COURT OF APPEALS OF VIRGINIA

Present: Judges Friedman, Callins and White

CORBYN NICOLE MILLER

MEMORANDUM OPINION* BY

v. Record No. 1192-22-3 JUDGE FRANK K. FRIEDMAN

FEBRUARY 7, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON

Anne F. Reed, Judge

(Brett P. Blobaum, Senior Appellate Attorney; Indigent Defense 

Commission, on brief), for appellant. Appellant submitting on 

brief.

(Jason S. Miyares, Attorney General; Ken J. Baldassari, Assistant 

Attorney General, on brief), for appellee. Appellee submitting on 

brief.

Corbyn Nicole Miller appeals from the judgment of the trial court revoking her two 

previously suspended sentences and imposing 364 days of active incarceration on one of those 

sentences. Miller contends that the trial court erred in finding that she had violated a special 

condition of her probation when she failed a drug test. She further argues that the trial court 

abused its discretion in imposing 364 days of active incarceration for what she contends was a 

first technical violation of her probation. 

BACKGROUND

“In revocation appeals, 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)). “The 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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evidence is considered in the light most favorable to the Commonwealth, as the prevailing party 

below.” Id.

On September 29, 2016, the Staunton circuit court convicted Miller of robbery and 

sentenced her to ten years of imprisonment, with nine years and eleven months suspended. 

Miller was also placed on ten years of supervised probation; the circuit court did not impose any 

special conditions on her probation requiring her to abstain from illegal drugs. 

On October 25, 2021, the Staunton circuit court convicted Miller of possessing a weapon

as a felon and sentenced her to two years of imprisonment, all suspended. She was also placed 

on two years of supervised probation; a condition of this probation was to “refrain from the use 

of any illegal drug, marijuana, poppy seeds, CBD oil, and/or hemp” and to “submit to random 

and observed drug screens.” 

On June 13, 2022, the Staunton circuit court found Miller in violation of her probation on 

the robbery conviction based in part upon her new weapon conviction. The revocation order 

specifies that Miller was found guilty of a Condition 1 violation.1 Miller had nine years and 

eleven months of revocable time; the court revoked and resuspended her entire sentence and 

ordered that Miller “return to supervised probation for the same term and conditions as 

previously sentenced.” 

Four days later, Miller’s probation officer filed major violation reports on both the 

robbery and weapon cases, alleging that Miller had violated Condition 8 of her probation—to 

refrain from illegal drug use—by testing positive for fentanyl. This positive test occurred on 

June 14, 2022, the day after her previous revocation hearing. 

1 A Condition 1 violation is described by the sentencing revocation report as “Fail to 

obey all Federal, State, and local laws.” 
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At the revocation hearing that followed, the Commonwealth presented evidence of 

Miller’s positive drug test for fentanyl. As to both cases, the trial court found Miller in violation 

of both general and special conditions against illegal drug use.2 The trial court revoked all nine

years and eleven months on Miller’s robbery charge and resuspended all but 364 days. On the 

weapon charge, the trial court revoked and resuspended Miller’s two-year sentence, imposing no 

active time. This appeal followed.

ANALYSIS

Miller argues that the trial court erred in three ways: by refusing to find that her use of a 

controlled substance was a technical violation under Code § 19.2-306.1, by abusing its discretion 

in sentencing her to 364 days of active jail time, and by finding that Miller had violated a special 

condition of her robbery probation.3 “In revocation appeals, the trial court’s ‘findings of fact and 

judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Green v. 

Commonwealth, 75 Va. App. 69, 76 (2022) (quoting Jacobs, 61 Va. App. at 535). “[B]y 

definition, a trial court ‘“abuses its discretion when it makes an error of law.’” Khine v. 

Commonwealth, 75 Va. App. 435, 444 (2022) (quoting Porter v. Commonwealth, 276 Va. 203, 

260 (2008)).

“Under well-established principles, an issue of statutory interpretation is a pure question 

of law which we review de novo.” Delaune v. Commonwealth, ___Va. App. ___, ___ (Jan. 10, 

2

In the sentencing revocation report, the trial court erroneously identified the general 

condition violation as Condition 6 (“fail to follow instructions, be truthful, and cooperative”) 

when it should have indicated a violation of Condition 8 (“use, possess, distribute controlled 

substances or paraphernalia”). Nonetheless, both are technical violations under Code 

§ 19.2-306.1. 

3 Although Miller asks this Court to apply the ends of justice exception to review her

claims, her request that the trial court find that this was her first technical violation properly 

preserved her argument. Under Code § 8.01-384(A), “it shall be sufficient that a party, at the 

time the ruling or order of the court is made or sought, makes known to the court the action 

which he desires the court to take.” Thus, we address her challenge on the merits.
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2023) (quoting Heart v. Commonwealth, 75 Va. App. 453, 465 (2022)). “When construing a 

statute, our primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed 

by the language used in the statute.” Cuccinelli v. Rector, Visitors of Univ. of Virginia, 283 Va. 

420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)). 

Code § 19.2-306.1 reads in pertinent part:

A. 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. 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.

B. If the court finds the basis of a violation of the terms and 

conditions of a suspended sentence or probation is that the 

defendant was convicted of a criminal offense that was 

committed after the date of the suspension, or has violated 

another condition other than (i) a technical violation or (ii) a 

good conduct violation that did not result in a criminal 

conviction, then the court may revoke the suspension and 

impose or resuspend any or all of that period previously 

suspended.

C. 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 
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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. . . . 

(Emphases added).

1. Revocation on Robbery Conviction

The trial court’s records on Miller’s original robbery conviction reveal that, while Miller 

was ordered to comply with supervised probation, the court did not impose any special condition 

that Miller refrain from the use of illegal drugs. It is therefore clear that under the statutory 

definitions in Code § 19.2-306.1, Miller’s use of fentanyl was a technical violation of her 

probation. And “Code § 19.2-306.1 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.

While Miller had previously been found guilty of violating her robbery probation, her 

previous revocation was based on new criminal convictions and was therefore not a technical 

violation under Code § 19.2-306.1(A). Thus, the present violation for drug use was Miller’s first 

technical violation on this case. See Heart, 75 Va. App. at 469. Under Code § 19.2-306.1, the 

trial court could not impose a term of active incarceration for Miller’s first technical violation. 

Therefore, we find that the trial court erred when it ruled that Miller had violated a special 

condition of her probation and when it imposed a term of 364 days of active incarceration on this 

case. 
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2. Revocation on Weapon Conviction

The trial court’s records show that Miller’s probation on the weapon charge included a 

condition to “refrain from the use of any illegal drug, marijuana, poppy seeds, CBD oil, and/or 

hemp” and to “submit to random and observed drug screens.” On appeal, Miller argues that her 

illegal drug use constituted a technical violation of her probation under Code § 19.2-306.1, 

regardless of whether the court had specifically ordered that she refrain from illegal drug use as a 

condition of her probation. 

In the recently decided case of Delaune v. Commonwealth, this Court found that Code 

§ 19.2-306.1 “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. When the violation 

conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a ‘technical 

violation.’” Delaune, ___Va. App. at ___. Here, the conditions on Miller’s probation required, 

in part, that she “refrain from the use of any illegal drug.” Code § 19.2-306.1(A) states that it is 

a technical violation to fail to “refrain from the use . . . of controlled substances.” Miller’s 

probation violation at issue here was based solely on her use of fentanyl. Therefore, under 

Delaune, Miller’s violation for using fentanyl was a technical violation of probation, despite the 

additional requirements imposed upon her by the circuit court. We find that the trial court erred 

in ruling that Miller’s failed drug test constituted a violation of a special condition of her 

probation.

CONCLUSION

The trial court erred in finding that Miller’s conduct violated a special condition of her 

probation on both the robbery and weapon charges. Her robbery charge did not include any 

special condition that Miller refrain from the use of illegal drugs, and therefore her failed drug 

screen was a technical violation of her robbery probation under Code § 19.2-306.1. While Miller 
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was subject to additional probation conditions for her weapon charge, her drug use constituted 

only a technical violation on that charge because her violative behavior fell within a delineated 

technical violation under Code § 19.2-306.1. See Delaune, ___Va. App. at ___. The record 

reveals that the violations at issue were Miller’s first technical violations of each of her 

probationary terms, and as such were not subject to a term of active incarceration. See Code 

§ 19.2-306.1(A) (“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.”). We therefore find 

that the trial court also erred in imposing a term of active incarceration on Miller’s robbery 

probation revocation.

We affirm the trial court’s ruling that Miller violated the terms of her probation, and we 

reverse the trial court’s judgment insofar as it finds Miller in violation of special conditions of 

her probation. We vacate Miller’s sentences on both probation violations, and we remand both 

cases for resentencing and entry of a new revocation order consistent with this opinion.

Reversed in part and remanded.