second technical violation in Virginia

2026In addition, a first technical violation based on a probationer’s failure to “maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer,” Code § 19.2-306.1(A)(x), “shall be considered a second technical violation, and any subsequent technical violation also based” thereon “shall be considered a third or subsequent technical violation,” Code § 19.2-306.1(C). “[T]he conduct statutorily defined as technical violations are specific requirements imposed on all probationers supervised by probation officers . . . .” Diaz-Urrutia v. Commonwealth,

2026“For a third or subsequent violation, the court is not limited in what active sentence it may impose.” Diaz-Urrutia, 77 Va. App. at 190.

2026Id. at 717-21.

2026In contrast, for non-technical violations, “the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.” Code § 19.2-306.1(B). 5 As relevant here, Code § 19.2-306.1(A)(v) specifically requires the probationer to “follow the instructions of the probation officer, be truthful and cooperative, and report as instructed.” -5- “Virginia courts have repeatedly looked to the conduct described in Code § 19.2-306.1 as the touchstone for evaluating whether a probationer has committed a technical violation.” Shifflett v. Commonwealth, 81 Va. App. 277 , 293 (

2026In contrast, for non-technical violations, “the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.” Code § 19.2-306.1(B). 5 As relevant here, Code § 19.2-306.1(A)(v) specifically requires the probationer to “follow the instructions of the probation officer, be truthful and cooperative, and report as instructed.” -5- “Virginia courts have repeatedly looked to the conduct described in Code § 19.2-306.1 as the touchstone for evaluating whether a probationer has committed a technical violation.” Shifflett v. Commonwealth, 81 Va. App. 277 , 293 (

2026A first absconding is “immediately treated” as a second technical violation and a second absconding “‘shall be considered a third or subsequent technical violation’ such that the court has authority to ‘impose whatever sentence might have been originally imposed.’” Heart, 75 Va. App. at 470.

2025See Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (noting the minimum -9- CONCLUSION For the foregoing reasons, this Court affirms the circuit court’s judgment.

2025The record shows that Hodges has committed - 10 - more than two technical violations, so that under the statute, the circuit court was authorized to impose any portion of Hodges’s suspended sentence, or all of it.4 Sentencing “decisions—if within the lawful boundaries of applicable sentencing statutes and constitutional limitations—are vested in the sound discretion of trial judges, not appellate judges.” Minh Duy Du v. Commonwealth, 292 Va. 555, 563 (2016) (citing John L.

2024The trial court found that “the basis of the violation is a second technical violation, a violation of a non-technical condition, and a conviction for a new criminal offense.” But in any event, “[a]bsent a statutory requirement to do so, ‘a trial court is not required to give findings of fact and conclusions of law.’” Bowman v. Commonwealth, 290 Va. 492 , 500 n.8 (2015) (quoting Fitzgerald v. Commonwealth, 223 Va. 615, 627 (1982)). -5- In the trial court, Phoenix did not raise her argument that the trial court’s alleged failure to make factual findings violated “public policy, due process, and

2024“The purpose of th[e] contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015).

2023But 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.

2023See 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.

2023See 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.

2023See 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.

2023Accordingly, this Court [should] find[] the error was not harmless.” Cox v. Commonwealth, 65 Va. App. 506, 521 (2015) (first alteration in original). 8 The trial court also gave significant consideration to Lucas’s status as a prior sex offender in assessing his violation of failing to report, indicated, for example, by the emphatic underlining of the phrase “registered sex offender” on the final decision/disposition form.