James Frederick Browne v. Commonwealth of Virginia

Court: Court of Appeals of Virginia
Date filed: 2023-04-11
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Combined Opinion
                                            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UNPUBLISHED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 -