Probation revocation sentencing cap in Virginia is not retroactive to violations committed before July 1, 2021

Probation revocation proceedings are all too common in Virginia, and concern criminal defendants about their sentencing exposure. As a Fairfax criminal lawyer, I exulted when the statutory law changed to strictly limit criminal defendants’ jail and prison risks for probation violations that are technical rather than based on committing new crimes. However, this week the Virginia Court of Appeals ruled 2-1 that this probation violation sentencing cap is not retroactive, and only applies to wrongdoings committed on and after the July 1, 2021, effective date of such sentencing caps. Green v. Virginia, ___ Va. App. ___ (June 14, 2022).

What is a technical violation that permits a Virginia probation revocation?

A major breakthrough with Virginia’s newer probation revocation legislation is the substantial incarceration limits for technical probation violations. What is a technical violation?: “‘[T]echnical 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. 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.” Virginia Code § 19.2-306.1(A).

What sentencing caps apply to Virginia technical probation violations?

“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. However, if the court finds, by a preponderance of the evidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a second technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.” Virginia Code § 19.2-306.1(C). Consequently, in light of the Virginia probation length statute, an argument against holding an alleged technical probation violation defendant without bond pending a probation violation hearing, is that doing so can exceed the maximum possible sentence risked for the alleged technical violation.

Will Green get further challenged for en banc review of appeal to the Virginia Supreme Court?

Such a close decision in Green — two judges to one — sounds more likely that Green will seek en banc review of his case by the entire Virginia Court of Appeals, and/or seek appellate relief in the Virginia Supreme Court. The Green majority reasons that such statutes are not retroactive unless the legislature communicates otherwise. The minority underlines why the statutory language does exhibit legislative intention to make the statue retroactive. Of course, as time passes, the the importance will become less concerning as to the retroactivity or not of the Virginia statutory limits on incarceration for technical probation violations, because the issue will only affect a minority of older probation revocation cases that for whatever reason have not yet proceeded to court.

Fairfax criminal lawyer Jonathan Katz pursues your best defense by treating your case as the unique cause that it is for you, against Virginia DUI, misdemeanor and felony prosecutions. Learn the great defense that Jon Katz can deliver for you, by calling 703-383-1100 for your free in-person consultation with Jon about your court-pending case.