COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Raphael UNPUBLISHED
Argued at Winchester, Virginia
JAMES FREDERICK BROWNE MEMORANDUM OPINION* BY v. Record No. 1373-21-4 JUDGE VERNIDA R. CHANEY APRIL 11, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY Clark A. Ritchie, Judge
Caleb J. Routhier (Miller, Earle & Shanks, PLLC, on briefs), for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
James Frederick Browne (Browne) appeals the sentence imposed by the Circuit Court of
Page County (circuit court) for violating the terms and conditions of his supervised probation on the
underlying offense of assault on a law enforcement officer. 1 The circuit court revoked and imposed
Browne’s previously suspended sentence of one year, five months, and eleven days, and
* This opinion is not designated for publication. See Code § 17.1-413. 1 The order appealed by Browne is a revocation and sentencing order in four cases, but Browne’s assignment of error applies only to the sentence in Case No. CR19F00167-02—the only case in which the circuit court did not re-suspend the revoked sentence in its entirety. Browne does not challenge the following sentences in the appealed revocation order: In Case No. CR19F00166-02, the circuit court revoked three years of Browne’s previously suspended prison sentence for strangulation in violation of Code § 18.2-51.6, and re-suspended all three years of that sentence. In Case No. CR19M00168-02, the circuit court revoked 12 months of Browne’s previously suspended sentence for misdemeanor assault and battery of a family member in violation of Code § 18.2-57.2, and re-suspended all 12 months of that sentence. In Case No. CR19M00169-02, the circuit court revoked 12 months of Browne’s previously suspended sentence for misdemeanor obstruction in violation of Code § 18.2-460, and re-suspended all 12 months of that sentence. re-suspended three months of that sentence. Browne contends that the circuit court erred in
sentencing him to more than14 days in jail for a second technical violation of probation under Code
§ 19.2-306.1. This Court holds that the circuit court erred in imposing a sentence of active
incarceration that exceeds the statutory maximum sentence under Code § 19.2-306.1(C). As a
matter of first impression, this Court further holds that a revocation sentence imposed in excess of
the statutory maximum sentence under Code § 19.2-306.1(C) exceeds the court’s sentencing power
and is void ab initio. Accordingly, this Court vacates the revocation sentencing order and remands
to the circuit court for resentencing.
BACKGROUND
I. Original Sentence and Prior Revocation
In May 2019, Browne was sentenced to incarceration for three years, with one year and
six months suspended, for assault on a law enforcement officer in violation of Code § 18.2-57.
Additionally, the May 2019 sentencing order placed Browne on supervised probation upon his
release from incarceration and listed the following among the “special conditions” of his
suspended sentence:
DEFENDANT IS TO REMAIN FREE OF ILLEGAL DRUGS AND ALCOHOL. . . . DEFENDANT IS ORDERED TO COMPLY WITH ANY EVALUATIONS, TREATMENTS OR COUNSELING AS RECOMMENDED BY THE PROBATION OFFICER TO THE SATISFACTION OF THE PROBATION OFFICER.
(capitalization in original).
In a revocation proceeding in April 2021, the circuit court found Browne in violation of
the conditions of the suspended sentence and supervised probation in the May 2019 sentencing
order. “The basis of this violation was failure to follow instructions, positive drug tests, failure
to complete substance abuse counseling, and new convictions.” The circuit court revoked the
-2- suspended sentence of one year and six months and re-suspended all but the time served. The
April 2021 revocation order further provides:
[The] suspended sentence is subject to the same terms and conditions as previously ordered by the Court by order entered 05/08/2019. [The] suspended sentence is further conditioned upon defendant’s successful completion of supervised probation upon his previous terms and conditions previously ordered.
Additionally, the April 2021 revocation order states:
The defendant shall complete Batter[er]s Intervention Program. The defendant shall complete mental health evaluation and treatment as requested by his probation officer. Additional special conditions of his supervised probation shall include the payment of costs of this proceeding.
II. November 2021 Revocation Hearing
On October 20, 2021, the circuit court issued a capias to arrest Browne for alleged
violations of the conditions of his suspended sentence and supervised probation. The capias
stated an offense date of October 15, 2021, for the alleged violations. Probation Officer
Christopher Sheets (P.O. Sheets) stated the alleged violations in a major violation report and
addendum.
At the probation violation hearing on November 22, 2021, the major violation report was
admitted into evidence as Commonwealth’s Exhibit 1. The major violation report stated that
Browne committed the following probation violations: (i) failure to maintain regular
employment; (ii) failure to report to the probation officer three times in August 2021, twice in
September 2021, and twice in October 2021; (iii) testing positive for controlled substances as
follows: positive for marijuana four times (June 2021, August 2021, and twice in October 2021);
positive for amphetamines twice (August 2021 and October 2021); positive for ecstasy in
October 2021; positive for methamphetamine in October 2021; and (iv) failure to comply with
the order to pay his court costs, making no payments since his last court date.
-3- P.O. Sheets testified that Browne was not amenable to probation. Browne tested positive
for illegal drugs on multiple occasions, including marijuana, amphetamines, ecstasy, and
methamphetamine. Although P.O. Sheets instructed Browne to enroll in substance abuse
counseling, Browne admitted to P.O. Sheets that he did not do so. P.O. Sheets expressed
concern about Browne using drugs around his girlfriend’s children, especially given his violent
history. Browne regularly failed to report for drug tests and other appointments, and he missed
at least six appointments in just over two months. Although Browne obtained employment at
Burger King, he failed to report for work.
P.O. Sheets also testified that Browne had not complied with the payment plan for his
court-ordered payment of court costs. According to the payment plan, Browne was supposed to
pay $50 by the 15th of every month. But Browne “didn’t make any payments whatsoever.”
P.O. Sheets further testified that Browne had complied with the “gang conditions” of his
probation.2 He also testified that “the best thing” Browne did on probation was the Batterers
Intervention Program, and his teacher verified that Browne attended and engaged in the class.
Browne’s girlfriend, S.A.,3 testified as a defense witness. S.A. was the victim of an
assault and battery by Browne in 2020. At the time of the revocation hearing, S.A. and her
children were residing with Browne in his mother’s house. S.A. testified that Browne is
“dramatically different” now, and he applies the lessons he learned in the Batterers Intervention
Program. According to S.A., Browne is helping to raise her children and is “a very good father
figure” to them. Browne’s evidence included photos and videos of Browne interacting with
S.A.’s children.
2 P.O. Sheets labeled Browne a gang member based on his tattoos and prison contacts, not based on any gang activity. None of the crimes in Browne’s history are gang-related. 3 This opinion uses initials to protect S.A.’s privacy. -4- Browne’s evidence also included a receipt dated October 27, 2021, for partial payment of
one dollar. Although Browne’s trial counsel told the circuit court that “[t]his is a receipt for
payment of court costs,” the receipt states that it is a partial payment of restitution for destruction
of personal property.
The circuit court stated that it found Browne in violation of the terms and conditions of
his supervised probation based on the testimony of P.O. Sheets and “the letter” he filed, i.e., the
major violation report.4 The circuit court also recounted the facts related to the underlying
convictions and noted that the incident was “extraordinarily violent.”
III. Motion to Reconsider
Browne filed a motion to reconsider the sentence of incarceration exceeding 14 days.
Browne contended that the probation officer calculated his probation revocation sentencing
guidelines based on the assumption that he made no payment whatsoever for his court costs,
thereby violating a special condition of his suspended sentence. Browne claimed that the
probation officer would not have included a special condition violation in his sentencing
guidelines if the probation officer had known that he had made a one-dollar payment for his
court costs prior to the revocation hearing.
Browne also contended that he would have paid his court costs before the November
2021 revocation hearing, but his attorney could not submit his payment because the payment
plan “was improperly filled out and docketed under the wrong name.” Browne attached to his
motion to reconsider a document entitled “Court Ordered Payment Schedule,” which was signed
by Browne and P.O. Sheets on April 15, 2021. However, the name typed at the top of the form
4 The circuit court sustained Browne’s objection and excluded P.O. Sheets’s addendum to the major violation report. The addendum states: “After speaking with Ms. Bienen, from Page County Counseling on 10/18/21, it was learned that Mr. Browne has not contact[ed] her as instructed.” -5- was “James Frederic Johnson.” Browne argued that, but for this mistake, his court costs would
have been paid before the November 2021 revocation hearing, thereby resolving the alleged
violation of a special condition of his suspended sentence.
At the December 1, 2021 reconsideration hearing, Browne contended that he discovered
the clerical mistake on his payment plan immediately after his revocation hearing. Browne
proffered that he had a check for $350 to pay the court costs owed to date. Browne argued that
the circuit court should accept his payment of court costs to “cure” the special condition
violation and should modify his sentence to incarceration for no more than 14 days for a second
technical violation. The circuit court denied Browne’s motion to reconsider. This appeal
followed.
ANALYSIS
Standard of Review
On appellate review of a trial court’s revocation of a defendant’s probation and suspended
sentence, “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)). As our Supreme Court has recognized:
An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (quoting Kern v.
TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)). Additionally, a trial court “by
definition abuses its discretion when it makes an error of law.” Porter v. Commonwealth, 276 Va.
203, 260 (2008). On appeal, “[t]he evidence is considered in the light most favorable to the
Commonwealth, as the prevailing party below.” Jacobs, 61 Va. App. at 535. “To the extent that -6- appellant’s assignment of error raises a question of statutory interpretation, that question is reviewed
de novo on appeal.” Id.
The penalty provisions of Code § 19.2-306.1 apply to Browne’s revocation sentencing. The
Commonwealth contends that the sentencing limits under Code § 19.2-306.1, which became
effective on July 1, 2021, do not apply in Browne’s case because some of the probation violations
were committed before July 1, 2021.5 However, during the November 2021 revocation hearing, the
Commonwealth agreed to proceed under Code § 19.2-306.1 when it agreed to use the sentencing
guidelines prepared pursuant to Code § 19.2-306.1. Because both parties consented to the
application of the new statute, the penalty provisions of Code § 19.2-306.1 apply to Browne’s
sentencing.6 See Heart v. Commonwealth, 75 Va. App. 453, 460-65 (2022); Code § 1-239.
I. Browne’s Failure to Enroll in Drug Counseling is a Technical Violation of Probation
Browne acknowledges on appeal that he violated his supervised probation by failing to
enroll in drug counseling as instructed by his probation officer. Browne contends that this is a
technical violation because a probationer’s “failure to . . . follow the instructions of the probation
officer” is defined as a “technical violation” in Code § 19.2-306.1(A)(v).
The Commonwealth argues that Browne’s failure to enroll in drug counseling violated a
special condition of his supervised probation under the April 2021 revocation order, which
incorporated the special conditions of the suspended sentence and supervised probation imposed
in the May 2019 sentencing order. The May 2019 sentencing order identifies the following as a
“special condition” of Browne’s suspended sentence: “Defendant is ordered to comply with any
5 The capias that charged Browne with probation violations states an offense date of October 15, 2021—after Code § 19.2-306.1 took effect on July 1, 2021. 6 In holding that the penalty provisions of Code § 19.2-306.1 apply here because the parties agreed to proceed under Code § 19.2-306.1, we express no opinion on whether Code § 19.2-306.1 would apply in the circumstances of this case had there been no such agreement. -7- evaluations, treatments or counseling as recommended by the probation officer to the satisfaction
of the probation officer.”7 The Commonwealth argues that because the circuit court explicitly
identified this as a “special condition,” Browne’s violation of the condition is not a technical
violation under Code § 19.2-306.1.
This Court recently rejected the Commonwealth’s claim that any violation of a “special
condition” of probation is a non-technical violation for purposes of sentencing under Code
§ 19.2-306.1.8 See Delaune v. Commonwealth, 76 Va. App. 372, 382-83 (2023). In Delaune, the
defendant’s suspended sentence and supervised probation were conditioned, in part, on compliance
with the specific condition that “[t]he defendant shall be drug free.” Id. at 376 (alteration in
original). Upon finding that the defendant used controlled substances while on probation, the
trial court in Delaune concluded that the sentencing limits under Code § 19.2-306.1 did not apply
because the defendant violated a “special condition” of her probation. Id. at 377. Reversing the
trial court, this Court held that the defendant’s failure to remain “drug free” was a technical
violation of probation because Code § 19.2-306.1(A)(vii) defines “technical violation” to include
a probationer’s “failure to . . . refrain from the use, possession, or distribution of controlled
substances.” Id. at 381.
7 Whether this condition includes an unlawful delegation of the circuit court’s judicial authority to an executive officer is not at issue in this appeal. See Code § 19.2-303 (“[T]he 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 . . . .” (emphasis added)); see also Fazili v. Commonwealth, 71 Va. App. 239, 254 (2019) (“[C]ircuit courts may not delegate to probation officers responsibilities that are the sole province of the circuit courts.”). 8 The official sentencing revocation report (SRR) form used by P.O. Sheets to calculate Browne’s sentencing guidelines appears to be a source of confusion because the SRR form appears to erroneously treat all violations of “special conditions” of probation as non-technical violations. -8- Whether or not a condition of probation is labeled a “special condition” by the trial court, a
violation of the condition constitutes 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 requirements set forth in Code
§ 19.2-306.1(A)(i)-(x).
For the purposes of this section, “technical violation” means a violation based on the probationer’s failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer.
Code § 19.2-306.1(A) (emphasis added). This Court holds that Browne’s failure to enroll in drug
counseling as P.O. Sheets instructed is a technical violation of probation under Code § 19.2-306.1
because (1) clause (v) of subsection A defines “technical violation” to include a probationer’s
failure to “follow the instructions of the probation officer” and (2) the violation is based on
Browne’s failure to follow P.O. Sheets’s instruction to enroll in drug counseling. The May 2019
sentencing order did not unconditionally require Browne to enroll in drug counseling as a condition
of his probation and suspended sentence. Rather, the circuit court’s order “to comply with any . . .
counseling as recommended by the probation officer” required Browne to enroll in drug
counseling only if instructed to do so by his probation officer. But for P.O. Sheets’s instruction to
enroll in drug counseling, Browne would have had no legal obligation to enroll in drug counseling.
-9- Under these circumstances, Browne’s failure to enroll in drug counseling constitutes a technical
violation of his probation.
II. Browne’s Failure to Pay Court Costs is a Technical Violation of Probation
The April 2021 revocation order required Browne to pay the costs of the revocation
proceeding as a special condition of his supervised probation. 9 The circuit court ordered that
“[s]uch supervised probation is for a period of three years to commence upon his release from any
and all incarceration.” Because the April 2021 revocation order did not prescribe a payment due
date other than the expiration date of Browne’s probation, Browne was only required to pay the
costs of the revocation proceeding within the three-year period of his supervised probation. 10 See
Code § 19.2-305 (providing that court costs may be “imposed at the time of being placed on
probation as a condition of such probation” and “the failure of the defendant to pay such fine or
costs . . . at the prescribed time or times may be deemed a breach of such probation”). A failure to
pay the court costs within the three-year period of probation would be a non-technical violation of
probation because such violation would be based on the failure to comply with a court-ordered
9 The May 2019 sentencing order did not condition Browne’s probation and suspended sentence on the payment of court costs. The May 2019 sentencing order states that “The Court SUSPENDS 1 year, 6 months, ___ days of incarceration upon the condition(s) specified in the Suspended Sentence Conditions.” The specific conditions identified in the section of the sentencing order labeled “Suspended Sentence Conditions” does not include the payment of court costs. 10 After the expiration of a defendant’s probation, Code § 19.2-306(B) authorizes the court to issue process charging the defendant with violating a condition of his suspended sentence. Code § 19.2-306(B) provides:
The court may not conduct a hearing to revoke the suspension of sentence unless the court issues process to notify the accused or to compel his appearance before the court within 90 days of receiving notice of the alleged violation or within one year after the expiration of the period of probation or the period of suspension, whichever is sooner, or, in the case of a failure to pay restitution, within three years after such expiration. - 10 - condition of probation that is not defined as a technical violation under Code § 19.2-306.1(A)(i)-(x).
However, at the time of the November 2021 revocation hearing, the expiration date of Browne’s
probationary period was approximately two years and five months away, in April 2024. Thus,
Browne did not violate the court-ordered condition to pay the costs of the revocation proceeding
before his probationary period expires.
The day after the April 2021 revocation hearing, P.O. Sheets instructed Browne to sign a
payment schedule for his court costs.11 According to the payment schedule, Browne was supposed
to pay $50 per month by the 15th day of each month. P.O. Sheets testified that Browne “didn’t
make any payments whatsoever” for court costs. Browne’s failure to pay court costs in accordance
with the schedule set by P.O. Sheets is a technical violation because the violation is based on the
“failure to . . . follow the instructions of the probation officer,” which is defined as a “technical
violation” in Code § 19.2-306.1(A)(v).
Browne erroneously contends on appeal and contended in the circuit court that the
sentencing limits for a technical violation under Code § 19.2-306.1 would not apply if he had paid
nothing at all for his court costs before the November 2021 revocation hearing. Browne
erroneously asserts that under such circumstances, his non-payment of court costs would constitute
a non-technical violation of his probation.12 Browne further contends on appeal, as he did in the
circuit court, that he made a one-dollar payment for court costs prior to the November 2021
revocation hearing. Browne claims that the receipt in evidence shows his one-dollar payment for
11 The payment schedule set by P.O. Sheets bears the misleading heading “Court Ordered Payment Schedule.” The document itself is not a court order and the record shows that it is a schedule for court-ordered payment of court costs, not a court-ordered payment schedule.
Browne’s concession on an issue of law does not bind this Court or the circuit court. 12
See Daily Press, LLC v. Commonwealth, __ Va. __, __ n.20 (Oct. 20, 2022) (citing Butcher v. Commonwealth, 298 Va. 392, 395 (2020) (refusing to be bound by a litigant’s “concession of law”)). - 11 - court costs. However, the receipt states that it is a partial payment of restitution for destruction of
personal property, a charge unrelated to the revocation proceeding here. The record includes no
evidence that Browne paid any of his court costs. Therefore, applying Browne’s erroneous analysis,
his non-payment of court costs would be a non-technical probation violation. Browne is incorrect
because Browne did not violate the court-ordered condition to pay his court costs within the
three-year period of probation. Rather, Browne had only failed to comply with his probation
officer’s instructions to make scheduled payments of $50 each month, and this violation was a
technical violation under Code § 19.2-306.1(A)(v).
Given (1) Browne’s contention that paying no court costs at all would be a non-technical
violation of his probation and (2) the evidence that Browne made no payments for court costs, the
circuit court’s erroneous conclusion that Browne’s non-payment of court costs was a non-technical
violation was invited error. Under the invited error doctrine, “[w]e will not ‘notice error which has
been invited by the [appellant].’” Muhammad v. Commonwealth, 269 Va. 451, 525 (2005) (quoting
Saunders v. Commonwealth, 211 Va. 399, 400 (1970)). However, this Court has recognized an
exception to the procedural bar imposed by the invited error doctrine when the error caused the trial
court “to impose a void sentence in excess of the applicable statutory maximum.” Alford v.
Commonwealth, 56 Va. App. 706, 710 n.3 (2010) (quoting Batts v. Commonwealth, 30 Va. App. 1,
11 (1999)); see also Burrell v. Commonwealth, 283 Va. 474, 481 (2012) (holding that the doctrine
of invited error does not preclude a challenge to a sentence that is void ab initio); Rawls v.
Commonwealth, 278 Va. 213, 221 (2009) (holding that a sentence exceeding “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’” (alteration in original) (quoting Anthony v. Kasey, 83 Va. 338,
340 (1887))); Commonwealth v. Watson, 297 Va. 355, 361 (2019) (“any excessive sentence is
void”). Since Browne’s invited error resulted in a void sentence in excess of the statutory maximum
- 12 - sentence under Code § 19.2-306.1(C), as explained below, the invited error doctrine does not
preclude appellate relief.
III. The Batterers Intervention Program is Unrelated to Browne’s Sentence
In contrast to the circuit court’s conditional order to enroll in counseling in the May 2019
sentencing order, the circuit court unconditionally ordered that Browne “shall complete
Batter[er]s Intervention Program” in the April 2021 revocation order. A violation of the
unconditional order to complete the Batterers Intervention Program would be a non-technical
probation violation under Code § 19.2-306.1.
The Commonwealth argues that Browne’s probation violation was partially based on his
failure to complete the Batterers Intervention Program and, therefore, the circuit court did not err
in sentencing Browne to active incarceration for more than 14 days for a non-technical probation
violation. We disagree. The record of the November 2021 revocation hearing includes no
violation related to the Batterers Intervention Program. In questioning P.O. Sheets on direct
examination, the Commonwealth referred to a show cause related to the Batterers Interventi on
Program that was scheduled for a future hearing in December. P.O. Sheets testified that he was
unaware of this show cause, and there is no such show cause in the record. Browne contends on
appeal that the show cause related to the Batterers Intervention Program was eventually
dismissed.
The circuit court pronounced that it found Browne in violation of the terms and
conditions of his supervised probation “based on the evidence before the Court today regarding
the letter[, i.e., the major violation report,] and the testimony of Officer Sheets.” The major
violation report included no alleged violations related to the Batterers Intervention Program.
And the only evidence related to the Batterers Intervention Program was P.O. Sheets’s testimony
that Browne attended and actively participated in the Batterers Intervention classes. After the
- 13 - circuit court pronounced the basis of the probation violation, the circuit court stated, “I also note
that although it hasn’t been necessarily argued, the failure to complete the Batterer’s Intervention
Program, he hasn’t completed it.” The circuit court’s statement that Browne did not complete
the program does not constitute a finding of a probation violation in this case because the show
cause related to the Batterers Intervention Program was scheduled for a December hearing and
had yet to be adjudicated. Therefore, Browne’s compliance with the order to complete the
Batterers Intervention Program is unrelated to the appealed sentence.
IV. Browne’s Sentence Exceeds the Statutory Maximum Sentence under Code § 19.2 306.1
Prior to the enactment of Code § 19.2-306.1 in 2021, the statutes governing the procedures
for a trial court’s exercise of authority over suspended sentences, probation, and revocation
proceedings “involve[d] not the power of the court but the proper exercise of its authority . . . .”
Cilwa v. Commonwealth, 298 Va. 259, 266 (2019) (emphasis added) (discussing Code
§§ 19.2-304 and 19.2-306). Orders based on a trial court’s failure to comply with the
requirements for exercising its authority are merely voidable, not void ab initio. Id. at 266-67.
However, in enacting Code § 19.2-306.1(C), the General Assembly expressly limited the
sentencing power of trial courts in revocation proceedings:
The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation.
Code § 19.2-306.1(C). Additionally, Code § 19.2-306.1(C) provides that the court may impose a
maximum of 14 days of active incarceration for a second technical violation “if the court finds, by a
preponderance of the evidence, that the defendant . . . cannot be safely diverted from active
incarceration through less restrictive means.”
- 14 - In sentencing Browne to over 14 months of active incarceration, the circuit court imposed a
sentence that exceeds the statutory maximum sentence allowed under Code § 19.2-306.1(C). The
probation violations underlying Browne’s appealed sentence are all technical violations under Code
§ 19.2-306.1, including his non-compliance with the probation requirements set forth in Subsection
A, clauses (ii) (“maintain regular employment”), (v) (“follow the instructions of the probation
officer, be truthful and cooperative, and report as instructed”), and (viii) (“refrain from the use [and]
possession . . . of controlled substances . . .”). For purposes of sentencing, Browne’s technical
violations of probation collectively constitute a single technical violation. See Code
§ 19.2-306.1(A) (“Multiple technical violations . . . considered at the same revocation hearing shall
not be considered separate technical violations for the purposes of sentencing pursuant to this
section.”). Browne’s technical violation is, at most, a second technical violation of probation under
Code § 19.2-306.1 because Browne has only one prior probation violation. 13 But the circuit court
imposed a sentence of active incarceration of one year, two months, and eleven days—exceeding
the fourteen-day maximum sentence for a second technical violation under Code § 19.2-306.1(C).
As a matter of first impression, this Court holds that under the sentencing limitations
established in Code § 19.2-306.1(C), the circuit court lacked the power to impose a sentence in
13 This opinion does not decide whether a trial court’s prior findings of both technical and non-technical violations of probation at the same revocation hearing count as a prior technical violation for purposes of sentencing under Code § 19.2-306.1(C). According to the concurrence, a prior probation revocation based on both technical and non-technical violations should be counted as a prior technical violation under Code § 19.2-306.1(C). However, the language of Code § 19.2-306.1 could be reasonably construed as evincing a legislative intent to require sentencing leniency for the first and second probation revocations that are based solely on technical violations. On this alternative construction, it would defeat the legislative intent of Code § 19.2-306.1 to count a prior “mixed” violation including both technical and non-technical violations as a technical violation for purposes of sentencing under Code § 19.2-306.1(C). Determining which construction best accords with the language and legislative intent of the statute is a question reserved for another day. But see Blake v. Commonwealth, 288 Va. 375, 386 (2014) (“If the language of the statute permits two ‘reasonable but contradictory constructions,’ the statutory construction favorable to the accused should be applied.” (quoting Wesley v. Commonwealth, 190 Va. 268, 276 (1949))). - 15 - excess of the statutory maximum 14-day sentence for a second technical violation of probation,
rendering Browne’s revocation sentence void ab initio. See Rawls, 278 Va. at 221; Jones v.
Commonwealth, 293 Va. 29, 49 (2017) (“[W]hen a trial court imposes a sentence outside the range
set by the legislature, the court’s sentencing order—at least to that extent—is void ab initio because
the court has no jurisdiction to do so.”) In Kasey, our Supreme Court explained:
[I]t is essential to the validity of a judgment or decree that the court rendering it shall have jurisdiction of both the subject-matter and parties. But this is not all; for both of these essentials may exist, and still the judgment or decree may be void, because the character of the judgment was not such as the court had the power to render, or because the mode of procedure employed by the court was such as it might not lawfully adopt.
Kasey, 83 Va. at 340 (emphasis added). In Commonwealth v. Watson, the Virginia Supreme Court
reaffirmed that “any excessive sentence is void” because it exceeds the court’s “power to punish.”
297 Va. at 361. Because the circuit court lacked the power to impose on Browne a sentence that
exceeded the statutory maximum sentence under Code § 19.2-306.1(C), the revocation sentencing
order is void ab initio.
CONCLUSION
The circuit court erred in imposing a sentence of active incarceration that exceeded the
statutory maximum sentence for a second technical violation of probation because Browne had, at
most, one prior technical violation of probation. The circuit court thereby exceeded its sentencing
power, rendering the revocation sentencing order void ab initio. Thus, in Case
No. CR19F00167-02, this Court vacates the revocation sentencing order and remands for
resentencing consistent with this opinion.
Vacated and remanded.
- 16 - Athey, J., concurring.
I agree with the majority that Browne failed to pay his court costs in monthly increments
based on the payment schedule imposed solely by his probation officer. The majority also
correctly determines that the trial court erred in finding that Browne violated a special condition of
his sentence that required him to pay his court costs in their entirety prior to being released from
probation. I further agree that the trial court erred in sentencing Browne to more than 14 days of
active incarceration since his failure to comply with the payment schedule was not a third or
subsequent technical violation of probation pursuant to Code § 19.2-306.1. However, I write
separately to point out that the violation here was clearly Browne’s second, not first, technical
violation. I also write separately to illustrate the narrow application of Code § 19.2-306.1 to
revocations where participation in a drug treatment program or payment of court costs, fines, and
restitution are clearly special conditions imposed by the trial court which then delegates the task of
monitoring compliance to the probation office or some other entity.
Initially, while the majority acknowledges that this violation is “at most” a second
technical violation, in my opinion, this is unquestionably Browne’s second technical violation
because his previous revocation was the result of both a major violation and a technical
violation. Although Code § 19.2-306.1(A) provides that, when there are several technical
violations considered at a single probation revocation hearing, the several technical violations
count only as a single technical violation, neither Code § 19.2-306.1 nor our precedent suggests
that prior technical violations do not count if addressed in a “mixed” proceeding where both
major and technical violations are adjudicated. Had the General Assembly wanted to place such
a limitation on probationers like Browne who previously committed both major and technical
violations which were resolved at the same hearing, it could have easily done so in the text of
Code § 19.2-306.1 as it did with respect to multiple technical violations adjudicated at the same
- 17 - hearing. Since the General Assembly did not, and Browne’s previous “conduct matches the
conduct listed in Code § 19.2-306.1(A),” his conduct is, “by definition, a ‘technical violation,’”
regardless of whether it was adjudicated simultaneously with a separate major violation.
Delaune v. Commonwealth, 76 Va. App. 372, 383 (2023). Hence, Browne’s previously
adjudicated technical violation was his first under Code § 19.2-306.1, and the subsequent
technical violation addressed here is his second technical violation—not “at most” his second
technical violation.
Next, this case only comes within the purview of Code § 19.2-306.1 because Browne did
not violate the court-ordered special condition that he pay his court costs before being released
from probation but instead only failed to comply with his probation officer’s instructions
requiring him to pay those costs pursuant to a specific installment plan. In addition, since the
trial court gave the probation office discretion regarding whether Browne would have to enroll in
any drug counseling, Browne’s failure to do so as directed by his probation officer was not in
derogation of a special condition of the trial court but instead only a failure to obey the direction
of his probation officer. As the majority aptly states, but for the probation officer’s instructions,
Browne had no court-ordered obligation to pay his court costs before the expiration of three
years or to enroll in drug counseling.
It is also important to note that applying Code § 19.2-306.1 to the payment of fines, court
costs, and restitution, as well as drug treatment, is limited and very fact specific. Any number of
slight factual variations would have removed this case from the scope of Code § 19.2-306.1. For
example, if (1) the trial court had ordered Browne to complete a specific drug treatment program
and he failed to do so; (2) Browne had violated the court-ordered condition by failing to pay his
court costs within the three-year period of his supervised probation; (3) the trial court had
ordered Browne to pay the court costs on a specific payment schedule and Browne had not
- 18 - complied; or (4) the trial court had delegated the implementation of a payment schedule for court
costs, fines, or restitution to the clerk’s office, treasurer’s office, or in the case of restitution, to a
local victim/witness program, instead of the probation office. 14 Because noncompliance with
payment schedules created outside the direction of the probation office would not be categorized as
a failure to follow the instructions of the probation officer, any such instance would be a violation of
a special condition. Even if the trial court here had ordered the specific payment schedule or drug
treatment program and delegated probation and parole to monitor Browne’s compliance, Browne’s
failure to make scheduled payments or enter the drug treatment program would have been more
than a technical violation for disobeying the probation officer. Since here Browne specifically
violated an instruction given solely by his probation officer, Code § 19.2-306.1 applies and this is a
second technical violation.15
14 See FY18 Fines & Fees Report, Compensation Board, (Dec. 1, 2018), https://www.scb.virginia.gov/docs/fy18finesandfeesreport.pdf (detailing the various procedures and entities that collect court costs, fines, and restitution). 15 Arguably, because such minor changes in procedure could invite disparate treatment of defendants, Code § 19.2-306.1 may be vague. See Tanner v. City of Virginia Beach, 277 Va. 432, 439 (2009) (“The constitutional prohibition against vagueness also protects citizens from the arbitrary and discriminatory enforcement of laws. A vague law invites such disparate treatment by impermissibly delegating policy considerations ‘to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’” (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972))). However, this is not the case in which to analyze this issue. - 19 - Raphael, J., concurs in the judgment.
- 20 -