COURT OF APPEALS OF VIRGINIA

Present: Judges Athey, Ortiz and Lorish

Argued at Norfolk, Virginia

EMILY KATHERINE DELAUNE

OPINION BY

v. Record No. 0328-22-1 JUDGE LISA M. LORISH

JANUARY 10, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Kevin M. Duffan, Judge

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

Robin M. Nagel, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

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 

PUBLISHED
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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.

1 At the same hearing, the court found Delaune guilty of failing to appear and sentenced 

her to ten days, all suspended. Delaune did not appeal this conviction or sentence. 

2 After this appeal was fully briefed, and less than two weeks before argument took place, 

the Commonwealth submitted a Rule 5A:4A letter of supplemental authority notifying the Court 

that the Commonwealth believed Delaune had been wanted on a capias since May 2, 2022 “for 

violations of her probation and suspended sentence” and was thus “considered a fugitive,” such 
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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 (2022) (citing 

Code § 1-239; Ruplenas v. Commonwealth, 221 Va. 972, 978 (1981)).3 In Heart v. 

Commonwealth, 75 Va. App. 453, 462 (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. 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 

that “[u]nder the fugitive disentitlement doctrine, dismissal of the appeal is appropriate.” A few 

days later the Commonwealth petitioned this Court under Code § 8.01-675.4 to issue a writ of 

certiorari to obtain a copy of a major violation report and unexecuted capias order. This Court 

may apply the fugitive disentitlement doctrine to dismiss an appeal when (1) the appellant is a 

fugitive, (2) there is a nexus between the current appeal and the appellant’s status as a fugitive, 

and (3) dismissal is necessary to effectuate the policy concerns underlying the doctrine. Sasson 

v. Shenhar, 276 Va. 611, 623 (2008). Even assuming there is an outstanding capias for Delaune, 

we exercise our discretion to not apply the doctrine here because of the late hour in which the 

Commonwealth raised the issue (six months after the alleged capias issued and less than two 

weeks before argument), because no motion to dismiss the appeal was filed, and because the 

Commonwealth’s proffer is that the capias pertains to an alleged new probation violation 

occurring after the final judgment on appeal, which would lack a sufficient nexus to this appeal. 

We therefore deny the outstanding petition for the writ. 

3

 In Green, this Court reserved whether the “triggering event date” that determined

which version of the law applied was when Green violated his probation or when his revocation 

proceedings began because “[t]he law was actually the same at the time of both events.” 75 

Va. App. at 83 n.4.
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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 

satisfyCode § 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 (quoting Cody v. 

Commonwealth, 68 Va. App. 638, 665 (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 (1981). As this argument was not raised in Heart, we consider it 

here. Jones v. Commonwealth, 293 Va. 29, 50 (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 (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 § 19.2-3034and 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. “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 (2010). For the same reason, the Commonwealth 

4 Code §19.2-303 now allows a court to “suspend or otherwise modify the unserved 

portion” of a sentence “at any time before the person is transferred to the Department [of 

Corrections], or within 60 days of such transfer.” 
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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.

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 (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. 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. 
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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 (quoting Conyers v. Martial Arts World of 

Richmond, Inc., 273 Va. 96, 104 (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 (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. 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.

Code § 19.2-306.1(A) defines “technical violation” to mean “a violation based on the 

probationer’s failure to . . . (vii) refrain from the use, possession, or distribution of controlled 

substances or related paraphernalia; . . . or (x) maintain contact with the probation officer 

whereby his whereabouts are no longer known to the probation officer.” This paragraph 

concludes: “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.” Id. For a “first technical 

violation,” a court “shall not impose a sentence of a term of active incarceration.” Code 

§ 19.2-306.1(C). “However, if the court finds, by a preponderance of the evidence, that the 
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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.” Id. Finally, “[f]or 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.” Id. 

Delaune admitted that she violated her probation by using controlled substances and by 

absconding from probation. Under Code § 19.2-306.1, a violation for failing to “maintain 

contact with the probation officer whereby [her] whereabouts are no longer known to the 

probation officer” is listed as a “technical violation” in subsection A and given automatic 

treatment as a “second technical violation” in subsection C. As such, the court was authorized to 

sentence Delaune to as many as 14 days of incarceration for this violation. The only question is 

whether her violation for using controlled substances was another “technical violation” that the 

court should have grouped together with the absconding violation or whether it was a 

non-technical violation. 

Delaune argued below (and the Commonwealth agreed) that the violation of a condition 

requiring her to remain “drug free” was a “violation based on [her] failure to . . . refrain from the 

use, possession, or distribution of controlled substances or related paraphernalia,” and thus 

qualified as a “technical violation.” The trial court instead concluded that by separately adding 

the condition that Delaune remain “drug free” on top of the general conditions requiring

supervised probation and good behavior, the sentencing court imposed a special condition of 

release not subject to the limitations in Code § 19.2-306.1(C). Because the General Assembly 

specifically defined “technical violation” to include any “violation based on” specified conduct, 

we disagree. The 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. When the 
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violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by definition, a 

“technical violation.” 

Delaune’s failure to remain “drug free” was a failure to “refrain from the use, possession, 

or distribution of controlled substances.” Code § 19.2-306.1 defines this to be a “technical 

violation” of probation, and the trial court erred by concluding otherwise. By statute, the trial 

court was required to group together Delaune’s violation for using controlled substances with her 

violation for absconding from probation. 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.”). Because the violation for 

absconding from probation is automatically treated a as “second technical violation,” the 

maximum sentence the court could impose was 14 days of active incarceration. The court 

imposed a sentence in excess of this statutory limit, so we must reverse. 

CONCLUSION

For the reasons set forth above, we reverse the court’s order revoking Delaune’s 

probation and re-suspending all but 60 days of the unserved portion of her sentences and remand 

for resentencing in accordance with Code § 19.2-306.1. 

Reversed and remanded.