) does not extend the time limit in Rule 1:1 to modify a judgment for any reason.
    “[T]he purpose of a nunc pro tunc entry is to correct mistakes of the clerk or other court officials,
    or to settle defects or omissions in the record so as to make the record show what actually took
    place.” Council v. Commonwealth, 
    198 Va. 288
    , 293 (1956).
    The plain language of Code § 8.01-428(B) makes clear that the statute only applies where
    the error in the circuit court’s order arose from an “oversight or inadvertent omission” or
    “clerical mistake.” Virginia courts have declined to apply the statute where the record suggests
    that the omission did not result from an inadvertent clerical mistake or oversight. See Keough v.
    Pelleieri, No. 0914-95-4, slip op. at 4, 
    1995 Va. App. LEXIS 801
    , at *5 (Oct. 31, 1995); Dorn v.
    Dorn, 
    222 Va. 288
    , 291 (1981); Minor v. Commonwealth, 
    66 Va. App. 728
    , 740 (2016). In
    Keough v. Pelletieri, for instance, this Court held that a circuit court may not modify a consent
    order to add a provision adjusting the wife’s share of her husband’s military pension because the
    evidence in the record showed that the wife’s attorney had deliberately omitted that provision
    from the order at the request of the husband’s attorney. Slip. op. at 2-5, 
    1995 Va. App. LEXIS 801
    , at *3-6. In holding that the order may not be modified, this Court noted, “the evidence
    demonstrates that the modification to the consent decree was not an act of oversight or
    inadvertent omission as required under Code § 8.01-428(B) but was instead a deliberate
    revision.” Id. at 4-5, 
    1995 Va. App. LEXIS 801
    , at *5-6.
    - 17 -
    At the en banc oral argument, a member of this Court raised the question of whether the
    Virginia Supreme Court’s opinion in Dorn v. Dorn in support of the argument that Code
    § 8.01-428(B) is applicable. In that case, the Supreme Court permitted a circuit court to modify
    a divorce decree to correct a provision of the order requiring “bi-weekly” child support payments
    after the Court found that this provision resulted from an unintended drafting error in the parties’
    stipulation agreement which was later incorporated into the court’s decree. 
    222 Va. at 291
    . The
    Virginia Supreme Court held that circuit courts may apply Code § 8.01-428(B) to modify an
    order “in the rare situation” where the evidence in the record clearly supports the finding of a
    clerical mistake or oversight covered by the statute. Id. at 292. See also Minor, 
    66 Va. App. at 741
     (holding that the statute permitted a circuit court to modify its sentencing order to add a case
    reference which was omitted from the original order due to a clerical oversight).
    But the origins of the circuit court’s error here are clearly distinguishable from those in
    Dorn. While the evidence in Dorn supported a finding that the error in the court’s decree
    resulted from an unintentional drafting mistake of the parties, the record here strongly suggests
    that the circuit court’s continued omission of the special gang-related probation conditions from
    the 2021 revocation sentencing orders arose not from an inadvertent clerical mistake or oversight
    but from a mistake of law.
    In reviewing the 2021 revocation sentencing orders, the circuit court stated that Watts had
    “violated the oral order that [the court] intended to enter” and “the written order that was entered
    because it says he is supposed to follow all instructions of probation, and that included special
    gang instructions.” Given the assumptions expressed here, we can infer that the circuit court
    would have considered it unnecessary to add language expressly incorporating the court’s oral
    ruling because the court believed this ruling could be given effect independently of a written
    court order. It leads to the reasonable conclusion that the court would have considered it
    - 18 -
    unnecessary to add language expressly incorporating the 2019 special gang document or to
    amend the record of the 2021 revocation proceedings to include the document because the court
    believed that this document was already incorporated into the written orders. Likewise, it is
    apparent that the court did not modify the language of the orders to expressly order compliance
    with the special gang-related probation conditions because it believed the language was already
    sufficient to order such compliance.
    Further, the circuit court had multiple opportunities to modify the 2021 revocation
    sentencing orders to include the special gang-related probation conditions but chose not to do so.
    This leads us to conclude that the omission was not merely an oversight or inadvertent mistake.
    Between the time the orders were issued in September 2021 and the appeal of this case was
    docketed in October 2022,9 the circuit court took no action to modify the orders. At the 2022
    revocation hearing, the court read a portion of its previous oral ruling into the record but did not
    modify the orders to incorporate the oral ruling. At the same hearing, it admitted the 2022
    special gang document into evidence but did not amend the record to also include the 2019
    special gang document or add language to the previous sentencing orders to expressly
    incorporate this document. The court also did not at any time add language to the orders
    expressly imposing special gang-related probation conditions.
    Code § 8.01-428(B) empowers trial courts to amend their orders to correct clerical errors
    “arising from oversight” or “inadvertent omission[s].” This power to amend clerical errors does
    not extend to looking back to a years-old order and make it seem that the court took action that,
    with the benefit of hindsight, the trial court wished it had taken. In Hackett v. Commonwealth,
    
    293 Va. 392
    , 401 (2017), the Court held that the trial court did not have the authority to amend
    9
    Pursuant to Rule 5A:10(e), this Court acknowledged receipt of the record of this case
    from the circuit court on October 14, 2022.
    - 19 -
    its conviction and sentencing orders because neither the conviction nor the sentencing orders
    were modified, vacated, or suspended within 21 days. The Court has explained:
    The purpose of a nunc pro tunc order entry is to correct mistakes of
    the clerk or other court officials, or to settle defects or omissions in
    the record so as to make the record show what actually took place.
    It is not the function of such entry by a fiction to antedate the
    actual performance of an act which never occurred, to represent an
    event as occurring at a date prior to the time of the actual event, or
    to make the record show that which never existed.
    
    Id. at 400
    ; see also Adams v. Lee, 
    110 Va. Cir. 297
    , 299 (Chesapeake, Sept. 14, 2022). Hackett
    presented the argument that the case be resolved by entering a nunc pro tunc order under the
    theory that there was a scrivener’s error in the conviction and sentencing order. 
    293 Va. at 400
    .
    The judge stated on the record, “It’s not a scrivener’s error. I mean this is exactly what was
    agreed to be done and what was supposed to be done and what I did. There is no scrivener’s
    error in that.” 
    Id.
     The Court found that the orders reflected the actions the trial court intended to
    take when those orders were entered. 
    Id.
     Code § 8.01-428(B) allows the court to “correct[] the
    record . . . under the accepted fiction that the order relates back to the date of the original action
    of the court ‘now for then.’” Roane v. Commonwealth, No. 0032-23-1, slip op. at 15, 
    2024 Va. App. LEXIS 198
    , at *21 (Apr. 29, 2024). The court is not permitted to “use this authority to
    take action that it intended to take but did not and may merely wish in hindsight it had taken.”
    Id. at 16, 
    2024 Va. App. LEXIS 198
    , at *21 (citing Davis v. Mullins, 
    251 Va. 141
    , 149-50
    (1996)). “A nunc pro tunc entry should not be made . . . to show what the court should have
    done as distinguished from what actually occurred. The court’s authority . . . extends no further
    than the power to make the record entry speak the truth.” Bynum v. Commonwealth, No.
    1730-23-3, slip op. at 3, 
    2023 Va. App. LEXIS 375
    , at *4 (June 6, 2023) (alterations in original)
    (quoting Council, 198 Va. at 292).
    - 20 -
    Compare the limited uses of nunc pro tunc orders in case law to the two cases that our
    colleagues say stand for the proposition that courts can use Code § 8.01-428(B) to correct
    “significant errors” in a years-old sentencing order. See infra at 32-33 (citing Harris v.
    Commonwealth, 
    222 Va. 205
     (1981), and Minor v. Commonwealth, 
    66 Va. App. 728
     (2016)).
    First, in Harris, the trial court used a nunc pro tunc order to fix an omission in an order reflecting
    that a juvenile could be tried as an adult. See 222 Va. at 211 (“[T]he nunc pro tunc entry was
    proper, and the statutory directive that an order be entered advising the Commonwealth’s
    Attorney that he may seek an indictment was fulfilled.”). The trial court entered the nunc pro
    tunc order to certify the court’s previous ruling, allowing the defendant to be tried as an adult.
    Id. at 208. But because of the Commonwealth Attorney’s failure to timely file an order as
    directed, that order was not “memorialize[d]” in writing. Id. at 210 (“Manifestly, the nonentry of
    a timely order was caused by the prosecutor’s failure to follow directions. That mistake was
    compounded by the failure of defense counsel to return the order either to the court or the
    prosecutor.”). Unlike here, Harris involved a modification to enter an order reflecting the
    court’s ruling at the hearing.
    Next, in Minor, the appellant pleaded “guilty to, was convicted of, and sentenced for, a
    rape of a child.” 
    66 Va. App. at 741
    . His plea was supported with a written plea agreement. See
    
    id. at 733-34
     (“[A]ppellant appeared before the trial court and entered the guilty pleas specified
    in the written plea agreement.”). While the sentencing order correctly stated Minor’s total
    sentence, it did not reflect his sentence for that particular offense. 
    Id. at 735-36
    . The trial court
    entered a nunc pro tunc order so that the sentencing order accurately reflected all of Minor’s
    sentencing. 
    Id. at 736
    . Again, unlike here, the nunc pro tunc order in Minor edited an order to
    reflect something that had occurred before the court—to which all parties agreed on the record.
    - 21 -
    No doubt Judge Raphael and the joining judges are correct that the modifications in
    Harris and Minor carried “significant” legal consequences. But allowing the court to include the
    oral “special condition” of probation, unlike the nunc pro tunc orders in Harris and Minor,
    would involve injecting new legal meaning into an order entered years ago—before the trial
    court had the benefit of our case law clarifying the meaning of Code § 19.2-306.1. Code
    § 8.01-428(B) does not enable a trial court to reassume jurisdiction over a case to change the
    legal import of one of its orders.
    A nunc pro tunc order is inappropriate because it asks the court to go back and alter an
    order so that the trial court can then make a subsequent ruling based on the changed record.
    Altering a written order to change a technical violation into a non-technical violation exceeds the
    purpose of a nunc pro tunc. Hackett, 
    293 Va. at 400
    . The 2022 court incorrectly found that its
    2021 oral pronouncement sufficiently incorporated the gang-related association conditions as a
    non-technical probation condition. But that was not a scrivener’s error—it was a legal ruling that
    the circuit court, with the benefit of “hindsight,” cannot change.
    To allow the court to go back and change its order broadens the term “clerical error”
    beyond any plausible reading. A “clerical error” is “[a]n error resulting from a minor mistake or
    inadvertence and not from judicial reasoning or determination; esp., a drafter’s or typist’s
    technical error that can be rectified without serious doubt about the correct reading.” Clerical
    Error, Black’s Law Dictionary (11th ed. 2019). The phrase “clerical error,” therefore, cannot be
    broadened to allow creating a new provision in a sentencing order—which Judge Raphael’s
    concurrence effectively admits is what is happening here. Infra at 30 (“It would likewise have
    been an abuse of discretion here for the trial court to interpret the 2021 order to incorporate the
    gang-association prohibition as a special condition. As the trial court candidly found, it’s just
    ‘not there.’”).
    - 22 -
    Because the court’s statements interpreting the 2021 revocation sentencing orders and
    lack of any subsequent action to modify them allow us to infer that the continued omission of the
    gang-related prohibitions was not an inadvertent clerical mistake or oversight as required by
    Code § 8.01-428(B), we would not grant the circuit court leave to modify the orders under the
    statute.
    III. The circuit court erred in ruling that Watts’s probation violation is a non-technical violation
    based on its finding that Watts had violated a “special condition” of probation.
    A. A violation of a “special condition” of probation is not necessarily a non-technical violation
    under Code § 19.2-306.1.
    The circuit court erroneously ruled that because Watts violated a “special condition” of
    probation, his probation violation was a non-technical violation under Code § 19.2-306.1. Upon
    finding that Watts violated a “special condition” of probation under the court’s 2021 oral ruling
    and the 2021 revocation sentencing orders, the circuit court ruled that “therefore[,] his violation
    of the special instructions for confirmed gang members is not a technical violation as set forth in
    the statute.” Consequently, the court ruled that the “fourteen-day limit” for a second technical
    violation “did not apply” and that the “appropriate guidelines are the ones that call for zero to six
    months of active time.”
    After the circuit court sentenced Watts for a non-technical probation violation, this Court
    issued its opinion in Delaune v. Commonwealth, 
    76 Va. App. 372
    , aff’d, 
    302 Va. 644
     (2023),
    rejecting the contention that a violation of any “special condition” of probation is a non-technical
    violation for purposes of sentencing under Code § 19.2-306.1. See id. at 382-83. As explained in
    Delaune, the sentencing limits for first and second technical probation violations apply if the
    violation is based on conduct defined as a “technical violation” in the ten technical violations
    enumerated in Code § 19.2-306.1(A). Id.
    - 23 -
    In Delaune, the defendant’s suspended sentence was revoked based, in part, on the
    defendant’s use of controlled substances. The sentencing order that placed Delaune on supervised
    probation required her to “be drug-free” as a condition of the probation and suspended sentence.
    The trial court ruled that Delaune’s probation violation was a special, non-technical violation
    because her drug use violated a special condition of probation imposed in the sentencing order. In
    reversing this ruling, this Court held that “[w]hen the violation conduct matches the conduct listed
    in Code § 19.2-306.1(A), it is, by definition, a “technical violation.” Delaune, 76 Va. App. at 383.
    Delaune’s drug use was a technical violation because clause (vii) of Code § 19.2-306.1(A)
    defines “technical violation” to include a probationer’s failure to “refrain from the use,
    possession, or distribution of controlled substances.” Therefore, whether or not a condition of
    probation is labeled a “special condition” or included in the sentencing order as a condition of the
    suspended sentence, a violation of the condition is a technical violation under Code § 19.2-306.1 if
    the violation is based on the probationer’s failure to comply with any of the ten requirements set
    forth in Code § 19.2-306.1(A).
    At the time the circuit court sentenced Watts for a non-technical violation of probation,
    this Court had not yet issued our opinion in Delaune. The circuit court, therefore, rendered its
    judgment in the absence of any guidance from appellate courts on the issue of how Code
    § 19.2-306.1 should be applied to determine whether a violation of probation is technical or
    non-technical under the statute. This Court’s holding in Delaune firmly establishes the principle
    that a violation of a probation condition is technical where the probationer’s underlying violation
    conduct matches conduct enumerated in Code § 19.2-306.1(A), regardless of the label that a
    circuit court chooses to attach to the condition. We now apply the principle outlined in Delaune
    to determine the character of Watts’s probation violation.
    - 24 -
    B. Both Watts’s probation violations are technical violations under Code § 19.2-306.1.
    Watts’s failure to report as instructed for three scheduled meetings with his probation officer
    is a technical violation because clause (v) of Code § 19.2-306.1(A) defines “technical violation” as
    “a violation based on the probationer’s failure to . . . report as instructed” to the probation officer.
    See Code § 19.2-306.1(A). Likewise, Watts’s failure to follow his probation officer’s instructions to
    refrain from gang involvement is a technical violation because clause (v) of Code § 19.2-306.1(A)
    also defines “technical violation” as “a violation based on the probationer’s failure to . . . follow the
    instructions of the probation officer.” Because Watts’s violation conduct “matches the conduct
    listed in Code § 19.2-306.1(A), it is, by definition, a “technical violation.” Delaune, 76 Va. App. at
    383.
    To determine whether, for purposes of Code § 19.2-306.1, a probationer’s violation
    conduct is appropriately described as a failure to follow the instructions of the probation officer,
    we must determine whether the probation officer’s instructions relate to a court-ordered
    condition of the probationer’s suspended sentence and probation. When a probationer fails to
    comply with a court-ordered probation condition to do or refrain from doing specified conduct
    that “does not fall within any of the ten enumerated technical violations under Code
    § 19.2-306.1(A),” the violation conduct is a “failure to follow the instructions of the court.” See
    Burford v. Commonwealth, 
    78 Va. App. 170
    , 183-84 (2023) (emphases added) (holding that a
    probationer’s failure to complete a recommended psychosexual evaluation was a non-technical
    violation under Code § 19.2-306.1 because the recommendation was tied to a direct court order
    requiring him to complete a mental health evaluation and to “follow all recommendations”
    related to the evaluation).
    Further, this Court’s, sitting en banc, recent holding in Shifflett v. Commonwealth, 
    81 Va. App. 277
     (2024) (en banc), reaffirms the principle that we look to the language of the written
    - 25 -
    sentencing order to determine whether a probation violation is technical or non-technical. 
    Id. at 296-97
    . Shifflett held that the probationer had committed a non-technical violation by failing to
    complete a sex offender treatment program that his probation officer had directed him to
    complete because it found that the sentencing order contained a requirement that the probationer
    complete such a program. 
    Id.
     Based on this finding, the Court in Shifflett concluded that the
    probationer’s failure to complete the program was a violation of a direct court order and not
    merely a failure to follow his probation officer’s instruction and that, therefore, the probationer’s
    conduct constituted a non-technical violation under Code § 19.2-306.1. Id. at 295-96, 297.
    The circuit court sentenced Watts to a period of active incarceration that exceeds the
    statutory maximum sentence for a second technical violation of probation. Under Code
    § 19.2-306.1(C), there is “a presumption against imposing a sentence of a term of active
    incarceration for any second technical violation” of probation. Code § 19.2-306.1(C).
    “However, if the court finds, by a preponderance of the evidence, that the 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. (emphasis added). The circuit court exceeded this limit by
    imposing a sentence of active incarceration for three years. Because the circuit court unlawfully
    imposed a sentence of active incarceration that exceeds the statutory maximum sentence for a
    second technical probation violation, Watts must, therefore, be resentenced as required by the
    sentencing limitations set forth in Code § 19.2-306.1(C).
    - 26 -
    CONCLUSION
    We find that the circuit court did not interpret its own order to include written
    gang-related prohibitions. Nor do we find that such an interpretation would be reasonable.
    Therefore, this Court reverses the circuit court’s judgment and remands for resentencing.
    We would further hold that the gang-related conditions are the instruction of Watts’s
    probation officer and are technical conditions of his probation. Nor does Code § 8.01-428(B)
    enable the circuit court to reassume jurisdiction over the sentencing order to insert that
    gang-related condition as non-technical conditions of Watts’s probation. Under these
    circumstances, we would have our Court reverse the circuit court’s judgment, vacate the
    revocation sentencing order, and remand for resentencing subject to the limitations in Code
    § 19.2-306.1(C).10
    Reversed, vacated, and remanded.
    10
    Circuit Court Case No. CR16000356-02.
    - 27 -
    Raphael, J., with whom Athey, Malveaux, Lorish and Frucci, JJ., join, in reversing and with
    respect to instructions to the trial court on remand. 11
    No one disputes that a condition of Watts’s supervised probation under the 2021
    sentencing order signed by Judge Sandwich was that he refrain from associating with known
    gang members. Watts admits that he violated that condition. The question is whether the
    prohibition on gang association was a “special condition” or a condition required only by the
    probation officer. If it was the latter, all agree that Watts committed only a “technical violation”
    for which Code § 19.2-306.1 would cap his sentence at 14 days. If it was a special-condition
    violation, by contrast, then the trial court did not abuse its discretion in revoking Watts’s
    suspended sentence and reimposing four years with one suspended.
    I.
    I agree with the conclusion in Part I of the analysis in Judge Chaney’s plurality opinion
    that the trial court’s 2021 order cannot reasonably be interpreted to include a prohibition on gang
    association as a special condition expressly ordered by the court. While it is “well-established
    . . . that circuit courts have the authority to interpret their own orders,” the “interpretation must
    be reasonable.” Roe v. Commonwealth, 
    271 Va. 453
    , 457-58 (2006). The abuse-of-discretion
    standard applies “in determining whether the circuit court’s interpretation of its order is
    reasonable.” Id. at 458.
    The trial court below did not purport to “interpret” any text of the 2021 order to include
    the gang-prohibition as a special condition. Although the trial court found that “[i]t was clearly
    the intent of Judge Sandwich” to impose a special condition, that language “didn’t find its way
    into the order . . . . It’s not there.” The trial court at one point said that Watts “violated the oral
    As set forth in Judge Chaney’s plurality opinion, Judges Chaney, Huff, Ortiz, Causey,
    11
    Friedman and Callins dissent with respect to the Court’s instructions on remand.
    - 28 -
    order that . . . Judge Sandwich intended to enter.” (Emphasis added.) But that is quite different
    from finding it incorporated by reference through the text of the written order itself.
    The dissent concludes that the trial court reasonably found the special condition
    incorporated by provisions in the sentencing order that Watts was “placed on probation ‘under
    the same terms and conditions as previously ordered’” and “‘must comply with all the rules and
    requirements set by the probation officer.’” Infra at 41. But nothing in the transcript of the
    revocation hearing shows that the trial court interpreted that language as incorporating the
    special condition. On its face, that language simply defers to the probation officer to set the rules
    and requirements of probation. Indeed, the trial court said, “I don’t think [the special condition]
    has to be in the order. Because the [probation] guidelines themselves provide a special gang
    member condition instruction.” (Emphasis added.)
    Assuming for argument’s sake that the trial court had said it was interpreting the text of
    the 2021 order to incorporate the prohibition on gang association as a special condition, that
    would have been an unreasonable interpretation and therefore an abuse of discretion under Roe.
    There is simply no textual anchor in the order that could reasonably support that interpretation.
    In Roe, the Supreme Court held that this Court erred by failing to find an abuse of
    discretion in the trial court’s interpretation of its prior order. 271 Va. at 458-59. The trial court
    there had interpreted an unqualified order dismissing criminal charges as an order merely nolle
    prossing them. Id. at 456-57. But a dismissal and a nolle pros “are separate and distinct
    procedures.” Id. at 458. A nolle pros may be entered “only in the discretion of the court, upon
    motion of the Commonwealth with good cause therefor shown.” Id. (quoting Code
    § 19.2-265.3). By contrast, “[a] dismissal at the request of the Commonwealth does not require a
    showing of good cause.” Id. Thus, the trial court abused its discretion by interpreting its prior
    order as a nolle pros, rather than a dismissal with prejudice. Id.
    - 29 -
    It would likewise have been an abuse of discretion here for the trial court to interpret the
    2021 order to incorporate the gang-association prohibition as a special condition. As the trial
    court candidly found, it’s just “not there.”
    We granted en banc review here to determine whether the trial court abused its discretion
    by interpreting the 2021 order to incorporate the prohibition on gang affiliation as a special
    condition. Because I agree with the plurality that the trial court erred in doing so, I join in the
    judgment to vacate Watts’s sentencing and to remand for further proceedings.
    II.
    Still, I disagree with the plurality about the instructions to the trial court on remand. The
    plurality would direct the trial court to treat Watts’s violation as a second technical violation,
    thereby capping the trial court’s authority to sentence Watts to no more than 14 days in jail.
    Given the trial court’s conclusion that Judge Sandwich clearly intended to impose the gang
    prohibition as a special condition, I would instead permit the trial court on remand to consider
    whether the 2021 order should be amended nunc pro tunc under Code § 8.01-428(B) to
    incorporate that special condition.12
    That code section provides a narrow but well-recognized “exception” to the normal
    requirement under Rule 1:1 that a trial court loses jurisdiction to alter a final order 21 days after
    its entry. Davis v. Mullins, 
    251 Va. 141
    , 149 (1996). Nearly 70 years ago,
    12
    Code § 8.01-428 provides:
    B. Clerical mistakes. Clerical mistakes in all judgments or other
    parts of the record and errors therein arising from oversight or
    from an inadvertent omission may be corrected by the court at any
    time on its own initiative or upon the motion of any party and after
    such notice, as the court may order. During the pendency of an
    appeal, such mistakes may be corrected before the appeal is
    docketed in the appellate court, and thereafter while the appeal is
    pending such mistakes may be corrected with leave of the appellate
    court.
    - 30 -
    in Council v. Commonwealth, 
    198 Va. 288
    , 292 (1956), [our
    Supreme Court] adopted the majority view that the trial court has
    the inherent power, independent of statutory authority, to correct
    errors in the record so as to cause its acts and proceedings to be set
    forth correctly . . . . [T]he court has the inherent power,
    independent of the statute, upon any competent evidence, to make
    the record “speak the truth.”
    
    Id.
     (quoting Netzer v. Reynolds, 
    231 Va. 444
    , 449 (1986)). Code § 8.01-428(B) simply codifies
    that power.
    “When acting nunc pro tunc, the court does not reacquire jurisdiction over the case.” Id.
    Instead, “the trial court merely corrects the record by entry of an order nunc pro tunc, under the
    accepted fiction that the order relates back to the date of the original action of the court ‘now for
    then.’” Id. The power is “restricted to placing upon the record evidence of judicial action [that]
    has actually been taken, and presupposes action taken at the proper time.” Id. (quoting Council,
    198 Va. at 292). But the power must be “narrowly construed and applied.” Id.
    For instance, in Dorn v. Dorn, 
    222 Va. 288
     (1981), the Court held that the trial court erred
    in concluding that the finality of the final divorce decree under Rule 1:1 precluded it from
    considering whether the decree should be corrected. Although the decree set husband’s child-
    support obligation at $100 per child “per month,” wife claimed it should have been $100 per
    child “bi-weekly.” 
    Id. at 291-92
    . The parties’ stipulation showed agreement that support should
    be paid “bi-weekly,” and that interpretation was supported by the attorney who drafted it. 
    Id. at 290
    . The Court reversed the trial court’s judgment and remanded the case “for further
    proceedings to determine whether the evidence clearly support[ed] the husband’s claim that the
    separation agreement and divorce decrees contained a mutually unintended drafting error.” 
    Id. at 292
    . The Court said that “Code § 8.01-428(B) . . . gives courts the authority to enter nunc pro
    tunc orders . . . where the evidence clearly supports the conclusion that an error covered by Code
    § 8.01-428(B) has been made.” Id. The Court added that Rule 1:1 “was not intended to limit,
    - 31 -
    and in fact could not limit, the trial court’s statutory authority to correct clerical errors in the
    judgment or errors ‘therein arising from oversight or from an inadvertent omission . . . at any
    time.’” Id. at 291 (quoting Code § 8.01-428(B).
    The plurality would distinguish Dorn on the ground that the trial court’s error here was “a
    mistake of law.” Supra at 18. But our jurisprudence has not recognized any “mistake of law”
    exception to the power of a trial court to “make the record ‘speak the truth.’” Davis, 
    251 Va. at 149
     (quoting Netzer, 
    231 Va. at 449
    ). It is also dangerous to suggest such an exception. When
    we discover legal errors in criminal sentencing orders, we routinely remand the case for the error
    to be corrected under Code § 8.01-428(B),13 or for the trial court to consider whether an error
    exists that should be corrected.14 We should not compromise that practice by excusing such
    errors as mere legal mistakes by the trial court.
    Nunc pro tunc orders under Code § 8.01-428(B) have been used to correct a variety of
    significant errors and omissions in criminal cases. For example, in Harris v. Commonwealth,
    
    222 Va. 205
     (1981), the circuit court’s jurisdiction over the juvenile defendant depended on a
    timely order that he could be tried as an adult. Although the circuit court’s letter opinion made
    the requisite findings and directed the prosecutor to prepare the order “forthwith,” no order was
    entered within the 21 days required by statute due to the fault of both the prosecutor and the
    defense lawyer. 
    Id. at 210
    . The Supreme Court held that the circuit court properly entered a
    nunc pro tunc order to correct that omission. 
    Id. at 210-11
    . And in Minor v. Commonwealth, 66
    13
    See, e.g., Swezey v. Commonwealth, 
    77 Va. App. 809
    , 818, 820 (2023); Haefele v.
    Commonwealth, 
    75 Va. App. 591
    , 606 n.7 (2022); Bagley v. Commonwealth, 
    73 Va. App. 1
    , 30
    n.10 (2021); Stevens v. Commonwealth, 
    72 Va. App. 546
    , 560 n.5 (2020); Green v.
    Commonwealth, 
    72 Va. App. 193
    , 205 n.8 (2020); Meekins v. Commonwealth, 
    72 Va. App. 61
    ,
    64 n.1 (2020).
    14
    See, e.g., Nelson v. Commonwealth, 
    73 Va. App. 617
    , 628 & n.7 (2021); Jones v.
    Commonwealth, 
    70 Va. App. 307
    , 311 n.1 (2019) (en banc); Armstead v. Commonwealth, 
    56 Va. App. 569
    , 581 n.10 (2010).
    - 32 -
    Va. App. 728 (2016), we affirmed the use of a nunc pro tunc order to correct a final sentencing
    order that had failed to specify that the defendant had been convicted and sentenced to 20 years’
    imprisonment with 10 years suspended for raping a child. Id. at 735-36, 740-41.
    Permitting the trial court to correct the record to speak the truth does not conflict with the
    maxim that “a circuit court speaks only through its written orders.” Galiotos v. Galiotos, 
    300 Va. 1
    , 14 (2021). The Court in Rollins v. Bazile, 
    205 Va. 613
     (1964), distinguished “between the
    rendition of a judgment and its entry by the clerk on the records of the court.” 
    Id. at 617
    .
    “The rendition of a judgment is the judicial act of the court,
    whereas the entry of a judgment by the clerk on the records of the
    court is a ministerial, and not a judicial, act. The entry or
    recording of the instrument does not constitute an integral part of,
    and should not be confused with, the judgment itself.”
    Consequently, the judgment itself is not that which may be entered
    or recorded, but that which is considered and delivered by the
    court.
    
    Id.
     (quoting 30A Am. Jur., Judgments, § 94, p. 226).
    The Court applied that distinction in Jefferson v. Commonwealth, 
    269 Va. 136
     (2005), in
    the context of correcting an earlier sentencing order. When the defendant in Jefferson appeared
    at his probation-revocation hearing, the trial judge “realized [that] he had not signed the draft of
    the sentencing order that was lodged in the court file,” which had imposed a 20-year sentence
    with all but 6 months suspended. 
    Id. at 138
    . Although the defendant had served that time and
    his attorney did not dispute that the unsigned order “accurately set forth the proceedings as they
    occurred at the sentencing hearing,” he argued that the defendant’s probation could not be
    revoked under an unsigned order. 
    Id.
     The trial court overruled the objection and entered a new
    sentencing order nunc pro tunc to the date of the earlier sentencing hearing. 
    Id.
    In upholding that action, the Jefferson Court repeated that “[t]he rendition of a judgment
    duly pronounced is the judicial act of the court, and the entry or recording of the instrument
    memorializing the judgment ‘does not constitute an integral part of, and should not be confused
    - 33 -
    with, the judgment itself.’” 
    Id. at 139
     (quoting Rollins, 
    205 Va. at 617
    ). The Court added that
    correcting the record this way “does not affect the rule” that a court speaks only through its
    orders because that rule “does not purport to govern the substantive validity of the judicial act.”
    
    Id.
     Entering the nunc pro tunc order was proper under Code § 8.01-428(B) so the record would
    “speak[] the truth about what transpired at the sentencing hearing.” Id. at 140. Accord Lewis v.
    Commonwealth, 
    295 Va. 454
    , 465 (2018) (“Courts prefer written orders memorializing
    judgments in other cases for their evidentiary value, but they are not required when the judgment
    can be established by other proof.”).
    The same is true here. If, as the trial court found, Judge Sandwich had “clearly” made the
    prohibition on gang affiliation a special condition of probation, though that condition was
    omitted from the sentencing order, the trial court should have entered a nunc pro tunc order to
    correct it.15
    Though nothing in the record supports it, the parties at oral argument theorized about the
    possibility that Judge Sandwich may have changed his mind about imposing the special
    condition between when he pronounced sentence and when he signed the sentencing order. Of
    course, the trial court’s power to correct the record through a nunc pro tunc order “is restricted to
    placing upon the record evidence of judicial action that actually has been taken.” Jefferson, 269
    15
    Relatedly, our Court should be careful not to misconstrue the principle that “the scope
    of a consent decree must be discerned within its four corners,” United States v. Armour & Co.,
    
    402 U.S. 673
    , 681 (1971), as a general rule about how to interpret other judicial orders and
    decrees. As the Court in Armour explained, the four-corners principle applies to consent decrees
    because they are negotiated by parties with divergent interests. See 
    id. at 681-82
    . “Thus the
    decree itself cannot be said to have a purpose; rather the parties have purposes, generally
    opposed to each other . . . .” 
    Id. at 681
    . “[T]he basic import of Armour . . . is that, since consent
    decrees and orders have many of the attributes of ordinary contracts, they should be construed
    basically as contracts . . . .” United States v. ITT Continental Baking Co., 
    420 U.S. 223
    , 236
    (1975) (footnote omitted). Although dicta in Smoot v. Commonwealth, 
    37 Va. App. 495
    , 500
    (2002), quoted the four-corners phrase from Armour, the Smoot panel failed to distinguish
    between consent decrees and other judicial orders. We should be cautious not to extend Armour
    beyond its application to consent decrees.
    - 34 -
    Va. at 140. It cannot be used “to show what the court should have done as distinguished from
    what actually occurred.” 
    Id.
     (quoting Council, 198 Va. at 292). In light of the parties’ statements
    at oral argument here, the trial court should be permitted to consider the possibility that Judge
    Sandwich changed his mind about making the gang-affiliation prohibition a special condition.
    But if the trial court finds from the record before it that the condition was inadvertently omitted
    from the sentencing order, the trial court is empowered to correct it.16
    ***
    The trial court found that Judge Sandwich intended to include the special condition
    against gang affiliation in the 2021 sentencing order. But the court struggled to find the right
    vehicle to effectuate that intent. The correct vehicle was Code § 8.01-428(B). I agree with the
    plurality that this case should be reversed and remanded for resentencing. But the trial court is
    permitted on remand to consider whether to amend the 2021 sentencing order nunc pro tunc if
    necessary to make the order speak the truth about what happened at the 2021 sentencing hearing.
    16
    The remand is without prejudice to Watts’s ability to argue that it would deny him due
    process for the trial court to enter an order nunc pro tunc to correct the 2021 order to incorporate
    the special condition. It will be for the trial court to determine how such an objection, if made,
    should be resolved.
    - 35 -
    Fulton, J., with whom Decker, C.J., Beales, O’Brien and AtLee, JJ., join, dissenting
    from the decision to reverse and remand, but concurring in the decision to remand with
    instructions to consider whether clerical error exists.
    Because we believe that the appropriate disposition for this case would be to affirm the
    trial court on the grounds that the trial court’s interpretation of its own order was reasonable, we
    dissent to the plurality’s decision to reverse. However, recognizing the divergence in the two
    competing opinions—the plurality, which would reverse the trial court’s judgment with
    instructions to re-sentence Watts treating his violation as a second technical violation, and the
    concurrence, which would reverse with instructions to the trial court to review its September 14,
    2021 written order for a possible clerical omission pursuant to Code § 8.01-428—we also write
    separately to concur in part with the decision to remand for consideration under Code
    § 8.01-428. We agree that if the trial court’s judgment is to be reversed, then the appropriate
    disposition of this case would be to remand to the trial court with instructions to review for a
    possible clerical error, as explicated in the concurrence.17 We believe that if an appellate court
    reverses a trial court, a fundamental duty of that court is to provide adequate direction to the trial
    court regarding how to proceed—how to correct the error or end the case. Although we do not
    believe the trial court erred, we believe our Court should not leave the path forward unclear. It is
    unfair to the parties and the trial court to reverse a ruling and provide no direction. It appears
    that our colleagues in favor of reversal cannot agree or provide a majority view regarding what
    happens when the case is reversed. So, in an effort to resolve the matter for all involved, we feel
    compelled to offer our support for what we believe is the most reasonable, logical, and lawful
    way forward. We see a remand as described in the concurrence as an appropriate resolution
    despite our belief that the trial court’s interpretation of the order was reasonable. Because the
    17
    Given the unique circumstances of this case, namely that the trial court recognized an
    apparent material omission which, if confirmed, would accurately reflect a court-ordered special
    condition, we recognize that the remedy employed here should be of limited application.
    - 36 -
    concurring opinion has amply laid out the rationale regarding reversal and instruction to review
    for a clerical error, we do not address that analysis in this opinion. Instead, we write only to
    explicate the rationale behind our partial dissent.
    Because both the plurality and the concurrence amply lay out the facts and background
    here, we state only what we believe is necessary to further elucidate the unique contours of this
    case. This case arises from the trial court’s imposition of an active sentence of more than 14 days,
    following Rasheem Watts’s second probation violation. The violation at issue relates to Watts’s
    repeated failure to refrain from associating with members of a criminal street gang. Both parties
    agree that: (1) one of the conditions of Watts’s second period of probation was to refrain from such
    association; and (2) that Watts engaged in conduct that violated this prohibition. The parties
    disagree, however, as to: (1) the source of this condition; and (2) whether the violation was of a
    technical or non-technical nature, per Code § 19.2-306.1. Watts argues that the condition was
    imposed by his probation officer, making the prohibition an “instruction” from his probation officer
    pursuant to Code § 19.2-306.1(A)(v). In contrast, the Commonwealth argues that the trial court
    itself adopted the prohibition as a “special condition” of Watts’s second period of probation, making
    Watts’s violation a non-technical violation under Code § 19.2-306.1. Because we agree with the
    Commonwealth that the trial court adopted the prohibition at issue, we would hold that the
    condition was a special condition imposed by the trial court and that the violation at issue was non-
    technical in nature. Thus, we believe the trial court did not err by imposing an active period of
    incarceration greater than 14 days.
    - 37 -
    BACKGROUND
    After his initial conviction and subsequent release, Watts reported to this probation officer
    and signed a form entitled “Specialized Instruction for Validated Gang Members,” confirming his
    association with the “Rollin 40’s CRIPS” criminal street gang, and agreeing not to have any
    contact with members of this gang (the “gang-related prohibitions”). In January 2020, Watts’s
    probation officer filed a major violation report alleging that Watts had violated the terms of his
    probation, namely the gang-related prohibitions. In September of 2021, the trial court held a
    probation revocation hearing, ultimately finding that Watts had indeed violated the gang-related
    prohibitions. In finding Watts in violation and announcing his sentence, the trial court also
    orally pronounced that:
    I’m placing you back on supervised probation for a period of five
    years, like you were on before. I’m placing you on ten years of
    good behavior. I also specifically incorporate as a special
    condition of your probation all the gang related prohibitions that
    were in the previous violation, or your previous order that the
    probation and parole puts on you. So that there’s no confusion,
    this is a special condition of probation. All those conditions that
    they put on you are going to be part and parcel of the order as a
    special condition of probation.
    On both sentencing orders, the court conditioned the suspended sentences on supervised
    probation for five years “under the same terms and conditions as previously ordered.” The
    September 2021 revocation sentencing orders further provided, as a condition of the suspended
    sentences and probation, that “[t]he defendant must comply with all the rules and requirements
    set by the probation officer. Probation may include substance abuse counseling and/or testing as
    deemed necessary by the Probation Officer.” Nevertheless, the sentencing order did not
    explicitly contain any language specific to the aforementioned gang-related prohibitions.
    Watts served his active time, and again was released to the supervision of his probation
    officer. He again signed a gang-related instructions form entitled “Special Instructions—
    - 38 -
    Confirmed Gang/STG Members.” In this form, Watts again acknowledged his gang affiliation
    and again promised not to contact the members of his gang. Nevertheless, Watts again engaged
    in conduct that violated these gang-related prohibitions. Watts’s probation officer filed a major
    violation report, and the trial court held a revocation hearing on July 8, 2022. At the hearing,
    Watts stipulated to his violative conduct. The only issue was whether his conduct amounted to a
    failure to follow his probation officer’s instructions (and was therefore a mere second technical
    violation), or whether his conduct was a violation of the trial court’s own special condition.
    Ultimately, the trial court determined that it had formerly imposed the gang-related prohibitions
    as special conditions, and thus held that the violation was non-technical in nature. The trial court
    thereafter sentenced Watts to more than 14 days of active time.
    In determining that Watts’s conduct violated the trial court’s own special condition, the
    trial court made several statements, clearly wrestling with the appropriate disposition and
    rationale. First, the trial court stated that it reviewed the September 2021 revocation sentencing
    order and found no use of the phrase “special conditions” or “gang conditions” in the order.
    Nevertheless, the trial court opined that it was clearly the former judge’s “intent” to include the
    gang-related prohibitions in the order. The trial court went on to state that “I don’t think it has to
    be in the order. Because the guidelines themselves provide a special gang member condition
    instruction. They provide that. Without any order from the court they provide that. He clearly
    violated the special gang member conditions and instructions.” But in finding Watts in violation
    of his probation, the trial court clarified its rationale, stating
    So I do find that he has violated the special conditions. He has
    violated the oral order that Judge, the order that Judge Sandwich
    intended to enter. He has violated the order, the written order that
    was entered because it says he is supposed to follow all
    instructions of probation, and that included special gang
    instructions.
    - 39 -
    (Emphasis added). The trial court revoked Watts’s four-year suspended sentence and imposed a
    sentence of incarceration for four years, with one year suspended.
    ANALYSIS
    The issue presented on appeal is whether the trial court’s interpretation of the September
    2021 written order was reasonable. See McGinnis v. McGinnis, 
    69 Va. App. 572
    , 578 (2018);
    Smoot v. Commonwealth, 
    37 Va. App. 495
    , 500 (2002) (“Although trial courts have discretion to
    interpret their own orders, that discretion must be exercised reasonably and not arbitrarily or
    capriciously. Furthermore, an order must be interpreted within its four corners.” (citations
    omitted)). We believe that the text of the order may be reasonably interpreted to include
    language imposing the gang-related prohibitions and that therefore the trial court was within its
    discretion in interpreting it as such. Therefore, we would affirm the trial court’s ruling on this
    basis.
    The crux of our disagreement with the plurality and the concurrence on this point is
    whether the text of the September 14, 2021 written order contains some sort of textual anchor
    that can reasonably be read to incorporate the gang-related prohibitions as a special condition of
    the court. As pertinent to this question, we believe the two aforementioned statements from the
    order, read in conjunction with the trial court’s oral pronouncement from the bench, rise to a
    sufficient level so as to meet this standard of reasonability.
    Here, the trial court, in pronouncing the terms of Watts’s probation, expressly made the
    gang provisions ordered by the probation officer a “special condition” of the court, stating:
    I also specifically incorporate as a special condition of your
    probation all the gang related prohibitions that were in the previous
    violation, or your previous order that the probation and parole puts
    on you. So that there’s not confusion, this is a special condition of
    probation. All those conditions that they put on you are going to
    be part and parcel of the order as a special condition of probation.
    (Emphasis added).
    - 40 -
    Notwithstanding that the trial court did not expressly include any language in its written
    order pertaining to this “gang-related special condition,” the trial court was entitled to interpret
    the written order to include the above-mentioned special condition. See State ex rel. Moore v.
    Munchmeyer, 
    197 S.E.2d 648
    , 653 (W. Va. 1973) (“[T]his Court will construe a judgment order
    as sufficient although it does not contain specific adjudicatory language, if adjudicatory language
    is found in the opinion which is made part of the record by order. . . . ‘In construing a decree the
    intent of the court granting it will be looked to, and provisions may accordingly be sometimes
    implied. The decree will be construed and restricted in accordance with the pleadings and even
    with reference to other parts of the record.’” (emphasis added) (quoting Beecher v. Foster, 
    66 S.E. 643
    , 645 (W. Va. 1909))). In other words, the omission of any explicit language imposing
    the gang-related prohibitions as “special conditions” of the court does not inherently create a
    conflict between the written order and the record, as Watts argues on appeal. Instead, the order
    can be read in concert with the record to include such provisions.
    The gang-related provisions at issue here were originally imposed only by the probation
    officer, pursuant to her authority as such. However, after Watts’s first violation, the trial court
    thereafter orally adopted those provisions. The court stated that, going forward, those same
    provisions were now “part and parcel” of the trial court’s own probation revocation order. The
    trial court then memorialized this oral ruling in its written order, by stating that Watts would be
    placed on probation “under the same terms and conditions as previously ordered” and Watts
    “must comply with all the rules and requirements, set by the probation officer.” (Emphasis
    added).
    This language is sufficient, given the discretion afforded to trial courts in this regard, to
    support the trial court’s conclusion that the September 2021 written order contained the gang-
    related prohibitions at issue here. The trial court did not purport to rely solely on the oral
    - 41 -
    statements made at the September 8, 2021 hearing, but instead simply referenced those
    statements in interpreting the words of the written order.18 In doing so, the trial court found a
    textual anchor in the written order, namely, that: (1) the written order stated that Watts was
    placed on supervised probation “under the same terms and conditions as previously ordered,”
    and (2) “[t]he defendant must comply with all the rules and requirements set by the probation
    officer.” The trial court interpreted these express mandates as containing the oral
    pronouncements made by Judge Sandwich.19 The trial court’s interpretation falls squarely within
    the deference given to trial courts to interpret their own orders, and does not go beyond the
    bounds of reasonability, as a reasonable jurist could interpret the words “all the rules and
    18
    To the extent that the concurrence claims that “nothing in the transcript of the
    revocation hearing shows that the trial court interpreted that language as incorporating the
    special condition,” the record belies this contention.
    19
    We note that the record makes clear that the trial court acknowledged the apparent
    tension between the oral pronouncement made from the bench on September 8, 2021, and the
    subsequent written order entered on September 14, 2021. During the July 2022 hearing, the trial
    court alluded to this tension when it stated that “[i]t’s an order about the court date September
    8th . . . that was signed on September 14th . . . .” Further, the trial court expressly stated that it
    was interpreting the September 14, 2021 written order as containing the substance of the oral
    pronouncement:
    He has violated the oral order . . . that Judge Sandwich intended to
    enter. He has violated the order, the written order that was entered
    because it says he is supposed to follow all instructions of
    probation, and that included special gang instructions.
    ....
    [S]o the record is clear I am ruling that—I am effectively ruling
    two things. . . . I am ruling that the oral condition set forth by
    Judge Sandwich was violated. I am also finding that the written
    order was violated because it requires him to follow the terms of
    probation. And that his violation, and therefore his violation of the
    special instructions for confirmed gang members is not a technical
    violation as set forth in the statute.
    (Emphases added).
    - 42 -
    requirements set by the probation officer” to necessarily include the gang-related provisions that
    the probation officer had imposed during Watts’s initial period of probation.20
    For these reasons, we dissent in part and concur in part.
    20
    In coming to this conclusion, we would note several important caveats that are specific
    to this case. First, the facts of this case are unique, in that the trial court expressly adopted the
    gang-related prohibition as a special condition at the hearing. Therefore, there was no question
    of notice to the defendant. On appeal, counsel for Watts admitted as much during oral argument.
    Second, though the language contained in the written order is “boilerplate,” the unique set of
    facts and circumstances in this case support the trial court’s interpretation of that general
    language to contain the specific gang-related prohibitions enunciated by the trial court from the
    bench. Importantly, our holding today is not an invitation for the Commonwealth to utilize the
    same or similar boilerplate language as a broad “catch-all” provision in future cases in an effort
    to conjure special conditions cherry-picked from different portions of the record. Third, we
    would reiterate that this interpretation does not alter or impinge upon the principles set out in
    Delaune v. Commonwealth, 
    76 Va. App. 372
    , 382-83 (2023), that: (1) the “General Assembly
    specifically defined ‘technical violation’ to include any ‘violation based on’ [the] specified
    conduct” contained in Code § 19.2-306.1(A); (2) determining whether a violation is technical in
    nature requires us to consider whether “the violation conduct matches the conduct listed in Code
    § 19.2-306.1(A)”; (3) Code § 19.2-306.1(A) “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”; and (4) the trial court cannot arrogate to itself the power to transform any conduct
    listed in Code § 19.2-306.1(A) from a technical violation into its own special condition. Here,
    the trial court has not transformed the conduct contained in subsection (v) of the statute into its
    own special condition. Rather, Watts’s strained construction of the statute attempts to transform
    the trial court’s special condition regarding contact with gang affiliates into the probation
    officer’s instruction.
    - 43 -
    VIRGINIA:
    In the Court of Appeals of Virginia on Tuesday            the 23rd day of April, 2024.
    Rasheem Watts,                                                                                              Appellant,
    against             Record No. 1132-22-1
    Circuit Court Nos. CR16000355-04 and CR16000356-02
    Commonwealth of Virginia,                                                                                   Appellee.
    Upon a Petition for Rehearing En Banc
    Before the Full Court
    On April 2, 2024, the appellee, by the Attorney General of Virginia, filed a petition requesting that the
    Court set aside the judgment rendered on March 19, 2024, and grant a rehearing en banc on the issue(s) raised
    in the petition.
    On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
    the Court grants the petition for rehearing en banc and reinstates the appeal of those issues on the docket. The
    Court stays the mandate previously entered in this case pending the Court’s en banc decision.
    The parties must file briefs in compliance with the schedule set forth in Rule 5A:35(b).
    A Copy,
    Teste:
    A. John Vollino, Clerk
    original order signed by a deputy clerk of the
    By:      Court of Appeals of Virginia at the direction
    of the Court
    Deputy Clerk
    COURT OF APPEALS OF VIRGINIA
    Present: Judges Fulton, Friedman and Chaney
    UNPUBLISHED
    Argued at Norfolk, Virginia
    RASHEEM WATTS
    MEMORANDUM OPINION BY
    v.     Record No. 1132-22-1                                  JUDGE VERNIDA R. CHANEY
    MARCH 19, 2024
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
    L. Wayne Farmer, Judge
    Kelsey Bulger, Senior Appellate Attorney (Virginia Indigent Defense
    Commission, on briefs), for appellant.
    Lucille M. Wall, Assistant Attorney General (Jason S. Miyares,
    Attorney General, on brief), for appellee.
    Rasheem Watts appeals two orders of the Circuit Court of the City of Suffolk revoking
    his probation and suspended sentences on convictions for malicious wounding and firearm
    possession as a convicted felon. Watts’s probation violations included his failure to follow the
    probation officer’s “special instructions” for gang members. The circuit court sentenced Watts
    to active incarceration for three years for violating his probation on the malicious wounding
    conviction but did not impose a sentence of active incarceration for violating his probation on the
    firearm conviction.
    Watts contends that the circuit court erred in ruling that his failure to follow the probation
    officer’s “special instructions” for gang members was not a technical violation of probation
    under Code § 19.2-306.1. Watts also contends that the circuit court erred in failing to sentence
    him within the statutory sentencing limits for the technical violation of his probation on the
    
    This opinion is not designated for publication. See Code § 17.1-413(A).
    underlying malicious wounding conviction. Upon finding that the circuit court’s written
    sentencing orders did not impose the probation officer’s special gang-related instructions as
    conditions of Watts’s probation, this Court holds that the circuit court erred in ruling that Watts’s
    failure to follow these “special instructions” was not a technical violation of probation under
    Code § 19.2-306.1. For the following reasons, this Court reverses the circuit court’s judgment,
    vacates the sentence in Circuit Court Case No. CR16000356-02, and remands for resentencing
    consistent with this opinion and in accordance with Code § 19.2-306.1(C).
    BACKGROUND
    A. Prior Proceedings
    1. Original Conviction and Sentencing
    In May 2016, the circuit court convicted Watts of malicious wounding and firearm
    possession by a convicted felon. On the malicious wounding conviction, the court sentenced
    Watts to incarceration for six years with four years and six months suspended, conditioned on
    five years of supervised probation. On the firearm conviction, the court sentenced Watts to
    incarceration for five years with three years suspended. The court conditioned both sentences on
    five years of supervised probation. The sentencing orders also provided, as a condition of the
    suspended sentences and probation, that “[t]he defendant shall comply with all the rules and
    requirements set by the probation officer. . . . The defendant shall have no contact with the
    victim, [E.W.], or his family members.”
    2. Watts’s First Probation Revocation
    At a probation violation hearing on September 8, 2021, the circuit court found Watts in
    violation of the terms and conditions of his probation and revoked Watts’s probation and
    suspended sentences. The revocation sentencing orders, dated September 14, 2021 (September
    2021 revocation sentencing orders), do not identify the probation violations that resulted in the
    -2-
    revocation of Watts’s probation, and do not record whether the probation violations were
    technical or non-technical violations under Code § 19.2-306.1.
    The court found Watts in violation of his probation and revoked his suspended sentences.
    On the malicious wounding conviction, the circuit court imposed the previously suspended
    sentence and re-suspended four years and six months. On the firearm conviction, the circuit
    court imposed the previously suspended sentence and re-suspended two years and six months.
    On both sentences, the court conditioned the suspended sentences on supervised probation for
    five years “under the same terms and conditions as previously ordered.” The September 2021
    revocation sentencing orders further provided, as a condition of the suspended sentences and
    probation, that “[t]he defendant must comply with all the rules and requirements set by the
    probation officer. Probation may include substance abuse counseling and/or testing as deemed
    necessary by the Probation Officer.”
    B. Watts’s Second Probation Revocation
    1. The Special Probation Instructions for Gang Members
    After Watts served his first probation revocation sentence, his supervised probation began
    on January 5, 2022. On January 18, 2022, at the direction of his probation officer, Watts signed
    a form with the heading “Special Instructions—Confirmed Gang/STG Members.” (R. 72, 228).
    The form identified Watts as a member of “Rollin 40’s Gang/STG” and instructed Watts as
    follows:
    You have been placed on Supervision by the Virginia Parole Board
    and/or the Circuit Court. Pursuant to Condition 6 of your
    Conditions of Supervision, having been confirmed as a gang/STG
    member, you are now being directed to comply with the following
    instruction(s) as a requirement of your probation.
    (R. 228) (emphasis added). Watts’s signature at the bottom of the form follows a list of “special
    instructions” and a statement “acknowledg[ing] receipt of the instruction(s) and agree[ing] to
    -3-
    comply with the instruction(s).” Watts’s probation officer, Special Probation Officer Kathy
    Dunlow (SPO Dunlow), also signed the form.
    2. The May 2022 Probation Violation Report
    On May 17, 2022, SPO Dunlow filed a major violation report (May 2022 violation
    report) alleging that Watts had committed a second technical violation of probation. As the
    circuit court noted at the outset of the probation violation hearing in July 2022, the May 2022
    violation report alleged that Watts (1) violated Probation Condition 4—requiring Watts to report
    to probation “within three working days of [his] release from incarceration, and as otherwise
    instructed thereafter”—and (2) violated Probation Condition 6—requiring Watts to “follow the
    Probation and Parole Officer’s instructions and . . . be truthful, cooperative, and report as
    instructed.”
    The May 2022 violation report specifically alleged that Watts violated Probation
    Condition 4 by failing to report for three scheduled appointments with his probation officer, and
    violated Probation Condition 6 by failing to follow two of the probation officer’s special
    instructions for gang members. Watts allegedly failed to follow his probation officer’s special
    instructions to (a) “not associate or communicate with any known gang/STG members or be in
    the presence of where they are known to associate” and (b) “not wear, display, use, or possess
    any insignias, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas,
    shirts, or other articles of clothing that are evidence of gang/[street gang] membership or
    affiliation.” Watts allegedly had repeated phone contact with multiple incarcerated gang
    members and posted on social media writings, photos, and a video showing his gang
    involvement.
    -4-
    3. The July 2022 Probation Violation Hearing
    On July 8, 2022, the circuit court held a hearing on the probation violations alleged in the
    May 2022 violation report. At the outset of the hearing, the circuit court noted that the
    May 2022 violation report alleged violations of Probation Condition 4—failure to report to
    probation as instructed—and Probation Condition 6—failure to follow the probation officer’s
    instructions and to be truthful and cooperative. The circuit court further noted that it was Watts’s
    second alleged probation violation. No violation reports related to the prior probation revocation
    were introduced and admitted into evidence. The circuit court read into the record a portion of
    its prior September 2021 oral ruling:
    I also specifically incorporate as a special condition of your
    probation all the gang-related prohibitions that were in previous
    violation on your previous order that probation and parole puts on
    you. And so there’s no confusion this is a special condition of
    probation. All those conditions that they put on you are going to
    be part and parcel of the order as a special condition of probation.
    R. 170.1 However, this oral ruling was not included in the written order.
    Watts did not contest the alleged probation violations or the evidence set forth in the
    May 2022 violation report. By counsel, Watts stipulated to his commission of the alleged
    violations of Probation Conditions 4 and 6 and noted that the alleged violations were not special
    conditions but were technical violations under Code § 19.2-306.1. The circuit court responded,
    “Correct.” (R. 169). Based on Watts’s stipulations and the contents of the May 2022 violation
    report, the circuit court found Watts in violation of the terms and conditions of probation.
    The circuit court then stated that the question regarding sentencing was whether the
    circuit court’s prior oral ruling made the “gang-related prohibitions” “part and parcel of the order
    1
    Judge Robert H. Sandwich, Jr. pronounced this bench ruling..
    -5-
    as a special condition of probation.” (R. 169-70). The “Special Instructions” for gang members
    signed by Watts was admitted as Commonwealth’s Exhibit 1.
    SPO Dunlow testified that the probation revocation sentencing guidelines she initially
    prepared and submitted identified Watts’s probation violation as a second technical violation.
    SPO Dunlow further testified that she had determined it was a second technical violation based
    on her review of the prior written revocation sentencing order, which did not order any
    gang-related conditions. SPO Dunlow also testified that the original sentencing order did not
    include any gang-related conditions on Watts’s probation. SPO Dunlow acknowledged that she
    gave Watts the special instructions for gang members pursuant to Condition 6 of the conditions
    of supervision. (R. 178).
    The circuit court stated that it reviewed the September 2021 revocation sentencing order
    and found no use of the phrase “special conditions” and no “gang conditions” in the order.
    (R. 191-92). The circuit court opined, “I don’t think it has to be in the order.” (R. 193). The
    circuit court stated its finding that Watts violated a “special condition of his suspended
    sentence.”
    The circuit court further stated that it was exercising its authority to check the box on the
    sentencing guidelines form for violating special gang member conditions. The circuit court
    pronounced, “[T]herefore, the fourteen-day limit does not apply. So I do find that he has
    violated the special conditions.”
    The circuit court also pronounced that Watts “has violated the oral order that . . . [the
    circuit court] intended to enter.” Additionally, the circuit court found that Watts “violated the
    order, the written order that was entered because it says he is supposed to follow all instructions
    of probation, and that included special gang instructions.” Based on these findings, the circuit
    -6-
    court concluded that “the appropriate guidelines are the ones that call for zero to six months of
    active time.”
    The circuit court revoked Watts’s four-year suspended sentence and imposed a sentence
    of incarceration for four years, with one year suspended. This appeal followed.
    ANALYSIS
    Watts contends that the circuit court erred in (1) ruling that his probation violations for
    failing to follow the probation officer’s “special instructions” for gang members were not technical
    violations under Code § 19.2-306.1 and (2) failing to sentence him within the sentencing limits
    under Code § 19.2-306.1 for a technical violation of his probation on the underlying malicious
    wounding conviction.
    On appellate review of the circuit court’s revocation of a defendant’s probation and
    suspended sentence, “[t]he evidence is considered in the light most favorable to the Commonwealth,
    as the prevailing party below.” Jacobs v. Commonwealth, 
    61 Va. App. 529
    , 535 (2013). “[T]he
    trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of
    abuse of discretion.’” 
    Id.
     (quoting Davis v. Commonwealth, 
    12 Va. App. 81
    , 86 (1991)). A
    “[circuit] court by definition abuses its discretion when it makes an error of law.” Porter v.
    Commonwealth, 
    276 Va. 203
    , 260 (2008) (alteration in original). “To the extent that appellant’s
    assignment of error raises a question of statutory interpretation, that question is reviewed de novo on
    appeal.” Jacobs, 
    61 Va. App. at 535
    . But we give deference to the circuit court’s interpretation of
    its own orders, if reasonable. See Hodgins v. Commonwealth, 
    61 Va. App. 102
    , 108 (2012); Roe v.
    Commonwealth, 
    271 Va. 453
    , 457-58 (2006). “We apply an abuse of discretion standard in
    determining whether the circuit court’s interpretation of its order is reasonable.” Roe, 271 Va. at
    458.
    -7-
    I. The circuit court’s prior oral ruling—not incorporated in the written sentencing
    orders—imposed no conditions of probation.
    The circuit court erred in ruling that Watts’s probation violation was a non-technical
    violation under Code § 19.2-306.1 upon finding that Watts violated a “special condition” of
    probation imposed by the court’s prior oral ruling. At the July 2022 probation violation hearing, the
    circuit court found Watts in violation of his supervised probation upon Watts’s stipulati on that
    (1) he failed to report as instructed to three scheduled appointments with his probation officer and
    (2) he failed to follow his probation officer’s instructions to (a) refrain from contact with gang
    members and (b) refrain from wearing, displaying, using, or possessing clothing or other objects
    that show gang membership or affiliation. Watts also stipulated that he signed a written form listing
    special probation instructions for gang members, which included the instructions that he allegedly
    and admittedly failed to follow.2
    In deciding whether Watts’s probation violations were technical violations subject to the
    sentencing limits under Code § 19.2-306.1, the circuit court examined the September 2021
    revocation sentencing orders to determine whether the conditions of Watts’s suspended
    sentences and probation included “special conditions” related to Watts’s probation violations.
    The circuit court found that the written revocation sentencing orders did not impose any
    gang-related probation conditions.
    Although the September 2021 revocation sentencing orders did not impose any
    gang-related conditions of probation, the circuit court ruled that it imposed special gang-related
    probation conditions through its oral ruling at Watts’s first probation revocation hearing. Based
    on the circuit court’s prior oral ruling and the circuit court’s finding that the gang-related
    2
    This revocation hearing also alleged other, undisputedly technical violations. But Code
    § 19.2-306.1 explains that multiple technical violations count as a single violation when
    adjudicated in the same hearing. Thus, we focus only on determining whether the gang-related
    conditions imposed a technical probation requirement.
    -8-
    prohibitions were “special conditions” of probation, the circuit court concluded that Watts’s
    probation violation was not a technical violation under Code § 19.2-306.1.
    The circuit court erred in ruling that its oral ruling at Watts’s first revocation hearing
    imposed gang-related probation conditions on Watts. “[I]t is the firmly established law of this
    Commonwealth that a trial court speaks only through its written orders.” Walton v.
    Commonwealth, 
    256 Va. 85
    , 94 (1998) (quoting Davis v. Mullins, 
    251 Va. 141
    , 148 (1996)
    (applying the principle in a capital murder case in which the trial court’s statement from the
    bench conflicted with the sentencing order)). “When a court’s statements from the bench
    conflict with its written order, the order controls.” Anonymous B v. Anonymous C, 
    51 Va. App. 657
    , 672 (2008). Given that the September 2021 revocation written sentencing orders do not
    include any probation conditions requiring Watts to refrain from gang involvement, this Court
    finds that the circuit court did not order Watts’s compliance with the “special instructions” for
    gang members as conditions of his probation and suspended sentence.
    The Commonwealth contends that the circuit court “explicitly incorporated the
    specialized gang conditions as a special condition of Watts’s probation.” Appellee’s Br. 10-11.
    In support of this contention, the Commonwealth references the court’s pronouncements in the
    transcript of Watts’s first revocation proceeding, not the written revocation sentencing orders
    entered after that hearing. As the circuit court found and the record shows, the written
    revocation sentencing orders did not include the gang-related special instructions as conditions of
    Watts’s probation.
    The Commonwealth argues that in keeping with the obligation of appellate courts to
    defer to the circuit court’s interpretation of its orders, this Court should treat the circuit court’s
    oral bench ruling at Watts’s prior probation revocation hearing as the court’s order imposing the
    conditions of Watts’s probation. See Roe, 271 Va. at 458 (holding that Virginia appellate courts
    -9-
    accord deference to a circuit court’s reasonable interpretation of its own orders). However, the
    circuit court did not interpret its written sentencing orders to include the gang-related probation
    conditions at issue. Rather, the circuit court treated its oral ruling as an enforceable order,
    notwithstanding its determination that the written sentencing orders did not expressly impose the
    gang-related probation conditions. See Yazdani v. Sazegar, 
    76 Va. App. 261
    , 271 (2022) (“In
    reviewing an agreement for evidence of waiver, ‘[c]ourts cannot read into contracts language
    which will add to or take away from the meaning of the words already contained therein.’”
    (quoting Southerland v. Estate of Southerland, 
    249 Va. 584
    , 590 (1995))).
    The Commonwealth argues that Virginia law merely presumes that a trial court speaks
    only through its written orders and that this presumption was rebutted here. See McGinnis v.
    McGinnis, 
    69 Va. App. 572
    , 578 (2018) (“Virginia law recognizes a rebuttable presumption that
    ‘trial courts speak only through their written orders.’” (quoting Dir. of the Dep’t of Corr. v.
    Kozich, 
    290 Va. 502
    , 511 (2015))). The Commonwealth contends that the transcript of Watts’s
    prior revocation hearing shows that the circuit court intended to impose the gang-related special
    instructions as conditions of Watts’s probation.
    But “[t]he subjective intentions of a judge upon entering a written order cannot change its
    character or legal efficacy.” Kozich, 
    290 Va. at 511
    . Therefore, the circuit court’s oral
    announcement of incorporating the gang-related conditions does not overcome the presumption
    that circuit courts speak only through their written orders. The presumption is typically rebutted
    by a record showing that a written order contains a clerical mistake or error due to oversight or
    inadvertent omission. Code § 8.01-428(B). Those corrections can be made only if they are
    supported by the record. Sch. Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 
    237 Va. 550
    , 555
    (1989), superseded by statute on other grounds as recognized in Hill v. Hill, 
    2021 Va. App. LEXIS 208
    , *7 n.2 (Nov. 16, 2021) (“In the aftermath of the School of Board of
    - 10 -
    Lynchburg case, the General Assembly enacted Code § 8.01-428(C), and by its express terms
    permitted a ‘circuit court’ to extend the deadline to note an ‘appeal therefrom’ under certain
    circumstances.”).
    This record—where the circuit court had multiple opportunities to issue written, gang-
    related conditions, but did not do so—does not show mere oversight or inadvertence under Code
    § 8.01-428(B). Moreover, the Commonwealth was free to move the circuit court to clarify the
    sentencing order if it did not reflect the court’s intent. It did not do so. See Stamper v.
    Commonwealth, 
    220 Va. 260
    , 280 (1979) (“In the absence of objection, we deem the order of the
    trial court to contain an accurate statement of what transpired.”). Upon review of the prior
    revocation sentencing orders, this Court concludes that the record supports the circuit court’s
    finding that the probation conditions imposed in these sentencing orders do not include the
    “special instructions” for gang members.
    The presumption that a circuit court speaks only through its written orders can be
    rebutted by a record showing that a written order contains a clerical mistake or error due to
    oversight or inadvertent omission. Code § 8.01-428(B) (authorizing circuit courts to correct
    “[c]lerical mistakes in all judgments or other parts of the record and errors therein arising from
    oversight or from an inadvertent omission”). “The court has the power to correct the record
    under Code § 8.01-428(B) only ‘when the record clearly supports such corrections.’” School Bd.
    of Lynchburg, 
    237 Va. at 555
     (quoting Cutshaw v. Cutshaw, 
    220 Va. 638
    , 641 (1979)). After
    notice to the parties, the circuit court is authorized to make such corrections at any time, with
    restrictions during the pendency of an appeal. 3 See Code § 8.01-428(B). The circuit court may
    make such corrections “on its own initiative or upon the motion of any party.” Id.
    3
    “During the pendency of an appeal, such mistakes may be corrected before the appeal is
    docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be
    corrected with leave of the appellate court.” Code § 8.01-428(B).
    - 11 -
    The record indicates the omission of the gang-related probation conditions from the prior
    revocation sentencing orders may have been deliberate and based on a mistake of law, rather
    than a clerical mistake or error from oversight or inadvertent omission. The circuit court ruled,
    and the Commonwealth now contends, that by expressly requiring Watts to “comply with all the
    rules and requirements set by the probation officer,” the prior revocation sentencing orders
    imposed a “special condition” of probation that rendered any failure to follow the probation
    officer’s instructions a non-technical violation of probation. On this assumption, it would have
    been considered unnecessary to expressly incorporate the gang-related probation conditions
    pronounced in the oral bench ruling. Under such circumstances, the presumption that the circuit
    court “speaks” the imposed probation conditions only through its written sentencing orders
    would not be rebutted by the transcript of the oral pronouncement of the gang-related probation
    conditions. Contrary to the circuit court’s ruling and the Commonwealth’s contention, the prior
    revocation sentencing orders did not impose a non-technical “special condition” of probation by
    expressly conditioning Watts’s probation on the requirement to “comply with all the rules and
    requirements set by the probation officer.”
    Our dissenting colleague argues that the circuit court can interpret the written order to
    include gang-related conditions as substantive conditions, because the circuit court’s oral
    pronouncement makes that interpretation a part of the record. See Post at 22. Respectfully, we
    disagree. The dissent cites a Supreme Court of Appeals of West Virginia case to support this
    proposition that a circuit court may, through interpretation, inject new meaning into a written
    order. Id. (citing State ex rel. Moore v. Munchmeyer, 
    197 S.E.2d 648
    , 653 (W. Va. 1973)
    (quoting Beecher v. Foster, 
    66 S.E. 643
    , 645 (W. Va. 1909))). But that proposition does not find
    any support in Virginia law. To the contrary, our Court has held “when the trier of fact issues an
    opinion at the time its decree is entered, the opinion is instructive as to the decree’s reasoning
    - 12 -
    and, by extension, its effect.” Rusty’s Welding Serv., Inc. v. Gibson, 
    29 Va. App. 119
    , 130
    (1999) (emphasis added) (citing, e.g., Munchmeyer, 197 S.E.2d at 653). The order here does not
    mention gang-related probation conditions. Rather, the trial court injected an absent condition
    into the written order long after the fact, which is akin to rewriting the order, not interpreting the
    order.
    II. The circuit court erred in ruling that Watts’s probation violation is a non-technical
    violation based on its finding that Watts violated a “special condition” of probation.
    A. The circuit court found that Watts violated a “special condition” of probation.
    The circuit court concluded that Watts violated a “special condition” of probation upon
    considering the probation sentencing guidelines form and the form listing the probation officer’s
    “special instructions” for gang members. The circuit court noted that the probation conditions
    listed on the sentencing guidelines form include “Special Gang Member
    Conditions/Instructions.” The court ruled that the box next to “Special Gang Member
    Conditions/Instructions” should be checked because Watts violated his probation officer’s
    “special instructions” for gang members. Upon finding that Watts thereby violated a “special
    condition” of probation, the circuit court ruled that the 14-day statutory maximum sentence for
    second technical probation violations did not apply. See Code § 19.2-306.1(C).
    The circuit court’s finding that Watts violated a “special condition” of probation is also
    based on the court’s consideration of the probation conditions stated in the September 2021
    revocation sentencing order. Although the sentencing order does not include any gang-related
    probation conditions, the circuit court noted that the order provides, as a condition of the
    suspended sentence and probation, that “[t]he defendant must comply with all the rules and
    requirements set by the probation officer.” The circuit court ruled that because the
    September 2021 revocation sentencing order conditions Watts’s probation on his compliance
    - 13 -
    with the probation officer’s instructions, Watts violated a “special condition” of probation by
    violating the probation officer’s instructions to refrain from gang involvement.
    B. A violation of a “special condition” of probation is not necessarily a non-technical
    violation under Code § 19.2-306.1.
    The circuit court erroneously ruled that because Watts violated a “special condition” of
    probation, his probation violation was a non-technical violation under Code § 19.2-306.1. Upon
    finding that Watts violated a “special condition” of probation by violating the probation officer’s
    “special instructions” for gang members, the circuit court ruled that its sentencing power was not
    limited by the statutory sentencing limits for first and second technical probation violations. See
    Code § 19.2-306.1(C). Upon finding that Watts violated a “special condition” of probation
    under the September 2021 revocation sentencing orders, the circuit court ruled that “therefore[,]
    his violation of the special instructions for confirmed gang members is not a technical violation
    as set forth in the statute.”
    After the circuit court sentenced Watts for a non-technical probation violation, this Court
    issued its opinion in Delaune, rejecting the contention that a violation of any “special condition”
    of probation is a non-technical violation for purposes of sentencing under Code § 19.2-306.1. See
    Delaune v. Commonwealth, 
    76 Va. App. 372
    , 382-83 (2023), aff’d, ___ Va. ___ (Dec. 14, 2023).
    As explained in Delaune, the sentencing limits for first and second technical probation violations
    apply if the violation is based on conduct defined as a “technical violation” in the ten technical
    violations enumerated in Code § 19.2-306.1(A). Id.
    In Delaune, the defendant’s suspended sentence was revoked based, in part, on the
    defendant’s use of controlled substances. The sentencing order that placed Delaune on supervised
    probation required her to “be drug-free” as a condition of the probation and suspended sentence.
    The trial court ruled that Delaune’s probation violation was a special, non-technical violation
    because her drug use violated a special condition of probation imposed in the sentencing order. In
    - 14 -
    reversing this ruling, this Court held that “[w]hen the violation conduct matches the conduct listed
    in Code § 19.2-306.1(A), it is, by definition, a “technical violation.” Delaune, 76 Va. App. at 383.
    Delaune’s drug use was a technical violation because clause (vii) of Code § 19.2-306.1(A) defines
    “technical violation” to include a probationer’s failure to “refrain from the use, possession, or
    distribution of controlled substances.” Therefore, whether or not a condition of probation is labeled
    a “special condition” or included in the sentencing order as a condition of the suspended sentence,
    a violation of the condition is a technical violation under Code § 19.2-306.1 if the violation is based
    on the probationer’s failure to comply with any of the ten requirements set forth in Code
    § 19.2-306.1(A).
    C. Watts’s probation violation is a technical violation under Code § 19.2-306.1.
    Both of Watts’s probation violations are technical violations under Code § 19.2-306.1.
    Watts’s failure to report as instructed for three scheduled meetings with his probation officer is a
    technical violation because clause (v) of Code § 19.2-306.1(A) defines “technical violation” as “a
    violation based on the probationer’s failure to . . . report as instructed” to the probation officer.
    See Code § 19.2-306.1(A). Watts’s failure to follow his probation officer’s instructions to refrain
    from gang involvement is a technical violation because clause (v) of Code § 19.2-306.1(A) also
    defines “technical violation” as “a violation based on the probationer’s failure to . . . follow the
    instructions of the probation officer.” Because Watts’s violation conduct “matches the conduct
    listed in Code § 19.2-306.1(A), it is, by definition, a ‘technical violation.’” Delaune, 76 Va. App. at
    383.
    The label “special instructions” on the probation officer’s gang-related instructions is not
    relevant in determining whether the failure to follow these instructions is a technical violation under
    Code § 19.2-306.1. In construing this statute, “our primary objective is ‘to ascertain and give effect
    to legislative intent,’ as expressed by the language used in the statute.” Blake v. Commonwealth,
    - 15 -
    
    288 Va. 375
    , 381 (2014) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 
    283 Va. 420
    ,
    425 (2012)). In defining a “technical violation” of probation to include a probationer’s “failure
    to . . . follow the instructions of the probation officer,” the General Assembly made no exception for
    instructions labeled “special instructions.” See Code § 19.2-306.1(A). “Appellate courts ‘must
    assume that the General Assembly chose, with care, the words it used in enacting the statute, and we
    are bound by those words when we apply the statute.’” Henthorne v. Commonwealth, 
    76 Va. App. 60
    , 66 (2022) (quoting Jordan v. Commonwealth, 
    295 Va. 70
    , 75 (2018)). Thus, Code
    § 19.2-306.1(A)(v) cannot reasonably be construed to include an exception for a probationer’s
    failure to follow the “special instructions” of the probation officer. We decline to read an exception
    for “special instructions” into Code § 19.2-306.1(A)(v). See Henthorne, 76 Va. App. at 67
    (“[C]ourts cannot, by judicial interpretation, add language to a statute that the General Assembly did
    not include in its enactment.” (alteration in original) (quoting Young v. Commonwealth, 
    273 Va. 528
    , 534 (2007))). Therefore, Watts’s failure to follow his probation officer’s instructions to refrain
    from gang involvement is a technical probation violation under Code § 19.2-306.1.
    The Commonwealth argues that Watts’s probation violation was not a technical violation
    because a probationer’s failure to comply with “special gang instructions” does not match any
    conduct identified as a technical violation in Code § 19.2-306.1(A). But under the description
    “failure to follow the instructions of the probation officer to comply with ‘special gang
    instructions,’” Watts’s violation conduct does match conduct statutorily defined as a technical
    violation in Code § 19.2-306.1(A). Thus, to determine whether Watts’s probation violation is a
    technical violation, we must first determine the appropriate description of Watts’s violation conduct.
    To determine whether, for purposes of Code § 19.2-306.1, a probationer’s violation conduct
    is appropriately described as a failure to follow the instructions of the probation officer, we must
    determine whether the probation officer’s instructions relate to a court-ordered condition of the
    - 16 -
    probationer’s suspended sentence and probation. When a probationer fails to comply with a
    court-ordered probation condition to do or refrain from doing specified conduct that “does not fall
    within any of the ten enumerated technical violations under Code § 19.2-306.1(A),” the violation
    conduct is a “failure to follow the instructions of the court.” See Burford v. Commonwealth, 
    78 Va. App. 170
    , 183-84 (2023) (emphasis added). As this Court held in Burford, such a probation
    violation is a non-technical violation under Code § 19.2-306.1(A). Id. at 183. Therefore, under
    circumstances where a probationer fails to follow a probation officer’s instructions to comply with
    such a court-ordered condition of probation, the probationer’s violation conduct is not properly
    described as “a failure to follow the instructions of the probation officer” for purposes of Code
    § 19.2-306.1.
    The Commonwealth describes Watts’s violation conduct as a failure to comply with “special
    gang instructions” imposed by the circuit court. However, as the record shows and the circuit court
    acknowledged, the circuit court’s prior revocation sentencing order does not include any
    gang-related instructions as conditions of Watts’s suspended sentence and probation. The
    Commonwealth asks this Court to give effect to an oral ruling that is not incorporated in the circuit
    court’s written order. This Court cannot accept the Commonwealth’s invitation to depart from
    binding precedent holding that “a trial court speaks only through its written orders.” Walton, 
    256 Va. at 94
     (quoting Davis, 
    251 Va. at 148
    ).
    The circuit court’s prior revocation sentencing order did not impose any condition on
    Watt’s suspended sentence and probation incorporating the gang-related instructions signed by
    Watts at the direction of his probation officer. Therefore, but for the probation officer’s
    instructions, the terms of Watts’s probation would not require his compliance with the special
    instructions for gang members. Under these circumstances, Watts’s violation conduct is properly
    - 17 -
    described as a “failure to follow the instructions of the probation officer,” and is a technical
    probation violation under Code § 19.2-306.1.4
    III. The circuit court erred in failing to sentence Watts within the statutory sentencing
    limits for a second technical violation of probation.
    The probation violations at issue in this appeal collectively constitute a single technical
    violation of probation. Since Code § 19.2-306.1(A) provides that multiple technical violations
    considered at the same revocation hearing constitute a single probation violation for purposes of
    sentencing under Code § 19.2-306.1, Watts’s multiple technical violations count as a single
    technical violation. See Code § 19.2-306.1(A).
    Since Watts had only one prior probation revocation, in September 2021, the technical
    violation at issue here is, at most, Watts’s second technical violation. Whether Watts’s technical
    probation violation is a first or second technical violation depends on whether Watts’s prior
    revocation was for a technical violation of probation. See Heart v. Commonwealth, 
    75 Va. App. 453
    , 460 (2022) (holding that Code § 19.2-306.1 requires evidence of two prior technical violations
    before a defendant may be sentenced for a third technical violation). Here, the prior revocation
    sentencing order does not identify the probation violations that resulted in the probation revocation
    and does not state whether the probation violations were technical or non-technical. Nor did the
    Commonwealth introduce in evidence the violation reports related to the prior probation
    revocations. But Watts’s probation officer testified, without objection, that the sentencing
    guidelines she initially submitted were for a second technical violation. Moreover, Watts argued to
    the circuit court that if the court concluded that his probation violation was a technical violation, the
    4
    This holding is not inconsistent with this Court’s holding in Thomas v. Commonwealth,
    
    77 Va. App. 613
    , 625 n.10 (2023) (“[N]either party suggests that subsection (A)(v) [of Code
    § 19.2-306.1] controls the outcome of this appeal, and we are conscious of the requirement to
    decide cases on the best and narrowest ground. . . . Therefore, we do not address whether the
    appellant’s alcohol and drug violations were technical ones under subsection (A)(v) or whether a
    properly presented claim based on that subsection would have resulted in a different outcome.”).
    - 18 -
    14-day maximum sentence for a second technical violation would apply. Because the record
    supports a finding that Watts’s prior probation violation was a technical violation, we conclude that
    the circuit court should have sentenced Watts for a second technical violation of probation.
    The circuit court sentenced Watts to a period of active incarceration that exceeds the
    statutory maximum sentence for a second technical violation of probation. Under Code
    § 19.2-306.1(C), there is “a presumption against imposing a sentence of a term of active
    incarceration for any second technical violation” of probation. Code § 19.2-306.1(C). “However,
    if the court finds, by a preponderance of the evidence, that the 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. The circuit court exceeded this limit by imposing a sentence of active incarceration
    for three years. Because the circuit court unlawfully imposed a sentence of active incarceration that
    exceeds the statutory maximum sentence for a second technical probation violation, Watts must,
    therefore, be resentenced.
    CONCLUSION
    The circuit court erred in ruling that Watts’s failure to follow the probation officer’s
    “special instructions” for gang members was not a technical violation of probation under Code
    § 19.2-306.1. The circuit court further erred in imposing a sentence of active incarceration that
    exceeded the statutory maximum sentence for a second technical violation of probation under Code
    § 19.2-306.1(C). Therefore, this Court reverses the circuit court’s judgment, vacates the revocation
    sentencing order in Circuit Court Case No. CR16000356-02, and remands for resentencing
    consistent with this opinion and in accordance with Code § 19.2-306.1(C).
    Reversed, vacated, and remanded.
    - 19 -
    Fulton, J., dissenting.
    This case presents an occasion to clarify the contours of Code §§ 19.2-306 and -306.1.
    Watts argues—and the majority agrees—that the gang-related prohibition imposed upon him is a
    technical violation under Code § 19.2-306.1(A)(v), which requires that he “follow the instructions
    of the probation officer, be truthful and cooperative, and report as instructed.” In effect, Watts
    argues that, despite its later adoption by the trial court, because the “Special Instructions” form he
    signed was given to him by the probation officer, that condition was an “instruction[] of the
    probation officer” under Code § 19.2-306.1(A)(v)—which would be merely a technical violation.
    Watts’s construction turns the statute on its head.
    Since I disagree with Watts and the majority’s assertion that the trial court abused its
    discretion in interpreting its own order, I respectfully dissent from the majority’s decision to
    reverse Watts’s probation revocation. Instead, I would affirm Watts’s sentence on the ground
    that the September 14, 2021 probation revocation order contained sufficient language as to
    incorporate the oral pronouncements made by the trial court 5 during the September 8, 2021
    revocation hearing.
    As pertinent here, the trial court saw fit to incorporate the gang-related provisions
    initially imposed by Watts’s probation officer into the trial court’s own probation revocation
    order. Specifically, the trial court imposed as a special condition of Watts’s probation “all the
    gang related prohibitions” that probation and parole had earlier placed on Watts. Thereafter,
    upon his release, Watts was again placed on probation and once again, his probation officer
    directed Watts to refrain from contacting his former gang associates or engaging in any gang
    5
    Judge Sandwich presided over the September 8, 2021, revocation hearing. Judge
    Farmer presided over the July 8, 2022 hearing, and ultimately issued the order revoking Watts’s
    probation and imposing the active sentence.
    - 20 -
    activity. Nevertheless, Watts yet again violated these gang-related conditions, and on May 17,
    2022, his probation officer filed a major violation report.
    The issue presented in this case is whether the trial court properly interpreted the written
    orders issued following the first revocation hearing as incorporating the gang member
    instructions as a special condition, despite the absence of any explicit language in the written
    orders. Both parties, as well as the majority, concede that a trial court may interpret it s own
    order and that this interpretation must receive deference on appeal. Hodgins v. Commonwealth,
    
    61 Va. App. 102
    , 108 (2012). Watts argues, however, that courts speak only through their
    written orders and that the trial court’s interpretation exceeds the “four corners” of the written
    orders. Cf. McGinnis v. McGinnis, 
    69 Va. App. 572
    , 578 (2018); Smoot v. Commonwealth, 
    37 Va. App. 495
    , 500 (2002) (“Although trial courts have discretion to interpret their own orders,
    that discretion must be exercised reasonably and not arbitrarily or capriciously. Furthermore, an
    order must be interpreted within its four corners.” (citations omitted)). Further, Watts argues that
    there is a presumption that written orders more accurately reflect the judgment of the court than
    the trial transcript. Smith v. Commonwealth, 
    32 Va. App. 766
    , 772 (2000). However, as the
    Commonwealth notes, this is a “rebuttable presumption.” McGinnis, 
    69 Va. App. at 578
    . “[A]
    reviewing court must read [written] orders in context.” Cellucci v. Commonwealth, 
    77 Va. App. 36
    , 51 (2023) (en banc). This Court also has held, “in construing an order . . . that does not
    conflict with the transcript, a reviewing court may consider the lower court’s statements from the
    bench to determine what construction a lower court has placed on its own order.” Anonymous B
    v. Anonymous C, 
    51 Va. App. 657
    , 672 (2008).
    Here, the trial court, in pronouncing the terms of Watts’s probation, expressly made the
    gang provisions ordered by the probation officer a “special condition” of the court, stating:
    I also specifically incorporate as a special condition of your
    probation all the gang related prohibitions that were in the previous
    - 21 -
    violation, or your previous order that the probation and parole puts
    on you. So that there’s not confusion, this is a special condition of
    probation. All those conditions that they put on you are going to
    be part and parcel of the order as a special condition of probation.
    (Emphasis added).
    I would find that, notwithstanding that the trial court did not expressly include any
    language in its written order pertaining to this “gang-related special condition,” the trial court
    was entitled to interpret the written order to include the above-mentioned special condition. See
    State ex rel. Moore v. Munchmeyer, 
    197 S.E.2d 648
    , 653 (W. Va. 1973) (“[T]his Court will
    construe a judgment order as sufficient although it does not contain specific adjudicatory
    language, if adjudicatory language is found in the opinion which is made part of the record by
    order. . . . ‘In construing a decree the intent of the court granting it will be looked to, and
    provisions may accordingly be sometimes implied. The decree will be construed and restricted
    in accordance with the pleadings and even with reference to other parts of the record.’” (quoting
    Beecher v. Foster, 
    66 S.E. 643
    , 645 (W. Va. 1909))). The gang-related provisions at issue here
    were originally imposed only by the probation officer, pursuant to her authority as such.
    However, after Watts’s first violation, the trial court thereafter orally adopted those provisions.
    The court stated that, going forward, those same provisions were now “part and parcel” of the
    trial court’s own probation revocation order. The trial court then memorialized this oral ruling in
    its written order, by stating that Watts would be placed on probation “under the same terms and
    conditions as previously ordered” and Watts “must comply with all the rules and requirements,
    set by the probation officer.” I would hold that the trial court was within its discretion to
    interpret its own written order to include the substance of the oral pronouncement.
    The majority makes several claims which I disagree with. First, the majority states that
    “[t]he circuit court found that the written revocation sentencing orders did not impose any
    gang-related probation conditions.” The majority then goes on to conclude that, even though the
    - 22 -
    written order did not contain the gang-related provisions, the trial court found that the oral ruling
    was sufficient to impose these conditions. I disagree with the majority’s framing of the record
    here, as the trial court actually determined that the written order did in fact contain reference to
    the gang-related probation provisions, albeit not expressly. The trial court did not purport to rely
    solely on the oral statements made at the September 8, 2021 hearing, but instead simply
    referenced those statements in interpreting the words of the written order. In doing so, the trial
    court found a textual anchor in the written order, namely, that: (1) the written order stated that
    Watts was placed on supervised probation “under the same terms and conditions as previously
    ordered” and (2) “[t]he defendant must comply with all the rules and requirements set by the
    probation officer.” The trial court read these express mandates as containing the oral
    pronouncements made by Judge Sandwich. In my view, the trial court’s interpretation falls
    squarely within the deference given to trial courts to interpret their own orders, and does not go
    beyond the bounds of reasonability, as a reasonable jurist could interpret the words “all the rules
    and requirements set by the probation officer” to include the former gang-related provisions that
    the probation officer had imposed during Watts’s initial period of probation. Watts simply states
    that the order was unambiguous and thus the inclusion of the oral statements was unreasonable.
    But the plain meaning of “previously ordered” could include the oral ruling at the hearing
    combined with the prior sentencing order. Judge Sandwich clearly and definitively stated in the
    presence of both parties that the gang member instructions were to be special conditions of
    probation, thereby clarifying any ambiguity as to whether the gang-related prohibitions were
    special conditions. These direct statements are more than the mere “subjective intentions” of a
    judge when entering a written order. Dir. of the Dep’t of Corr. v. Kozich, 
    290 Va. 502
    , 511
    (2015). Given the ambiguity contained in the subsequent written order, as well as the
    definitiveness of Judge Sandwich’s prior statements at the first revocation hearing, Watts fails to
    - 23 -
    establish why we should not defer to the trial court’s interpretation of the order following the
    first revocation hearing, incorporating the gang member instructions as a special condition of
    Watts’s probation.
    Next, the majority acknowledges that “[t]he presumption that a circuit court speaks only
    through its written orders can be rebutted by a record showing that a written order contains a
    clerical mistake or error due to oversight or inadvertent omission.” (citing Code § 8.01-428(B)).
    As a secondary matter, I would alternatively interpret the trial court’s ruling as a recognition that
    the September probation revocation order contained a clerical error, by omitting express
    language regarding the gang provisions, but that the trial court nonetheless corrected any such
    omission on the record by interpreting the September orders to include those provisions. The
    record reveals that the Commonwealth asked the court to continue the case so as to consider the
    September order in light of the oral comments made to Watts and his counsel at the hearing.
    This indicates that the Commonwealth recognized a potential textual deficiency in the order and
    brought the trial court’s attention to it. The fact that the trial court ultimately determined that no
    textual deficiency existed further supports deference to the trial court’s interpretation of its own
    order. And moreover, should this Court determine that the text of the order in fact does not
    contain language sufficient to contain the relevant gang-related provisions, the appropriate
    remedy here would be to remand to the trial court for clarification as to any potential clerical
    error. Our Court has recently recognized that we may, on appellate review, remand the case to
    the trial court for clarification, should we determine that a clerical error exists. See Greene v.
    City of Portsmouth, No. 1461-22-1, slip op. at 19 (Va. Ct. App. Mar. 19, 2024) (this day decided)
    (recognizing that clerical errors that “cause a final decree or the court’s record to fail to ‘speak
    the truth’” should be remanded to the trial court for correction). Thus, to the extent that the
    - 24 -
    written order is deficient, the appropriate remedy here is not to reverse Watts’s sentence, but
    instead to remand to the trial court for that court to determine if a clerical error exists.
    Finally, the majority cites Delaune v. Commonwealth, 
    76 Va. App. 372
     (2023), for the
    proposition that “[a] violation of a ‘special condition’ of probation is not necessarily a non-technical
    violation under Code § 19.2-306.1.” While I of course agree with this general proposition, in this
    particular case, Watts’s violation of the gang-related probation provisions is a special, non-technical
    violation because the trial court explicitly said so. The majority’s interpretation places undue
    significance on the probation officer’s role in administering probation and turns Code § 19.2-306.1
    on its head.
    It is the trial court, not the probation officer, that possesses the authority to specify the terms
    and conditions of a probationer’s probation. Probation is, after all, a tool for the trial court to deploy
    in order to help rehabilitate an offender. See Howell v. Commonwealth, 
    274 Va. 737
    , 740 (2007).
    Watts’s contrary interpretation of the statute would allow technical violation (v)—the requirement
    that a probationer “follow the instructions of the probation officer”—to swallow a trial court’s
    ability to set and enforce these types of gang-related conditions as special conditions of probation.
    The majority’s interpretation of the statute would turn any court-ordered provision into a probation
    officer’s “instruction” any time the probation officer directed or enforced such provision. This
    contravenes the traditional understanding of the trial court’s role in setting the terms and conditions
    of probation, as well as the court’s specific statutory authority reflected in Code § 19.2-303, which
    recognizes a trial court’s ability, after determining that a defendant was an active participant or
    member of a criminal street gang, to “place reasonable restrictions on those persons with whom the
    [defendant] may have contact.” The trial court’s order requiring Watts to comply with his probation
    officer’s gang-related prohibitions and incorporating that prohibition as a special condition of the
    - 25 -
    trial court is not a mere technical violation under Code § 19.2-306.1(A)(v), but the trial court’s own
    special condition.
    In coming to this conclusion, I would note several important caveats that are specific to
    this case. First, the facts of this case are unique, in that the trial court expressly adopted the
    gang-related prohibition as a special condition at the hearing. Therefore, there was no question
    of notice to the defendant.6 Next, though the language contained in the written order is
    “boilerplate,” the unique set of facts and context in this case support the trial court’s
    interpretation of that general language to contain the specific gang-related prohibition as the
    court’s own special condition. I would not view this as an invitation for the Commonwealth to
    utilize the same or similar boilerplate language in another case as a broad “catch-all” provision to
    conjure other special conditions cherry-picked from different portions of a transcript. Finally, I
    would reiterate that my interpretation would not alter or impinge upon the principles set out in
    Delaune, that: (1) the “General Assembly specifically defined ‘technical violation’ to include
    any ‘violation based on’ [the] specified conduct” contained in Code § 19.2-306.1(A); (2)
    determining whether a violation is technical in nature requires us to consider whether “the
    violation conduct matches the conduct listed in Code § 19.2-306.1(A)”; (3) Code
    § 19.2-306.1(A) “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”; and (4) the trial court
    cannot arrogate to itself the power to transform any conduct listed in Code § 19.2-306.1(A) from
    a technical violation into its own special condition. 76 Va. App. at 382-83. Here, the trial court
    has not transformed the conduct contained in subsection (v) of the statute into its own special
    condition. Rather, Watts’s strained construction of the statute attempts to transform the trial
    6
    On appeal, counsel for Watts admitted as much during oral argument.
    - 26 -
    court’s special condition regarding contact with gang affiliates into the probation officer’s
    instruction.
    Code § 19.2-306.1(A) does not define “technical violations” broadly, but instead
    specified a limited number of types of conduct that fall within the ambit. Further, the code
    section expressly recognizes that certain conduct may be proscribed by the trial court by creating
    “special conditions” unique to the offender. And these “special conditions” may include certain
    conduct that would not constitute a new law violation. In an instance like here, where both the
    trial court and the probation officer directed a certain special condition of probation, the
    probation officer’s concurrent direction cannot supersede the trial court’s direction and transform
    the violation into a technical violation under Code § 19.2-306.1(A)(v). That reading of the
    statute would turn the traditional nature and understanding of the administration of probation on
    its head. If the General Assembly meant to define all “non-new law violations” as technical
    violations, it could have done so; but it did not. I would therefore decline to adopt such a
    construction of the statute.
    Consequently, for all of these reasons, I would affirm Watts’s probation revocation
    sentence, or in the alternative, remand to the trial court to determine whether a clerical error had
    occurred. Therefore, I respectfully dissent.
    - 27 -
    

Document Info

Docket Number: 1132221

Filed Date: 11/6/2024

Precedential Status: Precedential

Modified Date: 11/6/2024