DeLaune v. Commonwealth

• Docket Number: Record No. 0328-22-1.
• Decision Date: 10 January 2023
• Citation: 882 S.E.2d 27,76 Va. App. 372
• Parties: Emily Katherine DELAUNE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

882 S.E.2d 27

76 Va. App. 372

Emily Katherine DELAUNE

v.COMMONWEALTH of Virginia.

Record No. 0328-22-1.

Court of Appeals of Virginia, Norfolk.

January 10, 2023.

Melissa I. Bray , Deputy Public Defender, for appellant.

Robin M. Nagel , Assistant Attorney General ( Jason S. Miyares , Attorney General, on brief), for appellee.

Present: Judges Athey, Ortiz and Lorish

OPINION BY JUDGE LISA M. LORISH.

The issue here is whether a probationer's violation of a condition requiring her to "be drug free" is a "technical violation" as defined by Code § 19.2-306.1(A)(vii) to include "a violation based on the probationer's failure to ... refrain from the use, possession, or distribution of controlled substances or related paraphernalia."

FACTUAL BACKGROUND

Delaune was released to probation following her convictions on various controlled substance charges for which she received a total active sentence of six years of incarceration with four years suspended. The suspension of her sentences was conditioned on several things. On top of general language placing Delaune on supervised probation and requiring her to "comply with all the rules, terms and requirements set by the probation officer," the sentencing court's order contained an additional condition: "[t]he defendant shall be drug free."

In February 2022, the court below held a hearing to address alleged violations of Delaune's probation. Delaune stipulated that she had violated the terms and conditions of her probation by using controlled substances and by absconding from her supervision. This hearing took place several months after legislative changes to the statutory scheme governing probation revocation took effect on July 1, 2021; however, the alleged violations took place before July 1, 2021, and a major violation report and capias alleging a failure to appear were also issued before that date.

At the hearing, Delaune argued, and the Commonwealth agreed, that her use of controlled substances was a first "technical violation" under Code § 19.2-306.1. Thus, both Delaune and the Commonwealth agreed that (because the statute automatically treated absconding as a second technical violation) the maximum sentence the court could impose under Code § 19.2-306.1(C) was 14 days. The court disagreed, concluding that the mandate to "be drug free" was a special, not technical, condition of her probation and suspended sentences. As a result, the court revoked the remaining four years of Delaune's suspended sentences and re-suspended all but 60 days.¹

ANALYSIS

Delaune argues that the trial court abused its discretion in concluding her use of controlled substances violated a "special condition" to "be drug free" and therefore was not a "technical violation" under Code § 19.2-306.1. The Commonwealth contends that we should not reach that question here because: (1) Code § 19.2-306.1 did not apply to the revocation hearing; and (2) Delaune's assignment of error does not encompass her argument on appeal.² We address these issues first.

Code § 19.2-306.1 took effect on July 1, 2021. Because it affects penalties, this statute does 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. Green v. Commonwealth, 75 Va.App. 69, 83, 873 S.E.2d 96 (2022) (citing Code § 1-239; Ruplenas v. Commonwealth, 221 Va. 972, 978, 275 S.E.2d 628 (1981)).³ In Heart v. Commonwealth, 75 Va.App. 453, 462, 877 S.E.2d 522 (2022), we found that the parties had agreed to proceed under Code § 19.2-306.1 based on circumstances that included (1) "preparation of the guidelines under the new statute, which all parties received prior to the hearing and relied on throughout the hearing," (2) "lengthy argument about how to interpret and apply the new statute" that "all counsel participated in," and (3) the agreement of the Commonwealth "on the record that the pending violation was for a `technical violation, third offense.'" Id. at 465, 877 S.E.2d 522. We find this case indistinguishable from Heart. The guidelines were prepared under Code § 19.2-306.1, and the Commonwealth affirmatively argued at the violation hearing that Delaune's failure to remain drug free was a technical violation under Code § 19.2-306.1, stating, "I do think I have an ethical obligation in regards to the interpretation of the statute, and I do think [Delaune] is correct." As we concluded in Heart, there was an agreement to proceed under the new statute sufficient to satisfy Code § 1-239, and a contrary conclusion would allow the Commonwealth to "approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory." Heart, 75 Va. App. at 465, 877 S.E.2d 522 (quoting Cody v. Commonwealth, 68 Va.App. 638, 665, 812 S.E.2d 466 (2018)).

At oral argument, the Commonwealth suggested that a concession made by a local prosecutor was not binding on the Office of the Attorney General on appeal, citing In re Commonwealth, 222 Va. 454, 281 S.E.2d 857 (1981). As this argument was not raised in Heart, we consider it here. Jones v. Commonwealth, 293 Va. 29, 50, 795 S.E.2d 705 (2017) ("[S]tare decisis does not `foreclose inquiry' into an issue not previously `raised, discussed, or decided.'" (quoting Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 560, 554 S.E.2d 55 (2001))).

In In re Commonwealth, the Supreme Court considered the finality of judgments and a circuit court's authority to suspend or otherwise modify a judgment more than 21 days after it was entered under the precursor to what is now Code § 19.2-303⁴ and Rule 1:1. The Supreme Court found that a trial court has no jurisdiction to suspend a sentence more than 21 days after a sentencing order, and so the fact that the Commonwealth had consented to the trial court's entry of orders after this date did not matter. 222 Va. at 465, 281 S.E.2d 857. "The lack of subject matter jurisdiction cannot be waived and such jurisdiction cannot be conferred on a court by the litigants," and as such, "[t]he lack of subject matter jurisdiction may be raised any time." Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 468, 698 S.E.2d 900 (2010). For the same reason, the Commonwealth could not be "estopped from repudiating the earlier position erroneously taken by the Commonwealth's Attorney" on the court's jurisdiction to amend a final judgment. In re Commonwealth, 222 Va. at 465, 281 S.E.2d 857.

Here, however, the Commonwealth's election to proceed under Code § 19.2-306.1—permissible under Code § 1-239 —does not implicate the court's subject matter jurisdiction. Instead, "[t]he approbate-reprobate bar allows the opposing party and the courts to rely on the position first taken when one party affirmatively assumes inconsistent legal positions on their own behalf." Harvey v. Commonwealth, 67 Va.App. 336, 349, 796 S.E.2d 428 (2017). All litigants are subject to the doctrine of approbate and reprobate. A conclusion otherwise would allow a party to agree that a new law applies under Code § 1-239, and if unhappy with the outcome, try again later under the old version of the law. This reversal of course is precisely what the approbate-reprobate bar is intended to prevent.

The Commonwealth separately alleges that Delaune failed to assign error to the term of incarceration the court imposed and that as such, Delaune has defaulted any appeal of her sentence. Delaune assigned the following error: "The trial court erred and abused its discretion in revoking appellant's suspended sentence based on a finding that she failed to remain drug free and was in violation of a special condition of her probation." The purpose of assignments of error is to "point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points." Chesapeake Hosp. Auth., 262 Va. at 556 n.2, 554 S.E.2d 55. The issue Delaune raises here is the same one that the trial court took up below: was Delaune's use of controlled substances a violation of a "special condition" of probation that falls outside of Code § 19.2-306.1, or was it a "technical violation" of probation under the statute? Her assignment of error fairly encompasses this argument.

Turning to the merits of Delaune's argument, we must determine whether Delaune's probation violation was a "technical violation" under Code § 19.2-306.1(C). "Under well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo." Heart, 75 Va. App. at 465, 877 S.E.2d 522 (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007)). When interpreting a statute:

[O]ur primary objective is "to ascertain and give effect to legislative intent," as expressed by the language used in the statute. "When the language of a statute is unambiguous, we are bound by the plain meaning of that language." [If, however,] the language of the statute "is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute."

Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626 (2012) (citations omitted).

"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, 877 S.E.2d 522. 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, 873 S.E.2d 96.

Code § 19.2-306.1(A) defines "technical violation" to mean "a...