Steve Wayne Shifflett v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 10, 2023
• Docket: 0675222
• Status: Unpublished

Opinion

VIRGINIA: UNPUBLISHED

In the Court of Appeals of Virginia on Tuesday the 10th day of October, 2023.

Steve Wayne Shifflett, Appellant,

against Record No. 0675-22-2 Circuit Court No. CR19000342-01

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On September 22, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on September 12, 2023, and grant a rehearing

en banc on the issue(s) raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). An electronic

version of each brief shall be filed with the Court and served on opposing counsel. 1

A Copy,

Teste:

A. John Vollino, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court

Deputy Clerk

1 The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf. COURT OF APPEALS OF VIRGINIA

Present: Judges Ortiz, Chaney and Senior Judge Haley UNPUBLISHED

Argued by videoconference

STEVE WAYNE SHIFFLETT MEMORANDUM OPINION* BY v. Record No. 0675-22-2 JUDGE JAMES W. HALEY, JR. SEPTEMBER 12, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY J. Leyburn Mosby, Jr., Judge Designate

Kevin E. Calhoun (Charles C. Cosby, Jr., on brief), for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Steve Wayne Shifflett appeals the circuit court’s judgment revoking his previously

suspended sentence and imposing three months’ active incarceration. Shifflett contends that his

sentence violated Code § 19.2-306.1(C)’s prohibition on active incarceration for a “first technical

violation.” In this case, we consider whether Shifflett’s failure to complete a sex offender treatment

program and 200 hours of community service at a location approved by his probation officer were

failures to “follow the instructions of the probation officer,” which Code § 19.2-306.1(A)(v) defines

as a technical violation. For the following reasons, we conclude that Shifflett committed only a first

technical violation, reverse the circuit court’s judgment, and remand for further proceedings.

BACKGROUND

On July 13, 2020, the circuit court convicted Shifflett of aggravated sexual battery and,

on October 7, 2020, sentenced him to twenty years’ incarceration. The court suspended the

* This opinion is not designated for publication. See Code § 17.1-413(A). sentence conditioned on the successful completion of two years’ supervised probation. The court

ordered Shifflett to “follow all the rules and regulations of probation,” “comply with all the rules

and requirements set by the Probation Officer,” “complete any screening, assessment, testing,

treatment and/or education as directed by the probation officer,” and “comply with a plan of 200

hours of community service coordinated through adult probation that shall all be completed by

October 7, 2021.” Additionally, the court required Shifflett to “register and reregister with the

Sex Offender and Crimes Against Minors Registry” and to “immediately enroll in counseling”

with “a licensed sex offender provider/counselor.”

On October 9, 2020, Shifflett began supervised probation and signed a document

agreeing to follow a general set of conditions of supervised probation, which included following

his probation officer’s instructions and being “truthful [and] cooperative.” Additionally, Shifflett

signed a set of “Sex Offender Special Instructions” that required him to “[a]ttend and

successfully complete a Sex Offender Treatment Program approved by [his] supervising officer.”

On November 30, 2021, Shifflett’s probation officer, Rebecca Moss, reported that he had

violated Condition 6 of the general conditions of probation by being “rude” and uncooperative

during office appointments in November 2020 and April 2021. Shifflett also “began Sex

Offender Treatment through the . . . Probation and Parole Office” in December 2020 but was

“unsuccessfully discharged” about a year later due to his “lack of progress and

therapy[-]interfering behavior,” including Shifflett’s refusal to accept “accountability” for his

offense. In addition, Moss reported that she had instructed Shifflett to “secure a community

service site” and obtain her permission to perform community service there before doing so. She

later authorized Shifflett to perform community service at a fire department, where he completed

44 hours of community service by July 3, 2021. Shifflett also completed 161 hours of

community service at a church in February 2021, but Moss “could not accept” those hours

-2- because Shifflett did not get her permission to perform community service at the church. Moss

discussed Shifflett’s community service with Fire Chief Marcus, who supervised the 44 hours of

approved community service Shifflett performed at the fire station. Chief Marcus confirmed that

Shifflett had performed an additional 161 hours at a local church at his direction but did not

provide the name of the church. Accordingly, Moss reported that Shifflett had “failed to

complete his 200 hours of community service” by October 7, 2021. The circuit court issued a

capias on December 7, 2021; Shifflett was arrested on December 18, 2021.

At the revocation hearing, the parties consented to applying recently amended and

reenacted Code § 19.2-306(C) and newly enacted Code § 19.2-306.1 to the proceedings.1

Shifflett conceded that he had violated the terms of his probation as Moss had reported but

argued that the circuit court could not impose an active sentence. He maintained that his

violations were “technical violations” under Code § 19.2-306.1(A) and the circuit court could not

impose active incarceration for a “first technical violation” under Code § 19.2-306.1(C). The

Commonwealth countered that Shifflett’s failure to complete sex offender treatment and 200

1 Amended and reenacted Code § 19.2-306(C) and newly enacted Code § 19.2-306.1, which took effect on July 1, 2021, do “not apply at a violation hearing when a probationer committed the relevant violations before the change in law and when revocation proceedings began before the statute took effect—absent agreement of the parties otherwise.” Delaune v. Commonwealth, 76 Va. App. 372, 378 (2023) (citing Green v. Commonwealth, 75 Va. App. 69, 83 (2022)); see 2021 Va. Acts Spec. Sess. I ch. 538. The Commonwealth argues on brief that the new statutory framework did not apply to Shifflett’s revocation hearing because some of his violation conduct preceded the statutes’ effective date and the parties did not agree to apply the new laws. But at oral argument, the Commonwealth acknowledged that this Court has held that parties consented to applying the new laws to revocation proceedings where, as here, “the probation officer prepared guidelines relying on the [new statutory] framework” and the Commonwealth did not assert that the defendant’s argument based on Code § 19.2-306.1 was “irrelevant or object to the use of Code § 19.2-306.1.” Heart v. Commonwealth, 75 Va. App. 453, 463-64 (2022); see also Delaune, 76 Va. App. at 378 (same). (Oral argument at 11:50-14:45). We find that Heart and Delaune are controlling and that the parties consented to applying the new statutory framework at the revocation proceeding. -3- hours of community service at an approved location were “special condition” violations,

allowing the circuit court to revoke Shifflett’s entire sentence.2

The circuit court found that Shifflett had failed “to follow special conditions/instructions

. . . to complete 200 hours of community service and complete sex offender treatment.” The

court emphasized that Shifflett was “disruptive with the probation officer” and “failed to follow

his probation officer’s regulations and instructions.” Additionally, the court found that

Shifflett’s failure to complete community service hours at an approved location was the “minor

part of [the] violation”3 and the “major part” was Shifflett’s “attitude” and failure to “cooperat[e]

with [his] probation officer.” Accordingly, the court revoked ten years of Shifflett’s previously

suspended sentence and resuspended nine years and nine months. Shifflett appeals.

ANALYSIS

“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light most

favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate

inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 Va. App. 69, 76

(2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)).

“[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear

showing of abuse of discretion.’” Heart v. Commonwealth, 75 Va. App. 453, 460 (2022)

(quoting Green, 75 Va. App. at 76). “But ‘an issue of statutory interpretation is a pure question

of law which we review de novo.’” Id. (quoting Green, 75 Va. App. at 76).

2 At the revocation hearing, the Commonwealth conceded that Shifflett’s failure to complete the community service hours at a location approved by his probation officer was a failure to follow the probation officer’s instructions. Nevertheless, the Commonwealth maintained that Shifflett’s conduct was a “special condition” violation. 3 The circuit court suggested Shifflett consult his probation officer after the revocation hearing to request that she retroactively approve the community service hours he had already completed. The court stated that if the probation officer refused the request, then Shifflett would “have to finish up” the balance of his community service hours. -4- “[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.” Diaz-Urrutia v.

Commonwealth, 77 Va. App. 182, 190 (2023) (quoting Cuccinelli v. Rector & Visitors of the Univ.

of Va., 283 Va. 420, 425 (2012)). “When the language of a statute is unambiguous, we are bound

by the plain meaning of that language.” Heart, 75 Va. App. at 466 (quoting Cuccinelli, 283 Va. at

425).

Code § 19.2-306(C) provides 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.” Code

§ 19.2-306.1 “creates two tiers of probation violations: (1) technical violations, based on a

probationer’s failure to do one of ten enumerated actions, and (2) non-technical violations.”

Heart, 75 Va. App. at 466.

The statute “contains specific limitations on sentencing that apply when a circuit court

bases its revocation of a suspended sentence on what the statute refers to as certain ‘technical

violations’ enumerated in the statute.” Green, 75 Va. App. at 75 (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)). “Multiple technical violations arising from a single course of conduct or a

single incident or considered at the same revocation hearing shall not be considered separate

technical violations for the purposes of sentencing pursuant to this section.” Code

§ 19.2-306.1(A). But the sentencing limitations do not apply to non-technical violations, which

include “convict[ion] of a criminal offense that was committed after the date of the suspension”

and “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.

-5- Commonwealth, 77 Va. App. 613, 622 (2023) (alterations in original) (quoting Code

§ 19.2-306.1(B)).

Shifflett contends that his failure to complete sex offender treatment and 200 hours of

community service at an approved location were “technical violations.” He asserts that the

circuit court ordered him to “immediately enroll in counseling” with “a licensed sex offender

provider/counselor” but delegated “authority and/or discretion to the probation officer” to

determine whether he was required to complete a sex offender treatment program. Therefore, he

maintains that he complied with the circuit court’s directive to enroll in sex offender counseling

but “failed to follow” the probation officer’s instructions to complete a sex offender treatment

program. Similarly, Shifflett argues that the circuit court required him to comply with his

probation officer’s plan to complete 200 hours of community service by October 7, 2021. He

contends that he completed the required number of community service hours before the October

2021 deadline, but did not do so at a location approved by his probation officer. Accordingly,

Shifflett asserts that each violation amounted to a failure to follow his probation officer’s

instructions, which Code § 19.2-306.1(A)(v) defines as a “technical violation.”

Code § 19.2-306.1(A) enumerates ten probation violations that are “technical

violation[s].” Relevant here, a probationer’s failure to “follow the instructions of the probation

officer, be truthful and cooperative, and report as instructed” is a technical violation. Code

§ 19.2-306.1(A)(v). “Because the General Assembly specifically defined ‘technical violation’ to

include any ‘violation based on’ specified conduct,” determining whether a violation is technical

in nature requires us to consider whether “the violation conduct matches the conduct listed in

Code § 19.2-306.1(A).” Delaune v. Commonwealth, 76 Va. App. 372, 382-83 (2023). To be

sure, “[t]he statute focuses on the underlying violation conduct itself, not the particular language

or label a trial court may have used in imposing a condition of probation.” Id. at 383 (emphasis

-6- added). Accordingly, if the underlying violation conduct “matches” the conduct listed in Code

§ 19.2-306.1(A), the violation is technical in nature. Id.

In addition, it is well-established that a sentencing court may “impose specific,

reasonable conditions of suspension and probation tailored to each individual and situation.”

Thomas, 77 Va. App. at 621 n.5 (citing Murry v. Commonwealth, 288 Va. 117, 122 (2014)); see

Code § 19.2-303 (permitting sentencing courts to “place the defendant on probation under such

conditions as the court shall determine”). “[U]nless a statute specifically imposes on the circuit

court the duty to set the parameters of [a probation] condition . . . , the circuit court may set the

bounds of the condition and delegate to the probation office the duty to set the parameters of

those conditions.” Fazili v. Commonwealth, 71 Va. App. 239, 254 (2019). “Essentially, while

the circuit court sets the terms and conditions of probation, probation officers enforce those

terms and conditions and exercise discretion in doing so.” Id. at 255 (emphasis added).

Accordingly, we have held that where a sentencing order required the defendant to “have no use

of any device that can access internet unless approved by his Probation Officer,” the circuit court

properly “delegat[ed] to the probation officer the authority to supervise [the defendant’s] internet

usage.” Id. at 246-55 (emphases added).

“While ‘special condition’ is not defined by statute, violations of special conditions

[imposed by a court] are ‘non-technical’ by nature since they condition behavior” not

enumerated in Code § 19.2-306.1(A). Burford v. Commonwealth, 78 Va. App. 170, 183 (2023).

“To be classified as special conditions, the behaviors must be distinct from the conditions

included in Code § 19.2-306.1(A) and courts cannot evade the limiting sentencing scheme for

technical violations by ‘crafting “special conditions” that encompass conduct defined by the

statute as a “technical violation.”’” Id. (quoting Thomas, 77 Va. App. at 625). Indeed, if a

probationer violates a “special condition” requiring him “to do something that [i]s covered by the

-7- enumerated list of technical violations [in Code § 19.2-306.1(A)],” the violation is “a technical

violation, not a special condition” violation because it is based on conduct matching that which

Code § 19.2-306.1(A) expressly defines as technical in nature. Diaz-Urrutia, 77 Va. App. at 191

(citing Delaune, 76 Va. App. at 383). In that circumstance, the “defendant has committed a

technical violation” and Code § 19.2-306.1(C)’s sentencing limitations apply. Id. at 194.

Conversely, if the violation conduct does not “match” that listed in Code § 19.2-306.1(A) but

matches conduct covered by a “special condition” imposed by the sentencing court, then it is a

non-technical violation not subject to any sentencing limitations. Burford, 78 Va. App. at

182-83.

In Delaune we held that a probationer’s drug use constituted a technical violation because

it was a failure to “refrain from the use, possession, or distribution of controlled substances”

under Code § 19.2-306.1(A)(vii), albeit the sentencing court required the probationer to remain

“drug free” as a “special condition” of her suspended sentence. 76 Va. App. at 383. We noted

that the “drug free” condition required the probationer to do no more than refrain from conduct

expressly defined as a technical violation under Code § 19.2-306.1(A)(vii) and, therefore, her

violation of that condition was a technical violation. Id.

By contrast, in Thomas we held that a defendant’s alcohol use violated a “special

condition” requiring him to abstain from drinking “any alcohol” and his conduct did not

constitute a technical violation because Code § 19.2-306.1(A)(vi) “defines using alcohol as a

technical violation only ‘to the extent that it disrupts or interferes with’ the probationer’s

‘employment or orderly conduct.’” Thomas, 77 Va. App. at 625-26. Accordingly, the

defendant’s “violation of his probation based on his alcohol consumption [wa]s not a technical

violation under subsection (A)(vi)” because the sentencing order’s alcohol condition was more

restrictive than Code § 19.2-306.1(A)(vi). Id. at 626.

-8- Most recently in Burford, we considered whether a defendant violated a “special

condition” or committed a technical violation by failing to complete a recommended

psychosexual evaluation. 78 Va. App. at 181-84. There, the sentencing order required the

defendant to “complete a [community-based probation] mental health evaluation” and to “follow

all recommendations.” Id. at 180. After the defendant completed the mental health evaluation as

directed, someone other than his probation officer “determined that he [also] needed to complete

a psychosexual evaluation.” Id. at 176 (alteration in original). The probation officer then

instructed the defendant to follow the recommendation to complete a psychosexual evaluation,

and he refused. Id. at 176-77.

On appeal, Burford argued that his failure to complete the recommended psychosexual

evaluation amounted to a failure to follow his probation officer’s instruction under Code

§ 19.2-306.1(A)(v). Id. at 181-82. We disagreed, holding that the defendant violated a special

condition and, therefore, committed a non-technical violation, by refusing to complete the

recommended psychosexual evaluation because the sentencing order explicitly required him to

complete a mental health evaluation and “follow all recommendations,” which was conduct not

expressly defined as “technical” in nature under Code § 19.2-306.1(A). Id. at 182-84. We

emphasized that “the district court’s instruction to ‘follow all recommendations’ was explicitly

tied to the district court’s requirement to complete the mental health evaluation.” Id. at 184.

Moreover, “the probation officer was not the one who recommended [the defendant] complete

the psychosexual evaluation.” Id. (emphasis added). Thus, given the precise language in the

sentencing order, the probation officer could not relieve the defendant of his obligation to

complete the recommended psychosexual evaluation. Accordingly, we held that the defendant

failed to follow the instructions of the sentencing court, not the probation officer, by failing to

complete the recommended psychosexual evaluation. Id.

-9- The record establishes that the conduct underlying Shifflett’s failure to complete sex

offender treatment and 200 community service hours at a location approved by Moss were

failures to “follow the instructions of [his] probation officer” and, therefore, technical violations.

Code § 19.2-306.1(A)(v). First, regarding Shifflett’s failure to complete sex offender treatment,

the sentencing order required Shifflett to “immediately enroll in counseling” with “a licensed sex

offender provider/counselor.” It did not require Shifflett to complete a sex offender treatment

program. Instead, the sentencing order required Shifflett to “comply with all the rules and

requirements set by the Probation Officer” and “complete any . . . treatment . . . as directed by

the probation officer.” (Emphases added). That condition did not require the probation officer

merely to supervise Shifflett’s completion of a sex offender treatment program specifically

ordered by the sentencing court. Rather, it delegated to the probation officer the authority to

decide what treatment programs Shifflett needed to complete, if any. Indeed, if the probation

officer decided that no sex offender treatment program was necessary, Shifflett did not need to

complete one. Thus, any requirement to complete a sex offender treatment program necessarily

came from the probation officer, not the sentencing court. Cf. Burford, 78 Va. App. at 183-84

(holding defendant’s failure to complete a psychosexual evaluation recommended by someone

other than the probation officer was a violation of a “special condition” requiring defendant to

complete a mental health evaluation and follow “all recommendations”). In effect, the

sentencing order’s directive for Shifflett to complete any treatment as directed by his probation

officer simply required Shifflett to “follow the instructions of the probation officer.” Code

§ 19.2-306.1(A)(v).

Consistent with Virginia Department of Corrections (DOC) policy, Moss imposed “Sex

Offender Special Instructions” as conditions of Shifflett’s probation, which required him to

“[a]ttend and successfully complete a Sex Offender Treatment Program approved by [his]

- 10 - supervising officer.” (Emphasis added). See Va. Dep’t of Corr. Operating Procedure 735.3

(requiring probation officers to impose “Sex Offender Special Instructions” for persons

convicted of certain sex crimes). As Moss reported, Shifflett “began” a sex offender treatment

program in December 2020 but failed to complete the program as she had instructed. Thus, his

failure to complete the sex offender treatment program was a failure to follow his probation

officer’s instruction and, therefore, a “technical violation” under Code § 19.2-306.1(A)(v). See

Thomas, 77 Va. App. at 625 n.10 (holding defendant’s failure to a complete community

residential program as directed by his probation officer was a technical violation under Code

§ 19.2-306.1(A)(v)).

Similarly, the sentencing order instructed Shifflett to “comply with a plan of 200 hours of

community service coordinated through adult probation that shall all be completed by October 7,

2021.” (Emphases added). That condition required Shifflett to do nothing more than follow his

probation officer’s “plan” to complete a specific number of community service hours by a date

certain. The record demonstrates that Shifflett completed over 200 hours of community service

several months before the October 2021 deadline. Indeed, Fire Chief Marcus discussed

Shifflett’s community service with Moss and confirmed that in addition to completing 44 hours

of approved community service at the fire station by July 2021, Shifflett performed 161 hours of

community service at a church in February 2021. The “violation” was that Shifflett failed to do

so at a location that Moss approved, which was a “failure to follow the instructions of the

probation officer.” Code § 19.2-306.1(A)(v). Accordingly, his failure to complete the required

community service hours in the manner prescribed by his probation officer was a technical

violation. Code § 19.2-306.1(A)(v); see Diaz-Urrutia, 77 Va. App. at 191 (observing that a

violation of a “special condition” that requires a probationer to “do something . . . covered by the

enumerated list of technical violations [in Code § 19.2-306.1(A)]” is a technical violation).

- 11 - Notwithstanding the above, the Commonwealth argues that Shifflett’s violations were not

“technical violations” because the failure to complete community service and sex offender

treatment is not conduct enumerated in Code § 19.2-306.1(A). The Commonwealth further

asserts that the “ten types of conduct” Code § 19.2-306.1(A) defines as “technical violations” are

“identical to the conduct prohibited by Conditions 2 through 11 of the standard terms and

conditions of probation that are imposed by the [DOC].” The Commonwealth reasons that “only

conduct that violates Conditions 2 through 11 of the standard terms of probation is a ‘technical

violation,’ and conduct that violates any other condition of suspension is not.”

But as we recently explained, Code § 19.2-306.1(A) defines technical violations by

focusing on the “underlying violation conduct itself, not the particular language or label a trial

court may have used in imposing a condition of probation.” Delaune, 76 Va. App. at 383. If the

underlying conduct “matches” the conduct specified in Code § 19.2-306.1(A), the violation is

technical in nature. Id. Here, Shifflett’s underlying conduct amounted to a failure to comply

with his probation officer’s instructions. We acknowledge that “in practice, the violations

classified as technical ones [in subsection (A)] often stem from conditions that apply because a

DOC probation officer has presented them to the felony probationer to sign as that person begins

a new period of supervision.” Thomas, 77 Va. App. at 621; see also Va. Crim. Sent’g Comm’n

Ann. Rep. 49 (2021) (listing “standard” conditions of probation). Nonetheless, in considering

whether a probation violation is “technical” in nature, we are bound by the General Assembly’s

definition of a “technical violation” in Code § 19.2-306.1(A), not the DOC’s interpretation of

what probation conditions are “standard.”4

4 Before amended and reenacted Code § 19.2-306 and newly enacted Code § 19.2-306.1 took effect, circuit court judges in revocation proceedings tailored any sanction to the nature and extent of violations proven. The change in law is an attempt to statutorily define the nature and extent of violations and dictate the sanction for those deemed “technical.” Now, circuit court judges, as here, are required to conduct nuanced interpretation of a complex statutory framework - 12 - In sum, Shifflett’s failure to complete sex offender treatment and 200 community service

hours at an approved location were failures to “follow the instructions of the probation officer,”

which Code § 19.2-306.1(A)(v) defines as a “technical violation.” As both violations were

“considered at the same revocation hearing,” the circuit court was obligated to treat them as a

single violation. Code 19.2-306.1(A). Moreover, because Shifflett’s probation violation was a

“first technical violation,” Code § 19.2-306(C) prohibited the circuit court from imposing active

incarceration.5

CONCLUSION

For the above reasons, the circuit court erred by imposing three months of active

incarceration on Shifflett’s first technical probation violation. Accordingly, we reverse the

circuit court’s judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

to discern legislative intent and separate “technical” from “non-technical” violations, when both are often intertwined. “Here, on the heels of a sea change in the applicable law,” the circuit court was “required to decipher a new sentencing scheme and make a ruling” without “any guidance beyond the new additions to the statutory scheme itself.” Thomas, 77 Va. App. at 623. The legislature can resolve this maelstrom. 5 Although the circuit court found Shifflett in violation of probation partially based on his “attitude” and failure to “cooperat[e] with the probation officer,” the parties do not dispute that this conduct was a “technical violation” because it amounted to a failure to be “cooperative” under Code § 19.2-306.1(A)(v). Regardless, under Delaune, Shifflett’s rude, uncooperative conduct was a technical violation under Code § 19.2-306.1(A)(v). - 13 - Ortiz, J., dissenting.

I dissent from the majority’s decision finding that the circuit court erred in holding

Shifflett’s failure to complete sex offender treatment constituted only a first technical violation—

“failure to follow the instructions of the probation officer”—under Code § 19.2-306.1(A)(v).

Although I agree with the majority that Shifflett’s community service violation constituted, at

most, a first technical violation and that the Commonwealth consented to proceeding under the

new statute, I would affirm the circuit court and find that Shifflett’s failure to complete sex

offender treatment was a major violation of a special condition.

As it was not listed by the majority, I separately note that “[w]hether to revoke a

suspended sentence ‘lies in the discretion of the trial court’ and will not be reversed absent an

abuse of that discretion.” Thomas v. Commonwealth, 77 Va. App. 613, 619 (2023) (citing

Carroll v. Commonwealth, 280 Va. 641, 654 (2010)). Although such discretion is broad, “it is

subject, of course, to any applicable statutory limitations,” reviewed de novo. Id. at 620.

Additionally, the majority notes only one of the ten technical violations enumerated by

the General Assembly—failure to follow the instructions of the probation officer. All ten

technical violations are a “probationer’s failure to”:

(i) report any arrest . . . 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;

- 14 - (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 . . . .

Code § 19.2-306.1(A).

The technical violations in Code § 19.2-306.1(A) “reflect ten of the eleven specific

requirements imposed on all probationers supervised by the Department of Corrections (DOC).”

Thomas, 77 Va. App. at 621. These violations “are based on the standard Conditions of

Probation Supervision signed by a [probationer and] . . . reflect Conditions 2 through 11 of the

standard Conditions of Probation Supervision.” Va. Crim. Sent’g Comm’n Ann. Rep. 49 (2021).

Conditions 2 through 11 are near identical to the ten technical conditions, listed above. See

Virginia Sent’g Guidelines, Sent’g Revocation Rep. & Probation Violation Guidelines 97 (2022),

http://www.vcsc.virginia.gov/worksheets2021/Probation%20Violation%20Booklet%20032222_

Final.pdf.

“When the violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by

definition, a ‘technical violation.’” Delaune v. Commonwealth, 76 Va. App. 372, 383 (2023).

Although the violation conduct “need not be identical” to the conduct listed in Code § 19.2-306.1

to constitute a technical violation, the “‘underlying’ conduct [must] ‘match[]’ the listed technical

violation in the statute.” Thomas, 77 Va. App. at 624. As such, we held that a condition

requiring a probationer to be “drug free” was not distinct from the underlying technical conduct

prohibiting the use of “controlled substances or related paraphernalia.” Delaune, 76 Va. App. at

382-83. But we held that a special condition prohibiting the use of alcohol was distinct from the

underlying technical conduct prohibiting “the use of alcoholic beverages to the extent that [it]

disrupts or interferes with his employment or orderly conduct.” Thomas, 77 Va. App. at 625

(emphasis added); Code § 19.2-306.1(A)(vi).

- 15 - The circuit court imposed the following conditions on Shifflett’s suspended sentence:

“Good Behavior”; “Supervised Probation”; “Counseling”; “DNA & Fingerprinting”; “Court

Costs”; “Sex Offender Registry”; “No Contact [with Victim]”; “Community Service”; not

evicting the victim; and bringing a chaperone when alone with female renters. The “Supervised

Probation” condition stated in full:

(X) Supervised Probation: The defendant shall be placed on supervised probation under the supervision of the Office of Department of Probation and Parole serving this Court (District 24 Probation and Parole) for a period commencing upon sentencing for Two (2) Years in which case the defendant shall report to probation within 48 hours from this sentencing date in order to schedule an intake appointment, and follow all the rules and regulations of probation, unless sooner released by court. (X) The defendant shall comply with all the rules and requirements set by the Probation Officer. (X) The defendant shall successfully complete any screening, assessment, testing, treatment and/or education as directed by the probation officer. (X) The defendant shall pay any fees and costs required by the probation officer. Failure to adhere to conditions of probation could result in a show cause and/or capias against the defendant.

This condition specifically required Shifflett to “successfully complete” treatment “as directed by

the probation officer.” (Emphasis added). The circuit court ordered a separate “Counseling”

condition, which stated in full:

(X) Counseling: The defendant shall immediately enroll in counseling after this sentencing date with a licensed sex offender provider/counselor, relating to his sexual conduct and matters associated therewith.

This condition specifically required Shifflett to enroll in a licensed counseling or treatment

program with a sex offender provider/counselor. This requirement is distinct from the

boilerplate language found in the preceding “Supervised Probation” provision.

We “may not construe the plain language of a statute ‘in a manner that amounts to

holding that the General Assembly meant to add a requirement to the statute that it did not

- 16 - actually express.’” Commonwealth v. Amos, 287 Va. 301, 307 (2014) (quoting Vaughn, Inc. v.

Beck, 262 Va. 673, 679 (2001)). “To supply omissions [to a statutory scheme] transcends the

judicial function.” Iselin v. United States, 270 U.S. 245, 251 (1926). This matter is even more

clearcut than our decision in Thomas. Enrollment6 in a licensed sex offender counseling or

treatment program does not appear in any of the statutory technical violations or in the standard

Conditions of Probation Supervision. And successful completion of “any screening, assessment,

testing, treatment and/or education as directed by the probation officer” is similarly absent. It is

impossible to say that failing to enroll in counseling or failing to complete a sex offender

treatment program—explicitly authorized and mandated by the circuit court—is “‘underlying’

conduct” that matches any listed technical violation in Code § 19.2-306.1(A). See Thomas, 77

Va. App. at 624; Burford v. Commonwealth, 78 Va. App. 170, 182-84 (2023).

When a circuit court directs a sex offender to enroll in and complete specific counseling

or treatment related to his or her offense, orders such counseling or treatment be supervised by

probation, and the sex offender flagrantly defies the court’s order,7 the majority would find the

sex offender guilty of a mere technical violation for failing to follow probation’s instructions. I

disagree. The circuit court must have the authority to delegate supervision of its special

condition programs to probation, without such supervision inherently becoming a technical

violation.

To support its decision, the majority misinterprets our recent holding in Burford. There,

the trial court ordered Burford to undergo a “mental health evaluation” and to subsequently

6 Although unnecessary here—because both enrollment and completion were ordered by the circuit court—I would additionally find that when a court orders “enrollment” in a program, it inherently orders “completion” of that program. Otherwise, a probationer could enroll in counseling, immediately disenroll, and remain in compliance. 7 Shifflett was kicked out of the sex offender treatment program for being uncooperative and combative, insulting others in the program, and failing to take accountability for his actions. - 17 - follow “all recommendations.” Id. at 180. After undergoing the court-ordered mental health

evaluation, Burford’s evaluator “determined that he [also] needed to complete a psychosexual

evaluation.” Id. at 176. This psychosexual evaluation was not part of the original court order,

and Burford refused to complete it. Id. at 176-77. The trial court found that Burford thus

violated a special condition of his suspended sentence. Id. at 178. We affirmed, holding that

Burford’s “noncompliance” was more than a mere technical violation of “failing to follow the

instructions of the probation officer.” Id. at 182. Instead, Burford’s “underlying conduct”

constituted a “failure to follow the instructions of the court,” which had specifically ordered an

evaluation and impliedly ordered subsequent treatment and/or evaluations in requiring Burford to

“follow all recommendations.” Id. at 183.

Here, like Burford, Shifflett also failed to follow the court’s instructions to complete

subsequently recommended evaluations and treatment. Unlike Burford, however, Shifflett’s

order was even more explicit.

As an aside—and after already finding that “Burford’s suspended sentences were

conditioned in part on a special condition”—the Burford panel noted that the probation officer

was not the individual who ordered the psychosexual evaluation, rendering Burford’s argument8

even more absurd. Id. at 184. The majority latches onto this dicta to hold that any time a

probation officer is court-ordered to supervise or conduct an evaluation, failure to comply

constitutes a mere technical violation.

By the majority’s logic, any supervision of a special condition by probation could

become a technical violation, simply because the probation officer is the one supervising. As a

result of this opinion, our courts will be forced to supervise sex offender treatment themselves to

maintain such treatment as a “special condition”—an untenable situation for an overburdened

8 Specifically, that Burford failed to follow probation’s instructions. - 18 - judiciary. Our circuit courts have carried the burden of untangling a new, complicated statute

and fairly enforcing it. The majority seeks to make that burden even heavier.

Shifflett clearly violated a special condition of his suspended sentence—to enroll in and

complete a sex offender counseling program. He did not merely fail to follow probation’s

instructions when he was discharged from that program for being uncooperative and combative,

insulting others, and failing to take accountability for his actions. To hold otherwise ignores the

circuit court’s clear sentencing order and flies in the face of our holdings in Delaune, Thomas,

and Burford. I respectfully dissent.

- 19 -