COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judges O’Brien and Causey Argued by videoconference
DAVID ANDREW ASH MEMORANDUM OPINION* BY v. Record No. 1742-23-1 JUDGE MARY GRACE O’BRIEN DECEMBER 30, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE H. Thomas Padrick, Jr., Judge Designate
Elena Kagan, Assistant Public Defender (Catherine French Zagurskie, Chief Appellate Counsel; Virginia Indigent Defense Commission, on briefs), for appellant.
Justin B. Hill, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
David Andrew Ash appeals the imposition of his previously suspended three-year sentence
after being found in violation of probation. He contends that this sentence exceeds the range
permitted by Code § 19.2-306.1 because it was for a good conduct violation that did not result in a
criminal conviction. He also challenges the court’s underlying finding that he violated the condition
of his suspended sentence relating to his waiver of his Fourth Amendment rights.
BACKGROUND
“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App.
529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). On appeal, we
* This opinion is not designated for publication. See Code § 17.1-413(A). consider the evidence “in the light most favorable to the Commonwealth, as the prevailing party
below.” Id.
In a February 9, 2018 order, pursuant to a plea agreement, the court convicted Ash of
possessing heroin with the intent to distribute as a second offense and sentenced him to six years of
imprisonment with three years suspended. The court also ordered Ash to complete three years of
supervised probation. The sentencing order specified conditions of Ash’s suspended sentence,
including the following:
The defendant shall waive any Fourth Amendment right against unreasonable searche[s] and seizures for a period [of] five (5) years as of today to-wit: the defendant shall submit to a person, place of residence, and property to [sic] search or seizure at any time of the day or night by any law enforcement officer with or without a warrant.
The plea agreement also contained the Fourth Amendment waiver.1
On April 27, 2023, the court issued a capias for Ash’s arrest for violating a condition of his
suspended sentence. At a subsequent revocation hearing, Officer Reinhardt of the Chesapeake
police testified that on July 21, 2022, he stopped a car driven by Ash. Using Ash’s identifying
information, Officer Reinhardt learned that Ash had waived his Fourth Amendment rights. After
advising Ash of the waiver, Officer Reinhardt asked to search the car. Ash responded that it was
not his car and he could not let the officer search it. The officer repeated the request and received
the same response. There was a female passenger in the car. When the officer asked for her name,
Ash told her not to talk, and she did not answer.
Ash eventually gave the car’s registration and insurance information to Officer Reinhardt.
The officer asked if Ash had any guns or drugs in the car, and Ash said no. The officer said,
1 The plea agreement waiver differed from the condition in the sentencing order in that it referred to Ash waiving his right against unreasonable searches and seizures of “his person, place of residence, and property.” (Emphasis added). -2- “[M]ind if I search you?” Ash asked if he had to allow the search. According to Ash, the officer
responded, “No, you don’t because I don’t want to violate your [Fourth] Amendment, your [First]
Amendment, and because I’m all about amendments and I don’t want nobody to violate mines [sic]
so I don’t want to violate yours.” Ash claimed he and the officer never discussed the Fourth
Amendment waiver, and he denied telling the officer that he “couldn’t consent to the search”
because the car was not his.
The court determined that Ash’s testimony was not credible and that, by refusing the search,
he had not complied with his Fourth Amendment waiver and had violated a condition of his
suspended sentence. The Commonwealth asked the court to impose “a significant portion” of the
three-year suspended sentence, based on Ash’s lengthy criminal record. Ash disputed the finding
that he was in violation but made no argument concerning sentencing; he merely stated that he
would “submit it to the court.” The court imposed the entirety of the previously suspended
three-year sentence.
ANALYSIS
I.
Ash contends that the alleged violation was of a “good conduct” condition and was
subject to the sentencing limitations of Code § 19.2-306.1. He acknowledges that he did not
raise this issue at the revocation hearing but argues that the sentencing order exceeded the court’s
authority and was therefore void ab initio. Alternatively, he asks this Court to apply the ends of
justice exception to Rule 5A:18.
Subject to certain conditions not at issue here, “in any case in which the court has
suspended the execution or imposition of sentence, the court may revoke the suspension of
sentence for any cause the court deems sufficient that occurred at any time within the probation
period, or within the period of suspension fixed by the court.” Code § 19.2-306(A). Appellate
-3- courts “have consistently held that the ‘revocation of a suspended sentence lies in the discretion
of the trial court and that this discretion is quite broad.’” Commonwealth v. Delaune, 302 Va.
644, 658 (2023) (quoting Peyton v. Commonwealth, 268 Va. 503, 508 (2004)).
“Code § 19.2-306(A) has always provided the ‘statutory authority for a circuit court to
revoke a suspended sentence.’” Heart v. Commonwealth, 75 Va. App. 453, 460 (2022) (quoting
Green v. Commonwealth, 75 Va. App. 69, 77 (2022)). “Code § 19.2-306(C) was ‘amended and
reenacted’ to provide that ‘[i]f the court, after hearing, finds good cause to believe that the
defendant has violated the terms of suspension, then the court may revoke the suspension and
impose a sentence in accordance with the provisions of § 19.2-306.1.’” Id. (alteration in
original) (quoting Green, 75 Va. App. at 78).
Code § 19.2-306.1, in turn, creates two tiers of probation violations: “(1) technical
violations, based on a probationer’s failure to do one of ten enumerated actions [in Code
§ 19.2-306.1(A)], and (2) non-technical violations.” Id. at 466. The statute “contains specific
limitations on sentencing that apply when a circuit court bases its revocation of a suspended
sentence on what the statute refers to as certain ‘technical violations’ enumerated in the statute.”
Green, 75 Va. App. at 75 (citing Code § 19.2-306.1). For a “first technical violation,” a court
“shall not impose a sentence of a term of active incarceration.” Henthorne v. Commonwealth, 76
Va. App. 60, 65 (2022) (quoting Code § 19.2-306.1(C)).
The sentencing limitations do not apply to non-technical violations. Shifflett v.
Commonwealth, 81 Va. App. 277, 291 (2024) (en banc). “Non-technical violations
include . . . ‘violat[ion of] another condition other than (i) a technical violation [in subsection
(A)] or (ii) a good conduct violation that did not result in a criminal conviction.’” Thomas v.
Commonwealth, 77 Va. App. 613, 622 (2023) (second and third alterations in original) (quoting
-4- Code § 19.2-306.1(B)). For non-technical violations, the court “may revoke the suspension and
impose or resuspend any or all of that period previously suspended.” Code § 19.2-306.1(B).
Ash contends that (1) the court found him guilty of a “good conduct violation that did not
result in a criminal conviction”; and therefore (2) the court was not permitted to “revoke the
suspension and impose . . . that period previously suspended” under Code § 19.2-306.1(B). He
did not present this argument to the trial court and therefore did not comply with Rule 5A:18.
He nevertheless seeks judicial review on the basis that the sentencing order was void ab initio.
A judgment that is void ab initio is one that exceeds the court’s “power to render” and, as
a result, has no legal effect. See Hannah v. Commonwealth, 303 Va. 106, 119-20 (2024). “[A]
sentence imposed in violation of a prescribed statutory range of punishment is void ab initio”
because a court lacks power to render a judgment of that character. Terry v. Commonwealth, 81
Va. App. 241, 251 (2024) (quoting Rawls v. Commonwealth, 278 Va. 213, 221 (2009)). An
order that is void ab initio “can be challenged for the first time on appeal because it is a judicial
nullity.” Id. at 250.
By contrast, a challenge to an order that is not void, but merely voidable, is subject to the
procedural rules of an appellate court. Hannah, 303 Va. at 120. “Voidable judgments are more
common and usually involve a court’s failure to comply with precedent or an applicable statute.”
Id. For appeals to this Court challenging voidable orders, the requirements of Rule 5A:18 apply.
Terry, 81 Va. App. at 250, 254 & n.4.
Both the Supreme Court and this Court have recently addressed the distinction between
void and voidable orders in the context of sentencing for probation violations. See Hannah, 303
Va. at 120-21 & n.5; Terry, 81 Va. App. at 250-52. We turn to these cases for guidance.
In Hannah, the Supreme Court relied on Rawls to reiterate that a sentencing order
imposing a punishment that exceeds the statutory maximum is beyond the trial court’s authority
-5- and is void ab initio. 303 Va. at 120-21 (citing Rawls, 278 Va. at 221). However, the Supreme
Court stated that this principle would not extend to revocation orders that impose a period of
incarceration in excess of the limitations in Code § 19.2-306(C). Id. at 121 n.5. The Court
reasoned that “[t]he penalty imposed for a probation violation is not a new sentence but an event
in the same criminal proceeding, a continuation of the original sentence with modifications
tailored to the defendant’s needs in the present moment.” Id.2
Our Court made the same distinction in Terry. There, the parties and the court proceeded
at a revocation hearing as if the conduct at issue “necessarily constitute[d] a non-technical
violation.” 81 Va. App. at 253. On appeal, the defendant argued that the violation was, in fact,
technical and thus governed by the sentencing limitations of Code § 19.2-306.1(C). Id. at 248.
The defendant acknowledged that he did not raise the issue at the revocation hearing but
contended that the active sentence imposed was void ab initio and therefore Rule 5A:18 did not
apply. Id. at 250.
We disagreed. Id. at 252-54. Using the rationale expressed in Hannah, and
distinguishing Rawls, this Court clarified the distinction between the punishment imposed at the
original sentencing and the effect of any subsequent reimposition of that original sentence at a
revocation proceeding. Id. The revocation proceeding is “a new sentencing event[,] but it is not
a new sentence.” Id. at 253 (alteration in original) (quoting Canty v. Commonwealth, 57
Va. App. 171, 179 n.9 (2010), aff’d, No. 102221, 2011 Va. LEXIS 253 (Oct. 7, 2011)). Accord
Cisneros v. Commonwealth, 82 Va. App. 147, 167-70 (2024).
2 We note that the Supreme Court in Hannah ultimately affirmed the sentence at issue under the prior version of Code § 19.2-306(C). 303 Va. at 122-23. There, the defendant’s drug use—which had given rise to the revocation proceeding—began before the probation statute’s amendment and reenactment, “requir[ing] [the Court] to apply the law in effect at the time of the offense.” Id. at 122. -6- Revocation sentencing orders that allegedly exceed the statutory limitations in Code
§ 19.2-306.1 are not void ab initio. The court’s order finding Ash in violation and imposing a
three-year sentence is “not activity ‘of a character that the court lacked power to render.’” Terry,
81 Va. App. at 254 (quoting Hannah, 303 Va. at 120). “[T]he alleged error would not render the
revocation order void ab initio.” Id. Therefore, Rule 5A:18 applies and provides as follows:
“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.”
Ash acknowledges that he did not object to his sentence at the revocation hearing but
argues that this Court should apply the “ends of justice” exception to Rule 5A:18.
“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”
Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth,
42 Va. App. 203, 219 (2004) (en banc)). Whether to apply the ends of justice exception involves
two questions: “(1) whether there is error as contended by the appellant; and (2) whether the
failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth
v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).
Here, we find no error as contended by Ash and have no basis for applying the ends of justice
exception to Rule 5A:18.
In Diaz-Urrutia v. Commonwealth, 77 Va. App. 182, 193 (2023), this Court found that “a
sentencing court must engage in a four-step process to classify the basis of the revocation
proceeding before determining what sentence it may impose.” “First, the court must determine
whether ‘the violation conduct matches the conduct [specifically] listed in Code
§ 19.2-306.1(A).’” Id. (alteration in original) (quoting Delaune v. Commonwealth, 76 Va. App.
-7- 372, 383 (2023)). “If so, then the defendant has committed a technical violation[,] and the
sentencing limitations found in Code § 19.2-306.1(A) apply . . . .” Id. at 194.
“If the violation conduct does not match the conduct listed in Code § 19.2-306.1(A), the
court must then determine whether ‘another condition,’ other than the generic good behavior
condition of the defendant’s suspended sentence[,] covers the conduct.” Id. “If so, then the
court’s sentencing authority is not restricted by Code § 19.2-306.1.” Id.
Third, “[i]f the defendant’s sentencing order contained no other condition matching the
violation conduct, then the court must determine whether the conduct resulted in a new criminal
conviction.” Id. “If so, then the court’s sentencing authority is not restricted by Code
§ 19.2-306.1.” Id. “Finally, if none of the above apply, then the court must determine whether
the defendant has engaged in substantial misconduct amounting to a good conduct violation.”
Id.3
We need reach only the second step in the Diaz-Urrutia analysis to classify Ash’s
violation of his suspended sentence. Refusal to comply with the terms of a Fourth Amendment
waiver is not included as an enumerated technical violation in Code § 19.2-306.1(A). In the
sentencing order, the court expressly conditioned Ash’s suspended sentence on his compliance
with the waiver of his Fourth Amendment rights. This waiver was effectively a special condition
of his suspended sentence articulated by the court. See Shifflett, 81 Va. App. at 291-94. By
refusing the search, Ash did not merely violate a “generic good behavior condition.”
Diaz-Urrutia, 77 Va. App. at 194.4 Therefore, upon finding Ash in violation of the waiver
3 The Court “decline[d] to opine on what sanction Code § 19.2-306.1 authorizes for a good conduct violation.” Diaz-Urrutia, 77 Va. App. at 194 n.4. 4 Although the judge used the phrase “violation of your good behavior” at the revocation hearing, the finding of guilt was based on Ash’s failure to comply with his Fourth Amendment waiver—a condition of his suspended sentence that was more restrictive than and thus distinct from the requirement to be of good behavior. Cf. Shifflett, 81 Va. App. at 291-94 (distinguishing -8- provision, the trial court’s sentencing authority was not restricted by Code § 19.2-306.1(C), and
the court had the discretion to “impose or resuspend any or all of that period previously
suspended.” Code § 19.2-306.1(B).
We thus reject any contention that the court erred as contended by Ash and find that the
ends of justice exception to Rule 5A:18 does not apply.5
II.
Ash also contends that the scope of the Fourth Amendment waiver contained in his plea
agreement—limited to his person, residence, or property—did not include the car he was driving
when he was stopped because the vehicle belonged to his wife. He contends that “[t]here is no
reasonable construction of [his] plea agreement that extends his Fourth Amendment waiver to
the property to others.” But Ash advanced a different argument in the trial court, challenging a
factual issue. Specifically, Ash disputed Officer Reinhardt’s testimony that Ash refused to allow
the search. According to Ash, he merely questioned whether he was required to submit to the
search. 6
Rule 5A:18—requiring an objection “with reasonable certainty at the time of the
ruling”—precludes our consideration of this issue. “The purpose of this contemporaneous
between technical and non-technical violations based on whether the court-ordered condition was “more restrictive” than Code § 19.2-306.1(A)). In classifying Ash’s violation, we are not bound by the judge’s words but must consider the full record. See id. 5 To decide this issue on the best and narrowest ground, see Commonwealth v. White, 293 Va. 411, 419 (2017), we do not address whether a court’s alleged miscategorization of a probation violation constitutes a grave injustice meriting application of the ends of justice exception. 6 We note that, in violation of an appellate court’s standard of review, the dissent accords no deference to the court’s finding that Ash’s testimony was not credible. See Elliott v. Commonwealth, 277 Va. 457, 462 (2009) (stating that “[t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence” and, accordingly, appellate courts “give deference to the fact finder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony”). -9- objection requirement [in Rule 5A:18] is to allow the trial court a fair opportunity to resolve the
issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v. Commonwealth,
64 Va. App. 185, 195 (2015). “Specificity and timeliness undergird the
contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to
resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not just any
objection will do. It must be both specific and timely—so that the trial judge would know the
particular point being made in time to do something about it.” Id. (quoting Dickerson v.
Commonwealth, 58 Va. App. 351, 356 (2011)). If a party fails to object timely and specifically,
he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 641 (2009).
Because Ash did not raise the same argument in the trial court as he asserts on appeal, he waived
this claim.
Ash asks this Court to invoke the ends of justice exception to Rule 5A:18 to reach the
merits of his argument concerning the sufficiency of the evidence. As stated above, we apply
this exception sparingly, and it requires us to consider the alleged error and the risk of a grave
injustice. Bass, 292 Va. at 27. “[T]o show that a miscarriage of justice has occurred, thereby
invoking the ends of justice exception, the appellant must demonstrate that he or she was
convicted for conduct that was not a criminal offense or the record must affirmatively prove that
an element of the offense did not occur.” Quyen Vinh Phan Le v. Commonwealth, 65 Va. App.
66, 74 (2015) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221-22 (1997)).
Even accepting Ash’s assertion that the waiver applied only to his own person or
property, the evidence still showed that he was in violation. Ash testified that the officer said,
“[M]ind if I search you.” (Emphasis added). Ash did not agree to a search of his person.
Because the record thus demonstrates that Ash did not comply with his Fourth Amendment
- 10 - waiver, he has failed to establish that a miscarriage of justice occurred, and we do not apply the
ends of justice exception to Rule 5A:18.
CONCLUSION
Accordingly, we affirm the circuit court’s judgment.
Affirmed.
- 11 - Causey, J., dissenting.
The separation of powers outlined in the Constitution of the Commonwealth of Virginia
dictates, simply, that the judicial branch interprets the laws enacted by the General Assembly.
See Brown v. Commonwealth, 75 Va. App. 388, 402-03 (2022). The General Assembly enacted
laws that placed limitations on sentences upon revocation of suspension of sentences. The
purpose of the new laws was specifically to limit the sentencing power of the circuit court. The
majority holds that Ash did not object to being sentenced in excess of the statutorily prescribed
maximum range of punishment and that, therefore, he waived his rights to the statutory
revocation limitations. I would hold that statutory protections, particularly revocation
limitations, cannot be waived by a defendant because those statutes were enacted for their
protection. Therefore, I respectfully dissent.
The Fourteenth Amendment states in part, “nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. While some rights can be
knowingly and voluntarily waived (e.g., right to a jury trial, right to counsel), others are
considered non-waivable (e.g., subject matter jurisdiction). Hence, I would hold that certain
legal protections are inalienable and cannot be waived without compromising the integrity of the
legal process. Especially, when those legal protections aid in maintaining justice, due process,
and fairness in the legal system.
Statutory protections such as those in Code § 19.2-306.1 are designed to ensure the right
to due process and fairness in the legal system. Considering statutory protections such as Code
§ 19.2-306.1 waivable undermines the purpose of the statute: revocation limitations. When
interpreting a statute, courts “are required to ‘ascertain and give effect to the intention of the
legislature,’ which is usually self-evident from the statutory language.” Va. Polytechnic Inst. &
- 12 - State Univ. v. Interactive Return Serv., 271 Va. 304, 309 (2006) (quoting Chase v.
DaimlerChrysler Corp., 266 Va. 544, 547 (2003)). The revocation limitations are self-evident
and can be found in Code § 19.2-306.1. Specifically, applicable to this case, Code
§ 19.2-306.1(B), states:
If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, or has violated another condition other than (i) a technical violation or (ii) a good conduct violation that did not result in a criminal conviction, then the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.
The court found Ash in violation of the terms and conditions of his suspended sentence or
probation. Ash had no new convictions or criminal charges. Ash was found to have violated
another condition (the “good behavior” condition) for actions that did not result in a criminal
conviction. This violation can only reasonably be classified, under Code § 19.2-306.1(B), as a
“good conduct” violation that did not result in a criminal conviction. See Diaz-Urrutia v.
Commonwealth, 77 Va. App. 182, 192 (2023) (“Although we ordinarily interpret different words
used by the legislature to carry different meanings, good conduct and good behavior do not have
materially different ordinarily understood definitions and there is simply no rational way to
distinguish their meanings.”). At the revocation hearing, the Commonwealth’s Attorney
repeatedly argued that the judge should find Ash in violation of his “good behavior condition” or
“good behavior provision” due to a “good behavior violation.” In announcing his decision, the
circuit court judge specifically found Ash “in violation of your good behavior.” Thus, Ash’s
probation violation fits squarely into the category described in Code § 19.2-306.1(B)(ii).
The phrasing of the statutory provision in Code § 19.2-306.1(B)(ii) indicates that it is
setting specific conditions under which the court has discretion to act. The clause, “other than,”
indicates a strict requirement: both the types of violations described in (i) and (ii) must be - 13 - excluded for the court to have the authority to revoke the suspension. Only if both of those
conditions are excluded may the court choose to revoke the suspension entirely, resuspend any
portion of it, or impose the suspended penalty again. Since Ash met condition (ii) the court
lacked the authority to revoke or modify his suspension.
The majority rejects the arguments of counsel and the finding of the circuit court judge
based solely on Ash’s revocation sentence. The majority holds that the judge miscategorized the
probation violation and rewords the court’s finding as “effectively a special condition” instead of
adhering to the judge’s explicit finding of a “good behavior violation.” In doing so, the majority
reaches beyond our appellate role.
After a careful review of Code § 19.2-306.1, I have yet to find where the General
Assembly, in its limitation of a circuit court’s power to revoke a suspended sentence, allows for a
revocation for a violation of a special condition that is not explicitly found by the circuit court.
Here, the circuit court found only a violation of good behavior. Currently, there is no prescribed
penalty for this type of violation. Our Supreme Court held “that a sentence imposed in violation
of a prescribed statutory range of punishment is void ab initio because ‘the character of the
judgment was not such as the [C]ourt had the power to render.’” Rawls v. Commonwealth, 278
Va. 213, 221 (2009) (alteration in original) (quoting Anthony v. Kasey, 83 Va. 338, 340 (1887)).
Code § 19.2-306.1(B)(ii) does not give the court the power to prescribe any punishment for the
violation it found Ash to have committed. Thus, any punishment imposed is void ab initio
because that punishment is in violation of the prescribed statutory range of punishment.
“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be
reversed unless there is a clear showing of abuse of discretion.’” Green v. Commonwealth, 75
Va. App. 69, 76 (2022) (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)). This
Court does not have the ability to rewrite the findings of the circuit court. We must take the
- 14 - record as the record. Ash was found guilty of a “good behavior” violation which did not result in
a new criminal conviction. Because there was no new criminal conviction, the court was
required to do further inquiry or analysis to classify the actions of the probationer. Diaz-Urrutia,
77 Va. App. at 193-94.
The circuit court’s sentence was improper, given the required Diaz-Urrutia analysis.
When determining how to classify a probationer’s actions for purposes of a revocation
proceeding, the circuit court must engage in a four-step analysis prescribed by Diaz-Urrutia. Id.
Ash’s interaction with the police was not expressly articulated by the court as a technical
violation. The majority contends that the analysis should therefore stop at the second step of the
Diaz-Urrutia analysis. To stop at step two, the majority assumes the court found the Fourth
Amendment waiver was a “special condition” from the initial sentencing order. This finding by
the majority of a “special condition” is in error. The circuit court found in fact that Ash was in
violation of his “good behavior” condition. There is no evidence that the trial court abused its
discretion by explicitly finding that Ash violated the good behavior condition of his probation.
Thus, just as we have said that a factfinder’s “findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion,” Green, 75 Va. App. at 76, it is necessary
here to emphasize that an explicit finding reached by a trial court—especially when not shown to
have been reached via an abuse of discretion—shall not be ignored or recategorized. Assuming
that Ash’s violation was a “special condition” violation is in error.
The second step of the mandatory Diaz-Urrutia analysis states that “the court must [after
determining that the conduct does not match that enumerated in Code § 19.2-306.1(A)]
determine whether ‘another condition,’ other than the generic good behavior condition of the
defendant’s suspended sentence[,] covers the conduct.” Diaz-Urrutia, 77 Va. App. at 194. Here,
the record shows that the circuit court conducted this analysis and made the exact finding
- 15 - contemplated by Diaz-Urrutia: that the most proper way to classify Ash’s conduct was according
to “the generic good behavior condition” of his probation. Id. The Commonwealth’s Attorney
argued for this outcome and the court accepted it, explicitly finding Ash “in violation of your
good behavior.” The next step outlined in Diaz-Urrutia, was to proceed to the third step of the
analysis, in which “the court must determine whether the conduct resulted in a new criminal
conviction” and if not, “the court must determine whether the defendant has engaged in
substantial misconduct amounting to a good conduct violation.” Id. Ash’s conduct did not result
in a criminal conviction; his violation, again, was classified as a “good behavior” violation,
which, as previously mentioned, is indistinguishable from “good conduct.” The legislature has
not prescribed a specific punishment range for good conduct violations not resulting in new
criminal convictions, but, as discussed above, has expressly restricted the court’s authority to
revoke or modify the suspension. Thus, the circuit court committed clear error in going beyond
the statutory sentencing limitations of Code § 19.2-306.1(B)(ii) by revoking Ash’s suspended
sentence. Courts have consistently held that the imposition of a sentence beyond the statutory
maximum violates fundamental principles of justice and due process. See Rawls, 278 Va. at 221.
Such an error must be considered non-waivable because it implicates the core rights of the
defendant to be sentenced lawfully. For the majority to essentially find a way for a good
behavior violation to also be a violation of a special condition is error.
This error has substantially affected the rights and procedural safeguards that the statute
put in place for the purpose of ensuring fairness and due process for probationers like Ash. This
error has thus resulted in a miscarriage of justice.
- 16 - Rawls, Hannah, Terry, Cisneros, and Minh Duy Du
The majority goes through a litany of cases that are all distinguishable from the case at
bar. In this case, Code § 19.2-306.1 clearly mandates what is required when “(ii) a good conduct
violation that did not result in a criminal conviction” occurs.
Rawls (2009) is not a probation violation case, but supports the principle that sentencing
in excess of a statutorily prescribed maximum range of punishment requires a new sentencing
hearing. 278 Va. at 221. Although Hannah was decided in 2024, the violations involved in that
case were committed before the enactment of the updated version of the statutory probation
scheme—the court explicitly rejected the defendant’s arguments on this ground. Hannah v.
Commonwealth, 303 Va. 106, 122 (2024) (“Because the penalty applied was the penalty in
existence at the time of the offense, the judgment was of a character the court was able to
render.”). Thus, the revocation violations in Hannah are not applicable to the statute at issue.
Additionally, Hannah was not analyzed based on the current case law requirements of
Diaz-Urrutia. See generally id.
In Terry (2024), the court emphasized that “the parties and the court” below “operated
under the belief that [the violation in question] . . . constitutes a non-technical violation.” Terry
v. Commonwealth, 81 Va. App. 241, 253 (2024). Here, in contrast, the Commonwealth’s
Attorney explicitly argued, and the court found, that Ash was in violation of a “good behavior”
condition of his probation—and the only way to uphold Ash’s sentence is to set aside what the
parties argued and the court found below. Similarly, in Shifflett (2024), the court’s explicit
finding was that the defendant had violated a “special condition” of his probation. Shifflett v.
Commonwealth, 81 Va. App. 277, 287 (2024).
Cisneros (2024) did not involve the explicit limitations of Code § 19.2-306.1, but the
general sentencing provisions of Code § 19.2-306. Cisneros v. Commonwealth, 82 Va. App. 147
- 17 - (2024). Consequently, none of these cases confronted an explicit finding that one of the
situations delineated in § 19.2-306.1 had occurred (that there had been a good conduct7 violation,
and no criminal conviction), accompanied by a sentence in disregard of the applicable statutory
constraint. Thus, Ash is a case of first impression. I would hold that the legislature has restricted
the court’s power to prescribe punishment outside the statutory range where the court finds that
no non-technical or special violation has occurred, but explicitly finds a good conduct violation.
The majority attempts to add another category to Code § 19.2-306.1: “effectively a special
condition.” But there is no need to create this category. The statute clearly lists “good conduct
[behavior] violation” as a separate category, with no jail time.
As the majority states, a judgment is void ab initio8 when it exceeds the court’s “power to
render” judgment and thus has no legal effect. Rawls, 278 Va. at 221. Here, the order “imposed
in violation of a prescribed statutory range of punishment is void ab initio,” as the court did not
have the authority to render such a judgment. Id. “Deeming an order void ab initio effectively
sidelines procedural default principles, including Rule 5A:18’s requirement that arguments on
appeal seeking to overturn a trial court order must first be presented and ruled upon by the trial
court.” Winslow v. Commonwealth, 62 Va. App. 539, 544 (2013). As here, when a circuit
court’s sentence exceeds the statutory maximum, “the trial court must conduct a new sentencing
hearing to permit the sentencing entity . . . to impose a lawful sentence.” Commonwealth v.
Watson, 297 Va. 355, 360 (2019). This should happen in the present case. The majority
circumnavigates this due process violation by relying on Terry’s interpretation of Rawls,
contending that a new sentencing hearing was not needed because, in their view, a revocation
As we said in Diaz-Urrutia, there is “simply no rational way to distinguish the[] 7
meanings” of the terms “good behavior” and “good conduct.” 77 Va. App. at 192. 8 Our Supreme Court has held that a “judgment which is void ab initio is a judgment so affected by a fundamental infirmity that it is no judgment at all.” Hannah, 303 Va. at 119. - 18 - hearing is not a new sentence, but merely a new sentencing event; therefore, Ash waived any
right to challenge his sentence. I disagree. Because Ash’s revocation order was void ab initio,
Rule 5A:18’s procedural default rules do not apply.
The majority’s analysis first relies on Hannah, interpreting Rawls, to assert that the
established principle of a sentencing order being void ab initio when it imposes a punishment
that goes beyond the statutory maximum, is inapplicable to the limitations of Code § 19.2-306
because “[t]he penalty imposed for a probation violation is not a new sentence but an event in the
same criminal proceeding, a continuation of the original sentence with modifications tailored to
the defendant’s needs in the present moment.” 303 Va. at 121 n.5. This is a misapplication of
Hannah. In fact, Hannah exclusively discusses probation revocation cases where probationers
have suspended sentences revoked for subsequent criminal convictions, referencing both Grant
v. Commonwealth, 223 Va. 680 (1982), and Green v. Commonwealth, 263 Va. 191 (2002), which
are plainly distinguishable from the case at bar where no such conviction happened.9 All of
these relevant cases predate Code § 19.2-306.1 and Diaz’s required analysis. Because these
cases’ analyses were not constrained by the current statutory scheme governing sentencing
limitations, their persuasive value in analyzing Code § 19.2-306 is questionable at best.
Rawls stands for the principle that a court’s order is void ab initio because it did not have
the authority to impose it.10 The General Assembly can circumscribe a court’s sentencing power
and did so with Code § 19.2-306. Terry states that “the statutory scheme [of Code § 19.2-306]
governing sentence suspensions clearly does not confer any additional sentencing power on the
9 Grant v. Commonwealth was an appeal of a revocation following a criminal conviction for drug distribution charges where the circuit court imposed an active sentence. 223 Va. at 682. Green v. Commonwealth was an appeal of a revocation following a criminal conviction of felony assault of a law enforcement officer. 263 Va. at 193. 10 See Rawls, 278 Va. at 221. - 19 - courts,” 81 Va. App. at 253, but the statute clearly restricts the court’s sentencing power. Where
a court was originally able to give a sentence up to the statutory maximum, and make that
sentence all active, or suspend all of it at a revocation hearing, after Code § 19.2-306.1, the court
no longer has that authority. Therefore, Code § 19.2-306.1 limits the court’s power to sentence,
and “circumscribes our courts’ power to punish.” Hannah, 303 Va. at 121.
The majority then, using Terry, recites that the circuit court going beyond the limitations
of Code § 19.2-306 is permitted in that imposing the sentence is “not activity ‘of a character that
the court lacked power to render.’” 81 Va. App. at 254 (quoting Hannah, 303 Va. at 120). I
disagree. To assert that a circuit court acting outside of the sentencing limitations of a statute
designed to limit a court’s sentencing ability does not render such a judgment a “violation of a
prescribed statutory range of punishment” is either a conclusion based in contradiction or a
fundamental misunderstanding of the purpose of the statute. Rawls, 278 Va. at 221.
The most guiding case from our Supreme Court on sentencing authority is Minh Duy Du
v. Commonwealth, 292 Va. 555, 564-65 (2016), which stands for the following principles:
A Virginia trial court “clearly” acts within the scope of its sentencing authority “when it chooses a point within the permitted statutory range” at which to fix punishment. Alston v. Commonwealth, 274 Va. 759, 771 (2007). In cases where the argument on appeal is simply a challenge to the duration of imprisonment, we have consistently held that the sentencing statutes define the outer boundaries of the bell-shaped curve of reasonableness. Consequently, “when a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion.” Id. at 771-72 (quoting Abdo v. Commonwealth, 218 Va. 473, 479 (1977)). In this respect, our view adheres to the “general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” Dorszynski v. United States, 418 U.S. 424, 431 (1974).
If Minh Duy Du prescribes our response when Virginia trial courts act within the scope of their
sentencing authority, it also implies what appellate courts should do when trial courts act outside - 20 - the scope of their sentencing authority. In other words, the converse of Minh Duy Du must be
true. Clearly, a circuit court is acting outside the scope of its sentencing authority when it
chooses to exceed the permitted statutory range at which to fix punishment. Sentencing statutes
define the boundaries of the circuit court. Consequently, when the sentence does exceed that
maximum, the sentence will be overturned as an abuse of discretion. In this respect, this Court’s
view must adhere to the general proposition that once it is determined that a sentence is not
within the limitation set forth in the statute under which it is imposed, appellate review is
mandatory.
The “ends of justice” and “plain error” doctrines are applicable.
Ash’s circumstances clearly rise to the narrow “ends of justice” exception to Rule 5A:18.
To meet this threshold, “the Commonwealth’s evidence [must have] either proved that an
essential element of the offense had not occurred or . . . the defendant was convicted for conduct
that was not criminal.” Redman v. Commonwealth, 25 Va. App. 215, 222-23 (1997). Here, Ash
was obviously not convicted or charged with any crime. Ash was sent back to prison without a
finding of criminal conduct, contrary to the explicit constraints of the statute—an injustice that is
materially equivalent to a defendant being convicted of non-criminal conduct. Additionally, the
Commonwealth’s own evidence clearly showed that he did not commit an essential element of
his alleged good behavior violation; the purported violation involved an alleged failure to
consent to search the property of another, which Ash did not have the right to do. Ash’s Fourth
Amendment waiver was limited to him. Our appellate courts have been steadfast in holding that
sentencing orders which contain Fourth Amendment waivers are limited to the scope of those
waivers. See Anderson v. Commonwealth, 256 Va. 580, 586 (1980) (interpreting the scope of
Anderson’s waiver based on the wording of his signed plea agreement); Commonwealth v.
Bowen, No. 0427-21-4, slip op. 2-3, 2021 Va. App. LEXIS 183, at *3 (Oct. 14, 2021) (same);
- 21 - Williams v. Commonwealth, No. 0811-19- 2, slip op. 7-8, 2020 Va. App. LEXIS 163, at *9 (June
2, 2020) (same); Moon v. Commonwealth, No. 0667-22-3, slip op. 6-7, 2023 Va. App. LEXIS
447, at *9 (July 11, 2023) (same). As such, both prongs of the ends of justice exception are met.
Additionally, as discussed below, plain error has occurred.
The plain error doctrine should be applied where there is “(1) error, (2) that is plain, (3)
that is substantial and (4) . . . seriously affects the fairness, integrity and public reputation of the
judicial system.” Banks v. Mario Indus., 274 Va. 438, 451 (2007) (alteration in original); United
States v. Lawhorne, 29 F. Supp. 2d 292 (E.D. Va. 1998). Overall, our rules establish that
appellate courts generally do not consider errors not raised at trial unless there is plain error
affecting substantial rights. See Rule 5A:18. Here, Ash’s liberty—his substantial rights—were
affected by error and this Court must exercise discretion to correct that error, as it resulted in a
miscarriage of justice that has seriously affected the fairness, integrity, and public reputation of
the judicial system. The circuit court explicitly found Ash guilty of a good behavior violation
resulting in no new criminal conviction, and sentenced him to jail time outside the maximum
statutory punishment for the offense. Code § 19.2-306.1(B)(ii) must be followed because to do
otherwise, questions the fairness, integrity, and public reputation of the judicial system. The
statute’s purpose is a non-waivable procedural statutory safeguard designed to protect and ensure
fairness and due process.
Sentences imposed outside the statutory limitations of Code § 19.2-306.1 are clear error
by the trial court. They are also actions of a character “not such as the [C]ourt had the power” to
impose. Rawls, 278 Va. at 221 (alteration in original) (quoting Kasey, 83 Va. at 340). Ash did
not and cannot have waived proper sentencing pursuant to the law. A person’s liberty is not
waivable. Where liberty is at stake, statutes must be followed. Both the defendant’s rights and
- 22 - the integrity of the legal process are fundamentally important to maintaining justice and fairness
in the legal system of Virginia.
Statutory revocation limitations, particularly for probation violations, should not be
waivable by a defendant because the statutory limitations are intended to protect both the
defendant’s rights and the integrity of the legal process. The limitations of Code
§ 19.2-306.1(B)(ii) are mandatory and should be strictly followed.
Therefore, I would hold the circuit court wrongly imposed incarceration in violation of
Code § 19.2-306.1(B)(ii) for a “good conduct [behavior] violation” that did not result in a
criminal conviction. I would find that the sentencing order is void ab initio, reverse, and remand
to the circuit court.
- 23 -