Edgar Alexander Diaz-Urrutia v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 4, 2023
• Docket: 0502224
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Huff and AtLee PUBLISHED

Argued by videoconference

EDGAR ALEXANDER DIAZ-URRUTIA OPINION BY v. Record No. 0502-22-4 JUDGE ROBERT J. HUMPHREYS APRIL 4, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY J. Bruce Strickland, Judge

Timothy W. Barbrow (Law Office of Timothy W. Barbrow, on brief), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Appellant, Edgar Alexander Diaz-Urrutia appeals from the decision of the Stafford

County Circuit Court revoking his suspended sentence for his conviction for abduction and

imposing two years of active incarceration. Diaz-Urrutia contends that his violation of a

no-contact condition of his suspended sentence was a good conduct violation that did not result

in a criminal conviction and that, accordingly, Code § 19.2-306.1 prohibited the circuit court

from imposing any period of active incarceration.

BACKGROUND

On May 18, 2016, Diaz-Urrutia pleaded no contest to abduction and rape in the Circuit

Court of Stafford County. The circuit court sentenced Diaz-Urrutia to twenty years’

incarceration for the rape conviction, with no time suspended, and ten years’ incarceration for the

abduction conviction, with all ten years suspended. The circuit court ordered Diaz-Urrutia to

participate in supervised probation upon his release from confinement. Additionally, Diaz-Urrutia’s suspended sentence was conditioned upon his being of good behavior for forty

years. Finally, the circuit court specifically ordered that Diaz-Urrutia “have no contact with the

victim” as a special condition of his suspended sentence.

In February 2019, the Commonwealth alleged that Diaz-Urrutia, while still incarcerated

(and thus, before beginning his term of supervised probation), contacted the victim. In August

2021, Diaz-Urrutia appeared before the circuit court and admitted he contacted the victim in

violation of the sentencing order. The circuit court clarified that the proceeding did not involve a

probation violation because Diaz-Urrutia’s probation had not yet begun, but instead involved a

violation of the conditions of his suspended sentence.

At his revocation hearing, all parties assumed that Code § 19.2-306.1 applied to the

proceeding.1 As such, Diaz-Urrutia argued that by contacting the victim, he violated the good

conduct condition of his suspended sentence and that, under Code § 19.2-306.1, because it was

his first good conduct violation, the circuit court could not impose any active incarceration. The

circuit court disagreed and stated that “[b]ased on everything, and noting most specifically that

this was a very serious criminal charge and that no contact was a special condition of the

suspended time, I revoke all ten years and resuspend eight years.” The circuit court revoked the

suspended ten years and resuspended eight years. Diaz-Urrutia now appeals from that judgment.

1 In Green v. Commonwealth, 75 Va. App. 69 (2022), this Court held that the sentencing provisions of Code § 19.2-306.1 do not apply retroactively to conduct predating the effective date of that section. The Commonwealth on appeal argues that we should affirm the circuit court on that basis. However, we have since repeatedly held that where the Commonwealth elects to proceed under Code § 19.2-306.1 at the circuit court, it is bound by that election and may not take the opposite position on appeal. See Delaune v. Commonwealth, 76 Va. App. 372, 378-79 (2023); Heart v. Commonwealth, 75 Va. App. 453, 465 (2022). Here the Commonwealth affirmatively argued that Code § 19.2-306.1 applied; we will not permit it to take the contrary position on appeal. -2- ANALYSIS

Diaz-Urrutia’s appeal challenges the circuit court’s statutory interpretation of Code

§ 19.2-306.1. While Diaz-Urrutia concedes that he violated a condition of his suspended

sentence, he contends that the violation was only a “good conduct” violation. As such,

Diaz-Urrutia argues that Code § 19.2-306.1 did not authorize the circuit court to revoke his

suspended sentence or impose any active time.

Code § 19.2-303 provides that “[a]fter conviction, whether with or without jury, the court

may suspend imposition of sentence or suspend the sentence in whole or part and in addition

may place the defendant on probation under such conditions as the court shall determine.”

Pursuant to this section, a circuit court may “impose such reasonable terms and conditions of

probation as it deems appropriate.” Murry v. Commonwealth, 288 Va. 117, 122 (2014) (citing

Dyke v. Commonwealth, 193 Va. 478, 484 (1952)). “The only statutory limitation on the court’s

exercise of its discretion is ‘one of reasonableness.’” Id. (quoting Anderson v. Commonwealth,

256 Va. 580, 585 (1998)).

Code § 19.2-306(A) allows courts to “revoke the suspension of sentence for any cause

the court deems sufficient that occurred at any time . . . within the period of suspension fixed by

the court.” Code § 19.2-306(C) explains 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.”

In 2021, the General Assembly enacted Code § 19.2-306.1, which limited the ability of a

court to revoke suspended sentences for certain violations. In relevant part, Code

§ 19.2-306.1(B) reads:

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 -3- 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.

(Emphasis added.)

In other words, if the defendant has been convicted of a new criminal offense, then the

court may “revoke the suspension and impose or resuspend any or all of that period previously

suspended.” Additionally, the court may revoke the suspension and impose any or all of the

previously suspended sentence if the basis of the violation is “another condition,” i.e. a special

condition, that is not an enumerated technical violation or a good conduct violation that does not

result in a new criminal conviction.2

If a condition of a suspended sentence is one of the enumerated technical conditions, then

Code § 19.2-306.1 specifically limits what the court may do: for a first violation, no term of

active incarceration may be imposed. See Heart v. Commonwealth, 75 Va. App. 453, 465

(2022). For a second violation, the court may impose no more than fourteen days of active

incarceration, and then only if the court first finds that the defendant cannot be safely diverted

from active incarceration. For a third or subsequent violation, the court is not limited in what

active sentence it may impose.

However, Code § 19.2-306.1 is silent as to what the court’s revocation and sentencing

options are if the defendant has violated a condition that is a “good conduct violation that did not

result in a criminal conviction.” Whatever restrictions, if any, Code § 19.2-306.1 imposes on a

sentencing court’s authority to revoke a suspended sentence for a good conduct violation, those

2 Prior to the effective date of Code § 19.2-306.1, the nature of the violation did not impose any restrictions on the court’s authority to revoke a suspended sentence and impose a term of active incarceration. -4- restrictions are only triggered when “the basis of a violation of the terms and conditions of a

suspended sentence” is a good conduct violation. Code § 19.2-306.1(B) (emphasis added).

First, “[w]hen construing a statute, our primary objective is ‘to ascertain and give effect

to legislative intent,’ as expressed by the language used in the statute.” Cuccinelli v. Rector &

Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281

Va. 414, 418 (2011)). We “presume that the legislature chose, with care, the words it used when

it enacted the relevant statute.” Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337

(2011). Additionally, the probation statutes are highly remedial and should be liberally

construed to provide trial courts a valuable tool for rehabilitation of criminals. Dyke, 193 Va. at

484.

For whatever reasons the General Assembly may have had, the application of the

commonly used principles the courts of the Commonwealth use to construe statutes render it

difficult to avoid an absurd result in discerning the legislative intent from the language of this

statute.

Other than technical violations, the plain language of the statute only limits the

sentencing court’s power if “the basis of a violation . . . [is] a good conduct violation.” Code

§ 19.2-306.1(B). The plain language of the statute therefore indicates that so long as there is

“another condition other than” the implied good conduct condition that has been violated, then

the sentencing court is simply not constrained by the statute because the “basis of [the] violation”

is “another condition,” not a good conduct violation. See Basis, New Oxford American

Dictionary (3d ed. 2010) (“The justification for or reasoning behind something.”).

In Delaune v. Commonwealth, 76 Va. App. 372, 381 (2023), we held that a “technical

violation” is “a violation based on the probationer’s failure to” do any of a list of enumerated

things specifically defined as such. Code § 19.2-306.1(A). Accordingly, if a “special condition”

-5- required a probationer to do something that was covered by the enumerated list of technical

violations, the violation would nonetheless be considered a technical violation, not a special

condition because the violation would be “based on the probationer’s failure” to do one of the

listed technical conditions. See Delaune, 76 Va. App. at 383 (holding that a sentencing court’s

condition that the probationer remain “drug free” was a technical violation, not a special

condition). In other words, a sentencing court may not immunize its suspended sentences from

the reach of Code § 19.2-306.1 by crafting “special conditions” that encompass conduct defined

by the statute as a “technical violation.”

Good conduct violations, however, are different than technical violations. The phrase

“good conduct” is not defined by the Code in reference to a specific list of enumerated conduct.

On the other hand, “good behavior” is a long standing and well understood term of art commonly

used as a condition of the suspension of sentences. In Marshall v. Commonwealth, 202 Va. 217,

220 (1960), the Virginia Supreme Court held that “‘good behavior’ qualifies the power to

suspend . . . and that good behavior is a condition of every suspension, with or without probation,

whether expressly so stated or not.” In Marshall, the Court held that the “failure of a defendant

to be of good behavior, amounting to substantial misconduct, during the period of suspension

would provide reasonable cause for the revocation of the [sentence].” Id. at 220-21. In Holden

v. Commonwealth, 27 Va. App. 38, 42 (1998), this Court explained that the good behavior

condition encompassed “iniquitous, but not necessarily illegal, conduct.” What is clear from

these cases is that the good behavior condition of a suspended sentence is designed to

“rehabilitate and to encourage a convicted defendant to be of good behavior,” without reference

to specifically prohibited or mandated conduct. Hamilton v. Commonwealth, 217 Va. 325, 328

(1976).

-6- However, the General Assembly chose not to use “good behavior” in Code § 19.2-306.1

as that phrase has been long understood, opting instead for “good conduct.”3 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. Compare Conduct, New Oxford

American Dictionary, supra (“[T]he manner in which a person behaves.”), with Behavior, id.

(“[T]he way in which one acts or conducts oneself.”).

Moreover, in discerning the intent of the General Assembly, we think it significant that

the conduct statutorily defined as technical violations are specific requirements imposed on all

probationers supervised by probation officers, who are employees of the executive branch of

government and not by judges whose task is to focus on the individual defendant and “to balance

the appropriate punishment for the crime committed with the available rehabilitative alternatives

to incarceration and the protection of the lives and property of the community if the defendant is

not isolated from it.” Fazili v. Commonwealth, 71 Va. App. 239, 250 (2019) (collecting cases).

Therefore, unlike technical violations, whether a defendant’s conduct amounts to a good

behavior violation is not determined by reference to an enumerated list of required or prohibited

conduct, but rather by the sentencing court’s determination that the defendant has engaged in

some generic and not otherwise specified “substantial misconduct.” Marshall, 202 Va. at 220.

In harmonizing the statutory changes with our Supreme Court’s decision in Marshall, we

conclude that the good behavior/good conduct condition is a generic condition implicit in, and

applicable to all suspended sentences such that “substantial misconduct” risks the revocation of

their suspended sentence if the sole condition that covers the defendant’s conduct is the generic

3 Although the phrase “good conduct” appears elsewhere in the Code, the phrase is used in the context of “good conduct allowance credits” for the Virginia Parole Board and has no relation to the revocation of a suspended sentence. Code § 53.1-200 et seq. -7- condition that the defendant be of good behavior. In other words, if a sentencing court has

fashioned a condition of a suspended sentence that specifically covers the defendant’s conduct

that prompted the revocation proceeding, then that condition is—by definition—not a good

conduct violation. Such conduct would instead be a violation of “another condition,” e.g. a

special condition.

Accordingly, 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).” Delaune, 76 Va. App. at 383. If so, then the defendant has committed a

technical violation and the sentencing limitations found in Code § 19.2-306.1(A) apply,

regardless of whether the sentencing court included that conduct as “another condition” of the

defendant’s suspended sentence. 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. If

so, then the court’s sentencing authority is not restricted by Code § 19.2-306.1. If 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. If so, then

the court’s sentencing authority is not restricted by Code § 19.2-306.1. 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.4

In some cases, it may very well be possible for contacting the victim of a crime to

constitute “substantial misconduct” amounting to a violation of the implied condition that the

4 Because it is not necessary to resolve this appeal, and we are mandated to resolve cases on the best and narrowest grounds, we decline to opine on what sanction Code § 19.2-306.1 authorizes for a good conduct violation. See Commonwealth v. Swann, 290 Va. 194, 196 (2015). -8- defendant remain of good behavior. In this case, however, the circuit court did not rely on the

general good behavior condition in revoking Diaz-Urrutia’s suspended sentence. Instead, the

circuit court relied on the specific special condition that Diaz-Urrutia not have contact with the

victim of his crime.

CONCLUSION

For these reasons, we hold that the basis of a revocation of a suspended sentence is a

good conduct violation only if the sole basis for the revocation is the defendant’s violation of the

condition that he remain of good behavior. In this case, because the circuit court was permitted

to revoke and impose any amount of the balance of his suspended sentence for Diaz-Urrutia’s

violation of “another condition” other than a technical violation or good conduct violation that

did not result in a new criminal conviction, the circuit court did not err in imposing two years of

active incarceration for Diaz-Urrutia’s violation of the no-contact condition of his suspended

sentence.

Affirmed.

-9-