VIRGINIA:

In the Court of Appeals of Virginia on Tuesday the 10th day of October, 2023.

Steve Wayne Shifflett, Appellant,

against Record No. 0675-22-2

Circuit Court No. CR19000342-01

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On September 22, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition 

requesting that the Court set aside the judgment rendered herein on September 12, 2023, and grant a rehearing 

en banc on the issue(s) raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, 

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this 

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). An electronic 

version of each brief shall be filed with the Court and served on opposing counsel.1

A Copy,

Teste:

A. John Vollino, Clerk

 original order signed by a deputy clerk of the 

By: Court of Appeals of Virginia at the direction

 of the Court

Deputy Clerk

1

 The guidelines for filing electronic briefs and appendices can be found at 

www.courts.state.va.us/online/vaces/resources/guidelines.pdf.

UNPUBLISHED
COURT OF APPEALS OF VIRGINIA

Present: Judges Ortiz, Chaney and Senior Judge Haley

Argued by videoconference

STEVE WAYNE SHIFFLETT

MEMORANDUM OPINION* BY

v. Record No. 0675-22-2 JUDGE JAMES W. HALEY, JR.

SEPTEMBER 12, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY

J. Leyburn Mosby, Jr., Judge Designate

Kevin E. Calhoun (Charles C. Cosby, Jr., on brief), for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Steve Wayne Shifflett appeals the circuit court’s judgment revoking his previously 

suspended sentence and imposing three months’ active incarceration. Shifflett contends that his 

sentence violated Code § 19.2-306.1(C)’s prohibition on active incarceration for a “first technical 

violation.” In this case, we consider whether Shifflett’s failure to complete a sex offender treatment 

program and 200 hours of community service at a location approved by his probation officer were

failures to “follow the instructions of the probation officer,” which Code § 19.2-306.1(A)(v) defines 

as a technical violation. For the following reasons, we conclude that Shifflett committed only a first 

technical violation, reverse the circuit court’s judgment, and remand for further proceedings.

BACKGROUND

On July 13, 2020, the circuit court convicted Shifflett of aggravated sexual battery and, 

on October 7, 2020, sentenced him to twenty years’ incarceration. The court suspended the 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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sentence conditioned on the successful completion of two years’ supervised probation. The court

ordered Shifflett to “follow all the rules and regulations of probation,” “comply with all the rules 

and requirements set by the Probation Officer,” “complete any screening, assessment, testing, 

treatment and/or education as directed by the probation officer,” and “comply with a plan of 200 

hours of community service coordinated through adult probation that shall all be completed by 

October 7, 2021.” Additionally, the court required Shifflett to “register and reregister with the 

Sex Offender and Crimes Against Minors Registry” and to “immediately enroll in counseling” 

with “a licensed sex offender provider/counselor.”

On October 9, 2020, Shifflett began supervised probation and signed a document 

agreeing to follow a general set of conditions of supervised probation, which included following

his probation officer’s instructions and being “truthful [and] cooperative.” Additionally, Shifflett 

signed a set of “Sex Offender Special Instructions” that required him to “[a]ttend and 

successfully complete a Sex Offender Treatment Program approved by [his] supervising officer.”

On November 30, 2021, Shifflett’s probation officer, Rebecca Moss, reported that he had 

violated Condition 6 of the general conditions of probation by being “rude” and uncooperative 

during office appointments in November 2020 and April 2021. Shifflett also “began Sex 

Offender Treatment through the . . . Probation and Parole Office” in December 2020 but was 

“unsuccessfully discharged” about a year later due to his “lack of progress and 

therapy[-]interfering behavior,” including Shifflett’s refusal to accept “accountability” for his 

offense. In addition, Moss reported that she had instructed Shifflett to “secure a community 

service site” and obtain her permission to perform community service there before doing so. She 

later authorized Shifflett to perform community service at a fire department, where he completed 

44 hours of community service by July 3, 2021. Shifflett also completed 161 hours of 

community service at a church in February 2021, but Moss “could not accept” those hours 
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because Shifflett did not get her permission to perform community service at the church. Moss 

discussed Shifflett’s community service with Fire Chief Marcus, who supervised the 44 hours of 

approved community service Shifflett performed at the fire station. Chief Marcus confirmed that 

Shifflett had performed an additional 161 hours at a local church at his direction but did not 

provide the name of the church. Accordingly, Moss reported that Shifflett had “failed to 

complete his 200 hours of community service” by October 7, 2021. The circuit court issued a 

capias on December 7, 2021; Shifflett was arrested on December 18, 2021.

At the revocation hearing, the parties consented to applying recently amended and 

reenacted Code § 19.2-306(C) and newly enacted Code § 19.2-306.1 to the proceedings.1 

Shifflett conceded that he had violated the terms of his probation as Moss had reported but 

argued that the circuit court could not impose an active sentence. He maintained that his

violations were “technical violations” under Code § 19.2-306.1(A) and the circuit court could not

impose active incarceration for a “first technical violation” under Code § 19.2-306.1(C). The 

Commonwealth countered that Shifflett’s failure to complete sex offender treatment and 200 

1 Amended and reenacted Code § 19.2-306(C) and newly enacted Code § 19.2-306.1,

which took effect on July 1, 2021, do “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.” Delaune v. 

Commonwealth, 76 Va. App. 372, 378 (2023) (citing Green v. Commonwealth, 75 Va. App. 69, 

83 (2022)); see 2021 Va. Acts Spec. Sess. I ch. 538. The Commonwealth argues on brief that the 

new statutory framework did not apply to Shifflett’s revocation hearing because some of his

violation conduct preceded the statutes’ effective date and the parties did not agree to apply the 

new laws. But at oral argument, the Commonwealth acknowledged that this Court has held that 

parties consented to applying the new laws to revocation proceedings where, as here, “the 

probation officer prepared guidelines relying on the [new statutory] framework” and the 

Commonwealth did not assert that the defendant’s argument based on Code § 19.2-306.1 was 

“irrelevant or object to the use of Code § 19.2-306.1.” Heart v. Commonwealth, 75 Va. App. 

453, 463-64 (2022); see also Delaune, 76 Va. App. at 378 (same). (Oral argument at 

11:50-14:45). We find that Heart and Delaune are controlling and that the parties consented to 

applying the new statutory framework at the revocation proceeding.
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hours of community service at an approved location were “special condition” violations,

allowing the circuit court to revoke Shifflett’s entire sentence.2

The circuit court found that Shifflett had failed “to follow special conditions/instructions

. . . to complete 200 hours of community service and complete sex offender treatment.” The 

court emphasized that Shifflett was “disruptive with the probation officer” and “failed to follow 

his probation officer’s regulations and instructions.” Additionally, the court found that 

Shifflett’s failure to complete community service hours at an approved location was the “minor 

part of [the] violation”3and the “major part” was Shifflett’s “attitude” and failure to “cooperat[e] 

with [his] probation officer.” Accordingly, the court revoked ten years of Shifflett’s previously 

suspended sentence and resuspended nine years and nine months. Shifflett appeals.

ANALYSIS

“On appeal, ‘[w]e “view the evidence received at [a] revocation hearing in the light most 

favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate 

inferences that may properly be drawn from it.”’” Green v. Commonwealth, 75 Va. App. 69, 76 

(2022) (alterations in original) (quoting Johnson v. Commonwealth, 296 Va. 266, 274 (2018)). 

“[T]he trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear 

showing of abuse of discretion.’” Heart v. Commonwealth, 75 Va. App. 453, 460 (2022)

(quoting Green, 75 Va. App. at 76). “But ‘an issue of statutory interpretation is a pure question 

of law which we review de novo.’” Id. (quoting Green, 75 Va. App. at 76).

2 At the revocation hearing, the Commonwealth conceded that Shifflett’s failure to 

complete the community service hours at a location approved by his probation officer was a 

failure to follow the probation officer’s instructions. Nevertheless, the Commonwealth 

maintained that Shifflett’s conduct was a “special condition” violation.

3 The circuit court suggested Shifflett consult his probation officer after the revocation 

hearing to request that she retroactively approve the community service hours he had already 

completed. The court stated that if the probation officer refused the request, then Shifflett would 

“have to finish up” the balance of his community service hours.
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“[W]hen construing a statute, our primary objective is ‘to ascertain and give effect to 

legislative intent,’ as expressed by the language used in the statute.” Diaz-Urrutia v. 

Commonwealth, 77 Va. App. 182, 190 (2023) (quoting Cuccinelli v. Rector & Visitors of the Univ. 

of Va., 283 Va. 420, 425 (2012)). “When the language of a statute is unambiguous, we are bound 

by the plain meaning of that language.” Heart, 75 Va. App. at 466 (quoting Cuccinelli, 283 Va. at 

425).

Code § 19.2-306(C) provides that “[i]f the court, after hearing, finds good cause to 

believe that the defendant has violated the terms of suspension, then the court may revoke the 

suspension and impose a sentence in accordance with the provisions of § 19.2-306.1.” 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 (citing Code § 19.2-306.1). For 

a “first technical violation,” a court “shall not impose a sentence of a term of active 

incarceration.” Henthorne v. Commonwealth, 76 Va. App. 60, 65 (2022) (quoting Code 

§ 19.2-306.1(C)). “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.” Code 

§ 19.2-306.1(A). But the sentencing limitations do not apply to non-technical violations, which 

include “convict[ion] of a criminal offense that was committed after the date of the suspension” 

and “violat[ion of] another condition other than (i) a technical violation [in subsection (A)] or 

(ii) a good conduct violation that did not result in a criminal conviction.” Thomas v. 
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Commonwealth, 77 Va. App. 613, 622 (2023) (alterations in original) (quoting Code 

§ 19.2-306.1(B)).

Shifflett contends that his failure to complete sex offender treatment and 200 hours of 

community service at an approved location were “technical violations.” He asserts that the 

circuit court ordered him to “immediately enroll in counseling” with “a licensed sex offender 

provider/counselor” but delegated “authority and/or discretion to the probation officer” to 

determine whether he was required to complete a sex offender treatment program. Therefore, he 

maintains that he complied with the circuit court’s directive to enroll in sex offender counseling

but “failed to follow” the probation officer’s instructions to complete a sex offender treatment

program. Similarly, Shifflett argues that the circuit court required him to comply with his 

probation officer’s plan to complete 200 hours of community service by October 7, 2021. He 

contends that he completed the required number of community service hours before the October 

2021 deadline, but did not do so at a location approved by his probation officer. Accordingly, 

Shifflett asserts that each violation amounted to a failure to follow his probation officer’s 

instructions, which Code § 19.2-306.1(A)(v) defines as a “technical violation.”

Code § 19.2-306.1(A) enumerates ten probation violations that are “technical 

violation[s].” Relevant here, a probationer’s failure to “follow the instructions of the probation 

officer, be truthful and cooperative, and report as instructed” is a technical violation. Code 

§ 19.2-306.1(A)(v). “Because the General Assembly specifically defined ‘technical violation’ to 

include any ‘violation based on’ specified conduct,” determining whether a violation is technical 

in nature requires us to consider whether “the violation conduct matches the conduct listed in 

Code § 19.2-306.1(A).” Delaune v. Commonwealth, 76 Va. App. 372, 382-83 (2023). To be 

sure, “[t]he 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.” Id. at 383 (emphasis 
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added). Accordingly, if the underlying violation conduct “matches” the conduct listed in Code 

§ 19.2-306.1(A), the violation is technical in nature. Id.

In addition, it is well-established that a sentencing court may “impose specific, 

reasonable conditions of suspension and probation tailored to each individual and situation.” 

Thomas, 77 Va. App. at 621 n.5 (citing Murry v. Commonwealth, 288 Va. 117, 122 (2014)); see 

Code § 19.2-303 (permitting sentencing courts to “place the defendant on probation under such 

conditions as the court shall determine”). “[U]nless a statute specifically imposes on the circuit 

court the duty to set the parameters of [a probation] condition . . . , the circuit court may set the 

bounds of the condition and delegate to the probation office the duty to set the parameters of 

those conditions.” Fazili v. Commonwealth, 71 Va. App. 239, 254 (2019). “Essentially, while 

the circuit court sets the terms and conditions of probation, probation officers enforce those 

terms and conditions and exercise discretion in doing so.” Id. at 255 (emphasis added). 

Accordingly, we have held that where a sentencing order required the defendant to “have no use 

of any device that can access internet unless approved by his Probation Officer,” the circuit court 

properly “delegat[ed] to the probation officer the authority to supervise [the defendant’s] internet 

usage.” Id. at 246-55 (emphases added).

“While ‘special condition’ is not defined by statute, violations of special conditions 

[imposed by a court] are ‘non-technical’ by nature since they condition behavior” not 

enumerated in Code § 19.2-306.1(A). Burford v. Commonwealth, 78 Va. App. 170, 183 (2023). 

“To be classified as special conditions, the behaviors must be distinct from the conditions 

included in Code § 19.2-306.1(A) and courts cannot evade the limiting sentencing scheme for 

technical violations by ‘crafting “special conditions” that encompass conduct defined by the 

statute as a “technical violation.”’” Id. (quoting Thomas, 77 Va. App. at 625). Indeed, if a 

probationer violates a “special condition” requiring him “to do something that [i]s covered by the 
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enumerated list of technical violations [in Code § 19.2-306.1(A)],” the violation is “a technical 

violation, not a special condition” violation because it is based on conduct matching that which 

Code § 19.2-306.1(A) expressly defines as technical in nature. Diaz-Urrutia, 77 Va. App. at 191 

(citing Delaune, 76 Va. App. at 383). In that circumstance, the “defendant has committed a 

technical violation” and Code § 19.2-306.1(C)’s sentencing limitations apply. Id. at 194. 

Conversely, if the violation conduct does not “match” that listed in Code § 19.2-306.1(A) but 

matches conduct covered by a “special condition” imposed by the sentencing court, then it is a 

non-technical violation not subject to any sentencing limitations. Burford, 78 Va. App. at 

182-83.

In Delaune we held that a probationer’s drug use constituted a technical violation because 

it was a failure to “refrain from the use, possession, or distribution of controlled substances” 

under Code § 19.2-306.1(A)(vii), albeit the sentencing court required the probationer to remain 

“drug free” as a “special condition” of her suspended sentence. 76 Va. App. at 383. We noted 

that the “drug free” condition required the probationer to do no more than refrain from conduct 

expressly defined as a technical violation under Code § 19.2-306.1(A)(vii) and, therefore, her 

violation of that condition was a technical violation. Id.

By contrast, in Thomas we held that a defendant’s alcohol use violated a “special 

condition” requiring him to abstain from drinking “any alcohol” and his conduct did not 

constitute a technical violation because Code § 19.2-306.1(A)(vi) “defines using alcohol as a 

technical violation only ‘to the extent that it disrupts or interferes with’ the probationer’s 

‘employment or orderly conduct.’” Thomas, 77 Va. App. at 625-26. Accordingly, the 

defendant’s “violation of his probation based on his alcohol consumption [wa]s not a technical 

violation under subsection (A)(vi)” because the sentencing order’s alcohol condition was more 

restrictive than Code § 19.2-306.1(A)(vi). Id. at 626.
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Most recently in Burford, we considered whether a defendant violated a “special 

condition” or committed a technical violation by failing to complete a recommended 

psychosexual evaluation. 78 Va. App. at 181-84. There, the sentencing order required the 

defendant to “complete a [community-based probation] mental health evaluation” and to “follow 

all recommendations.” Id. at 180. After the defendant completed the mental health evaluation as 

directed, someone other than his probation officer “determined that he [also] needed to complete 

a psychosexual evaluation.” Id. at 176 (alteration in original). The probation officer then 

instructed the defendant to follow the recommendation to complete a psychosexual evaluation,

and he refused. Id. at 176-77.

On appeal, Burford argued that his failure to complete the recommended psychosexual 

evaluation amounted to a failure to follow his probation officer’s instruction under Code 

§ 19.2-306.1(A)(v). Id. at 181-82. We disagreed, holding that the defendant violated a special 

condition and, therefore, committed a non-technical violation, by refusing to complete the 

recommended psychosexual evaluation because the sentencing order explicitly required him to 

complete a mental health evaluation and “follow all recommendations,” which was conduct not 

expressly defined as “technical” in nature under Code § 19.2-306.1(A). Id. at 182-84. We 

emphasized that “the district court’s instruction to ‘follow all recommendations’ was explicitly 

tied to the district court’s requirement to complete the mental health evaluation.” Id. at 184. 

Moreover, “the probation officer was not the one who recommended [the defendant] complete 

the psychosexual evaluation.” Id. (emphasis added). Thus, given the precise language in the 

sentencing order, the probation officer could not relieve the defendant of his obligation to 

complete the recommended psychosexual evaluation. Accordingly, we held that the defendant

failed to follow the instructions of the sentencing court, not the probation officer, by failing to 

complete the recommended psychosexual evaluation. Id.
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The record establishes that the conduct underlying Shifflett’s failure to complete sex 

offender treatment and 200 community service hours at a location approved by Moss were 

failures to “follow the instructions of [his] probation officer” and, therefore, technical violations. 

Code § 19.2-306.1(A)(v). First, regarding Shifflett’s failure to complete sex offender treatment, 

the sentencing order required Shifflett to “immediately enroll in counseling” with “a licensed sex 

offender provider/counselor.” It did not require Shifflett to complete a sex offender treatment

program. Instead, the sentencing order required Shifflett to “comply with all the rules and 

requirements set by the Probation Officer” and “complete any . . . treatment . . . as directed by 

the probation officer.” (Emphases added). That condition did not require the probation officer 

merely to supervise Shifflett’s completion of a sex offender treatment program specifically 

ordered by the sentencing court. Rather, it delegated to the probation officer the authority to 

decide what treatment programs Shifflett needed to complete, if any. Indeed, if the probation 

officer decided that no sex offender treatment program was necessary, Shifflett did not need to 

complete one. Thus, any requirement to complete a sex offender treatment program necessarily 

came from the probation officer, not the sentencing court. Cf. Burford, 78 Va. App. at 183-84

(holding defendant’s failure to complete a psychosexual evaluation recommended by someone 

other than the probation officer was a violation of a “special condition” requiring defendant to

complete a mental health evaluation and follow “all recommendations”). In effect, the 

sentencing order’s directive for Shifflett to complete any treatment as directed by his probation 

officer simply required Shifflett to “follow the instructions of the probation officer.” Code 

§ 19.2-306.1(A)(v).

Consistent with Virginia Department of Corrections (DOC) policy, Moss imposed “Sex 

Offender Special Instructions” as conditions of Shifflett’s probation, which required him to 

“[a]ttend and successfully complete a Sex Offender Treatment Program approved by [his] 
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supervising officer.” (Emphasis added). See Va. Dep’t of Corr. Operating Procedure 735.3 

(requiring probation officers to impose “Sex Offender Special Instructions” for persons 

convicted of certain sex crimes). As Moss reported, Shifflett “began” a sex offender treatment 

program in December 2020 but failed to complete the program as she had instructed. Thus, his 

failure to complete the sex offender treatment program was a failure to follow his probation 

officer’s instruction and, therefore, a “technical violation” under Code § 19.2-306.1(A)(v). See

Thomas, 77 Va. App. at 625 n.10 (holding defendant’s failure to a complete community 

residential program as directed by his probation officer was a technical violation under Code 

§ 19.2-306.1(A)(v)).

Similarly, the sentencing order instructed Shifflett to “comply with a plan of 200 hours of 

community service coordinated through adult probation that shall all be completed by October 7, 

2021.” (Emphases added). That condition required Shifflett to do nothing more than follow his 

probation officer’s “plan” to complete a specific number of community service hours by a date 

certain. The record demonstrates that Shifflett completed over 200 hours of community service 

several months before the October 2021 deadline. Indeed, Fire Chief Marcus discussed 

Shifflett’s community service with Moss and confirmed that in addition to completing 44 hours 

of approved community service at the fire station by July 2021, Shifflett performed 161 hours of 

community service at a church in February 2021. The “violation” was that Shifflett failed to do 

so at a location that Moss approved, which was a “failure to follow the instructions of the 

probation officer.” Code § 19.2-306.1(A)(v). Accordingly, his failure to complete the required 

community service hours in the manner prescribed by his probation officer was a technical 

violation. Code § 19.2-306.1(A)(v); see Diaz-Urrutia, 77 Va. App. at 191 (observing that a 

violation of a “special condition” that requires a probationer to “do something . . . covered by the 

enumerated list of technical violations [in Code § 19.2-306.1(A)]” is a technical violation).
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Notwithstanding the above, the Commonwealth argues that Shifflett’s violations were not 

“technical violations” because the failure to complete community service and sex offender 

treatment is not conduct enumerated in Code § 19.2-306.1(A). The Commonwealth further 

asserts that the “ten types of conduct” Code § 19.2-306.1(A) defines as “technical violations” are 

“identical to the conduct prohibited by Conditions 2 through 11 of the standard terms and 

conditions of probation that are imposed by the [DOC].” The Commonwealth reasons that “only

conduct that violates Conditions 2 through 11 of the standard terms of probation is a ‘technical 

violation,’ and conduct that violates any other condition of suspension is not.”

But as we recently explained, Code § 19.2-306.1(A) defines technical violations by 

focusing on the “underlying violation conduct itself, not the particular language or label a trial 

court may have used in imposing a condition of probation.” Delaune, 76 Va. App. at 383. If the 

underlying conduct “matches” the conduct specified in Code § 19.2-306.1(A), the violation is 

technical in nature. Id. Here, Shifflett’s underlying conduct amounted to a failure to comply 

with his probation officer’s instructions. We acknowledge that “in practice, the violations 

classified as technical ones [in subsection (A)] often stem from conditions that apply because a 

DOC probation officer has presented them to the felony probationer to sign as that person begins 

a new period of supervision.” Thomas, 77 Va. App. at 621; see also Va. Crim. Sent’g Comm’n 

Ann. Rep. 49 (2021) (listing “standard” conditions of probation). Nonetheless, in considering 

whether a probation violation is “technical” in nature, we are bound by the General Assembly’s 

definition of a “technical violation” in Code § 19.2-306.1(A), not the DOC’s interpretation of 

what probation conditions are “standard.”4

4 Before amended and reenacted Code § 19.2-306 and newly enacted Code § 19.2-306.1

took effect, circuit court judges in revocation proceedings tailored any sanction to the nature and 

extent of violations proven. The change in law is an attempt to statutorily define the nature and 

extent of violations and dictate the sanction for those deemed “technical.” Now, circuit court 

judges, as here, are required to conduct nuanced interpretation of a complex statutory framework 
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In sum, Shifflett’s failure to complete sex offender treatment and 200 community service 

hours at an approved location were failures to “follow the instructions of the probation officer,” 

which Code § 19.2-306.1(A)(v) defines as a “technical violation.” As both violations were 

“considered at the same revocation hearing,” the circuit court was obligated to treat them as a 

single violation. Code 19.2-306.1(A). Moreover, because Shifflett’s probation violation was a 

“first technical violation,” Code § 19.2-306(C) prohibited the circuit court from imposing active 

incarceration.5

CONCLUSION

For the above reasons, the circuit court erred by imposing three months of active 

incarceration on Shifflett’s first technical probation violation. Accordingly, we reverse the

circuit court’s judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

to discern legislative intent and separate “technical” from “non-technical” violations, when both 

are often intertwined. “Here, on the heels of a sea change in the applicable law,” the circuit court 

was “required to decipher a new sentencing scheme and make a ruling” without “any guidance 

beyond the new additions to the statutory scheme itself.” Thomas, 77 Va. App. at 623. The 

legislature can resolve this maelstrom.

5 Although the circuit court found Shifflett in violation of probation partially based on his 

“attitude” and failure to “cooperat[e] with the probation officer,” the parties do not dispute that 

this conduct was a “technical violation” because it amounted to a failure to be “cooperative” 

under Code § 19.2-306.1(A)(v). Regardless, under Delaune, Shifflett’s rude, uncooperative 

conduct was a technical violation under Code § 19.2-306.1(A)(v).
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Ortiz, J., dissenting.

I dissent from the majority’s decision finding that the circuit court erred in holding 

Shifflett’s failure to complete sex offender treatment constituted only a first technical violation—

“failure to follow the instructions of the probation officer”—under Code § 19.2-306.1(A)(v). 

Although I agree with the majority that Shifflett’s community service violation constituted, at 

most, a first technical violation and that the Commonwealth consented to proceeding under the 

new statute, I would affirm the circuit court and find that Shifflett’s failure to complete sex 

offender treatment was a major violation of a special condition.

As it was not listed by the majority, I separately note that “[w]hether to revoke a 

suspended sentence ‘lies in the discretion of the trial court’ and will not be reversed absent an 

abuse of that discretion.” Thomas v. Commonwealth, 77 Va. App. 613, 619 (2023) (citing 

Carroll v. Commonwealth, 280 Va. 641, 654 (2010)). Although such discretion is broad, “it is 

subject, of course, to any applicable statutory limitations,” reviewed de novo. Id. at 620.

Additionally, the majority notes only one of the ten technical violations enumerated by 

the General Assembly—failure to follow the instructions of the probation officer. All ten 

technical violations are a “probationer’s failure to”:

(i) report any arrest . . . 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;
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(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 . . . .

Code § 19.2-306.1(A).

The technical violations in Code § 19.2-306.1(A) “reflect ten of the eleven specific 

requirements imposed on all probationers supervised by the Department of Corrections (DOC).” 

Thomas, 77 Va. App. at 621. These violations “are based on the standard Conditions of 

Probation Supervision signed by a [probationer and] . . . reflect Conditions 2 through 11 of the 

standard Conditions of Probation Supervision.” Va. Crim. Sent’g Comm’n Ann. Rep. 49 (2021). 

Conditions 2 through 11 are near identical to the ten technical conditions, listed above. See 

Virginia Sent’g Guidelines, Sent’g Revocation Rep. & Probation Violation Guidelines 97 (2022),

http://www.vcsc.virginia.gov/worksheets2021/Probation%20Violation%20Booklet%20032222_

Final.pdf.

“When the violation conduct matches the conduct listed in Code § 19.2-306.1(A), it is, by 

definition, a ‘technical violation.’” Delaune v. Commonwealth, 76 Va. App. 372, 383 (2023). 

Although the violation conduct “need not be identical” to the conduct listed in Code § 19.2-306.1 

to constitute a technical violation, the “‘underlying’ conduct [must] ‘match[]’ the listed technical 

violation in the statute.” Thomas, 77 Va. App. at 624. As such, we held that a condition 

requiring a probationer to be “drug free” was not distinct from the underlying technical conduct 

prohibiting the use of “controlled substances or related paraphernalia.” Delaune, 76 Va. App. at

382-83. But we held that a special condition prohibiting the use of alcohol was distinct from the 

underlying technical conduct prohibiting “the use of alcoholic beverages to the extent that [it]

disrupts or interferes with his employment or orderly conduct.” Thomas, 77 Va. App. at 625 

(emphasis added); Code § 19.2-306.1(A)(vi).
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The circuit court imposed the following conditions on Shifflett’s suspended sentence: 

“Good Behavior”; “Supervised Probation”; “Counseling”; “DNA & Fingerprinting”; “Court 

Costs”; “Sex Offender Registry”; “No Contact [with Victim]”; “Community Service”; not 

evicting the victim; and bringing a chaperone when alone with female renters. The “Supervised 

Probation” condition stated in full:

(X) Supervised Probation: The defendant shall be placed on 

supervised probation under the supervision of the Office of 

Department of Probation and Parole serving this Court 

(District 24 Probation and Parole) for a period commencing 

upon sentencing for Two (2) Years in which case the 

defendant shall report to probation within 48 hours from this 

sentencing date in order to schedule an intake appointment, 

and follow all the rules and regulations of probation, unless 

sooner released by court. (X) The defendant shall comply 

with all the rules and requirements set by the Probation 

Officer. (X) The defendant shall successfully complete any 

screening, assessment, testing, treatment and/or education as 

directed by the probation officer. (X) The defendant shall pay 

any fees and costs required by the probation officer. Failure 

to adhere to conditions of probation could result in a show 

cause and/or capias against the defendant.

This condition specifically required Shifflett to “successfully complete” treatment “as directed by 

the probation officer.” (Emphasis added). The circuit court ordered a separate “Counseling”

condition, which stated in full: 

(X) Counseling: The defendant shall immediately enroll in 

counseling after this sentencing date with a licensed sex 

offender provider/counselor, relating to his sexual conduct and 

matters associated therewith.

This condition specifically required Shifflett to enroll in a licensed counseling or treatment 

program with a sex offender provider/counselor. This requirement is distinct from the 

boilerplate language found in the preceding “Supervised Probation” provision.

We “may not construe the plain language of a statute ‘in a manner that amounts to 

holding that the General Assembly meant to add a requirement to the statute that it did not 
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actually express.’” Commonwealth v. Amos, 287 Va. 301, 307 (2014) (quoting Vaughn, Inc. v. 

Beck, 262 Va. 673, 679 (2001)). “To supply omissions [to a statutory scheme] transcends the 

judicial function.” Iselin v. United States, 270 U.S. 245, 251 (1926). This matter is even more 

clearcut than our decision in Thomas. Enrollment6in a licensed sex offender counseling or 

treatment program does not appear in any of the statutory technical violations or in the standard 

Conditions of Probation Supervision. And successful completion of “any screening, assessment, 

testing, treatment and/or education as directed by the probation officer” is similarly absent. It is 

impossible to say that failing to enroll in counseling or failing to complete a sex offender 

treatment program—explicitly authorized and mandated by the circuit court—is “‘underlying’ 

conduct” that matches any listed technical violation in Code § 19.2-306.1(A). See Thomas, 77 

Va. App. at 624; Burford v. Commonwealth, 78 Va. App. 170, 182-84 (2023).

When a circuit court directs a sex offender to enroll in and complete specific counseling 

or treatment related to his or her offense, orders such counseling or treatment be supervised by 

probation, and the sex offender flagrantly defies the court’s order,7the majority would find the 

sex offender guilty of a mere technical violation for failing to follow probation’s instructions. I 

disagree. The circuit court must have the authority to delegate supervision of its special 

condition programs to probation, without such supervision inherently becoming a technical 

violation.

To support its decision, the majority misinterprets our recent holding in Burford. There, 

the trial court ordered Burford to undergo a “mental health evaluation” and to subsequently 

6 Although unnecessary here—because both enrollment and completion were ordered by 

the circuit court—I would additionally find that when a court orders “enrollment” in a program, 

it inherently orders “completion” of that program. Otherwise, a probationer could enroll in 

counseling, immediately disenroll, and remain in compliance.

7 Shifflett was kicked out of the sex offender treatment program for being uncooperative 

and combative, insulting others in the program, and failing to take accountability for his actions.
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follow “all recommendations.” Id. at 180. After undergoing the court-ordered mental health 

evaluation, Burford’s evaluator “determined that he [also] needed to complete a psychosexual 

evaluation.” Id. at 176. This psychosexual evaluation was not part of the original court order, 

and Burford refused to complete it. Id. at 176-77. The trial court found that Burford thus 

violated a special condition of his suspended sentence. Id. at 178. We affirmed, holding that 

Burford’s “noncompliance” was more than a mere technical violation of “failing to follow the 

instructions of the probation officer.” Id. at 182. Instead, Burford’s “underlying conduct” 

constituted a “failure to follow the instructions of the court,” which had specifically ordered an 

evaluation and impliedly ordered subsequent treatment and/or evaluations in requiring Burford to 

“follow all recommendations.” Id. at 183.

Here, like Burford, Shifflett also failed to follow the court’s instructions to complete 

subsequently recommended evaluations and treatment. Unlike Burford, however, Shifflett’s 

order was even more explicit.

As an aside—and after already finding that “Burford’s suspended sentences were

conditioned in part on a special condition”—the Burford panel noted that the probation officer 

was not the individual who ordered the psychosexual evaluation, rendering Burford’s argument8

even more absurd. Id. at 184. The majority latches onto this dicta to hold that any time a 

probation officer is court-ordered to supervise or conduct an evaluation, failure to comply 

constitutes a mere technical violation.

By the majority’s logic, any supervision of a special condition by probation could 

become a technical violation, simply because the probation officer is the one supervising. As a 

result of this opinion, our courts will be forced to supervise sex offender treatment themselves to 

maintain such treatment as a “special condition”—an untenable situation for an overburdened 

8 Specifically, that Burford failed to follow probation’s instructions.
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judiciary. Our circuit courts have carried the burden of untangling a new, complicated statute 

and fairly enforcing it. The majority seeks to make that burden even heavier.

Shifflett clearly violated a special condition of his suspended sentence—to enroll in and 

complete a sex offender counseling program. He did not merely fail to follow probation’s 

instructions when he was discharged from that program for being uncooperative and combative, 

insulting others, and failing to take accountability for his actions. To hold otherwise ignores the 

circuit court’s clear sentencing order and flies in the face of our holdings in Delaune, Thomas, 

and Burford. I respectfully dissent.