                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Huff, Russell and Athey
              Argued at Fredericksburg, Virginia


              DEJA LACHEE McNAIR
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0306-19-4                                      JUDGE GLEN A. HUFF
                                                                                 FEBRUARY 4, 2020
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                              Victoria A.B. Willis, Judge

                               Cole B. Dadswell, Assistant Public Defender, for appellant.

                               Leanna C. Minix, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Deja Lachee McNair (“appellant”) appeals the revocation of the suspension of her

              sentence and imposition of thirty days’ active confinement for failing to turn herself in to the jail

              for a time served calculation. She argues that the Circuit Court for Stafford County abused its

              discretion because the evidence showed her failure to report to the jail was not willful but based

              on a reasonable belief she had complied with the requirement to report. Because the trial court

              used the wrong standard for assessing whether to revoke the suspension of appellant’s sentence,

              this Court reverses and remands.

                                                      I. BACKGROUND

                     “This Court considers the evidence in the light most favorable to the Commonwealth, as

              the prevailing party below, granting to it all reasonable inferences that flow from the evidence.”




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Bryant v. Commonwealth, 67 Va. App. 569, 579 (2017), aff’d, 295 Va. 302 (2018). So viewed,

the evidence is as follows:

         Appellant pled guilty to failure to appear, grand larceny, and obtaining money by false

pretenses. At the sentencing hearing, her attorney represented that before being released on bond

while the case was pending appellant had served approximately a month in jail. Her attorney

requested she be sentenced to time served. The trial court sentenced her to two years’ and seven

months’ imprisonment with two years and six months suspended. At the trial court’s suggestion,

appellant’s attorney requested that appellant be permitted to turn herself in later that day to the

jail.1

         The trial court explained to appellant that she would receive credit for her time already

served in jail and that she needed to report to the jail by 4:00 p.m. or the trial court would revoke

the suspension of her sentence and appellant would be required to serve active time:

                So here is how that works, you have until 4:00 today to go and
                report to the jail. Now, I understand that you’re -- this is basically
                -- it’s credit. You already have credit -- you’ll get credit for time
                served, so this is going to be -- they have to process you still. If
                you don’t show up at the jail by four p.m., then a capias is issued
                and you will serve all that suspended sentence. So on your own,
                you go down to the jail and report. We do have some paperwork
                for you before you leave, so you can have a seat.

A few days later, the Commonwealth sought to revoke the suspension of appellant’s sentence,

alleging she never reported to the jail for the proper processing.

         At the probation violation hearing, the Commonwealth introduced a report from the jail

that stated appellant never appeared.




         The trial court stated “I’m assuming, [appellant’s trial attorney], that you want her to
         1

have a delayed report so she can go to the jail and report on her own?” Appellant’s trial counsel
replied “Yes.”
                                                -2-
        Appellant testified that she went to the jail on the day of sentencing. Appellant informed

the officer at the desk in the main lobby that she had to report to the jail and to pretrial services.

The officer then directed her to the pretrial services office, and she met with her pretrial services

officer. After she met with him, she reported to probation and parole. Appellant also testified

that she had never turned herself in to a jail before. She thought she only needed to go for a time

served calculation and would not need to actually be incarcerated at all.

        The pretrial services officer also testified. He confirmed that appellant reported on the

day of sentencing. He also confirmed that he told her she was finished with pretrial services.

        Appellant’s probation officer testified that appellant was doing well on probation. The

probation officer confirmed appellant had reported to the probation office on the day of the

sentencing. She had also reported on two others occasions. She did miss one appointment and a

mental health evaluation, but all her drug tests were clean.

        Appellant argued to the trial court that she had made a reasonable mistake. She argued

she had not been expecting to actually serve time in jail and she thought she had complied with

the requirement that she report to the jail when she spoke with the officer in the main lobby and

he directed her to pretrial services.

        The trial court rejected her argument. It held that a reasonable mistake would not excuse

her failure to report to the jail. It stated it did not know if appellant was truly confused about

whether she completed her obligation to report or not, but “the standard in the Court is not a

reasonable mistake, the standard in the Court is that she needed to report to the jail, that’s the

standard.” The trial court found her in violation of the conditions of her probation, revoked the

suspension of her sentence, and resuspended all but one month of active incarceration.

        This appeal followed.




                                                 -3-
                                   II. STANDARD OF REVIEW

        “The sufficiency of the evidence to sustain an order of revocation ‘is a matter within the

sound discretion of the trial court. Its finding of fact and judgment thereon are reversible only

upon a clear showing of abuse of such discretion.’” Duff v. Commonwealth, 16 Va. App. 293,

297 (1993) (quoting Hamilton v. Commonwealth, 217 Va. 325, 327 (1976)). However, “[a

circuit] court by definition abuses its discretion when it makes an error of law. . . . The

abuse-of-discretion standard includes review to determine that the discretion was not guided by

erroneous legal conclusions.” Porter v. Commonwealth, 276 Va. 203, 260 (2008) (alterations in

original) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

                                           III. ANALYSIS

        Appellant contends the trial court erred by revoking the suspension of her sentence.

Specifically, she contends the evidence was insufficient to establish that her failure to report to

the jail was willful and the trial court improperly held her strictly liable for the failure to report.

Although this Court is unconvinced the trial court could not have found a reasonable cause for

finding appellant in violation of the conditions of her probation and revoking the suspension of

her sentence, the trial court improperly adopted a strict accountability standard for evaluating

whether appellant violated the conditions of her probation. Thus, the trial court erred in finding

appellant in violation of the conditions of her probation. Therefore, this Court will reverse and

remand for reconsideration under the proper standard.

        The trial court “may revoke the suspension of [a] sentence for any cause the court deems

sufficient.” Code § 19.2-306. The “revocation of a suspended sentence lies in the discretion of

the trial court and . . . this discretion is quite broad.” Peyton v. Commonwealth, 268 Va. 503,

508 (2004) (quoting Hamilton, 217 Va. at 326). Nevertheless, “[t]he cause deemed by the court

to be sufficient for revoking a suspension must be a reasonable cause.” Marshall v.

                                                  -4-
Commonwealth, 202 Va. 217, 220 (1960). “The exercise of judicial discretion ‘implies

conscientious judgment, not arbitrary action.’” Rhodes v. Commonwealth, 45 Va. App. 645, 650

(2005) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 (1946)).

       The Commonwealth argues that the trial court could have found reasonable cause to find

appellant in violation of the conditions of her probation even if appellant had a reasonable but

mistaken belief that she had complied with the condition requiring her to report to jail.

Essentially, the Commonwealth argues appellant’s belief she complied with the condition of

probation is irrelevant, and thus, that the trial court may have reasonable cause to revoke the

suspension of a sentence even if appellant is not at fault for violating the conditions of probation.

       This Court disagrees. This Court and the Supreme Court have only permitted revocation

of the suspension of a sentence in either of two circumstances: 1) the defendant is at fault for

violating a condition, or 2) the revocation was to effectively implement a condition of the

suspension that a change in circumstances rendered impossible to strictly fulfill.

       The Supreme Court has rejected the proposition that a defendant’s suspension of sentence

may be revoked, and active time imposed, when the defendant is completely without fault for

violating the conditions of the suspension. In Peyton, the defendant’s sentence was suspended

conditioned on his commitment to a custodial diversion program with the Department of

Corrections. When a medical condition made it impossible to continue in the program, the trial

court revoked the suspension of the defendant’s sentence and imposed the remaining seven years

of his sentence. The Supreme Court reversed. The Supreme Court concluded the trial court

erred by revoking the suspension of the sentence and imposing active time without considering

alternatives to incarceration. Peyton, 268 Va. at 511.

       In Word v. Commonwealth, 41 Va. App. 496 (2003), this Court made a distinction

between revocation of the suspension of a sentence and finding a defendant violated the

                                                -5-
conditions of probation. In Word, the defendant was sentenced to an active sentence of twelve

months’ incarceration with nine years’ incarceration suspended on the condition he complete a

custodial diversion program. Before the defendant was released to the diversion program, the

program rejected his participation because he was facing federal arrest for conduct committed

before his sentencing. The trial court revoked the defendant’s suspended sentence, imposed 120

days of additional active time, and found the defendant in violation of his probation. This Court

affirmed in part and reversed in part.

       First, this Court held the trial court erred by finding appellant in violation of his probation

conditions because he had committed no willful misconduct during the probationary period after

he was sentenced. It stated:

               The true objective of suspended sentencing [and probation] is to
               rehabilitate and to encourage a convicted defendant to be of good
               behavior. To accomplish this it is necessary that good conduct be
               rewarded. It is important that a defendant know that good conduct
               on his part will expedite his complete restoration to society.

Id. at 507 (quoting Hamilton, 217 Va. at 328).

       Second, although this Court affirmed the revocation of the suspension of the defendant’s

sentence and the imposition of 120 days of active incarceration, it did so on a narrow ground.

This Court explicitly noted that the trial court considered the diversion program as a form of

incarceration and that the trial court was imposing active time to effect the purpose of the

diversionary program condition: delaying the time when the defendant would be released into

the public. Id. at 505. Thus, even though this Court affirmed the imposition of active time

despite the defendant’s lack of fault in violating the conditions of probation, imposing active

time effectuated a condition that had been rendered impossible to satisfy because the diversion

program rejected the defendant’s participation.




                                                 -6-
       Thus, although a trial court has the authority to revoke the suspension of a sentence for

the purpose of effectuating a condition of the suspension that has—through no fault of the

defendant—become impossible to fulfill, it does not otherwise have the authority to find a

defendant in violation of probation or revoke the suspension of a sentence without finding the

defendant has some culpability with respect to a violated condition. In other words, the trial

court may not hold a defendant strictly liable for failure to comply with the conditions of

probation.2 If this Court permitted a defendant to be found in violation without regard to fault, it

would teach a defendant “that good conduct on h[er] part will [not] expedite h[er] complete

restoration to society.” Word, 41 Va. App. at 507 (quoting Hamilton, 217 Va. at 328). This

Court will not do so.

       “Although we presume that a trial judge properly based his decision on the evidence

presented and properly applied the law, we do not indulge those presumptions in the face of clear

evidence to the contrary.” Brown v. Commonwealth, 8 Va. App. 126, 133 (1989) (citations

omitted). Here, the trial court explicitly stated that it did not matter if appellant had made a

reasonable mistake, she failed to report to the jail and thus was in violation of the conditions of

her probation:


       2
          Appellant argues that a violation must be “willful” to be culpable. Appellant equates
that to knowingly and intentionally violating the condition of probation. The Commonwealth
agrees that violations must be “willful” but argues that willful means only that the failure is the
result of her voluntary actions unrestrained by others. This Court need not resolve the exact
mental state required to find a defendant culpable in violating a probation condition. The
standard for determining whether there is cause to find a defendant violated a probation
condition is “reasonable cause.” Thus, the exact mental state required for finding a violation
depends on the specific condition violated. For example, finding a defendant has violated a
restitution condition requires a willful refusal to pay. Duff v. Commonwealth, 16 Va. App. 293,
298-99 (1993).
         Here, appellant only argued to the trial court that the failure to report to jail was a
“reasonable mistake.” Thus, she implicitly acknowledged that an unreasonable mistake, e.g.
negligent failure to report to the jail, would have been sufficient cause to find her in violation of
the condition of her probation requiring her to report to the jail.

                                                 -7-
                Unfortunately, the standard in the Court is not a reasonable
                mistake, the standard in the Court is that she needed to report to the
                jail, that’s the standard.

                   ....

                And I hear you, and I’m sorry for her, but I am going to find her
                guilty of the violation.

The trial court revoked the suspension of her sentence based on the violation finding. The trial

court also concluded that it did not know if appellant was really confused about whether she had

properly reported to the jail.

                And somehow it comes back and I’m put in a position with a
                person who may genuinely have been confused or not, I really
                don’t know.

        The trial court exercised its discretion to revoke appellant’s probation and the suspension

of her sentence under a mistaken view of the law. See Everett v. Tawes, ___Va. ___, ___ (Oct.

31, 2019) (“A circuit court’s discretionary authority means it ‘has a range of choice, and that its

decision will not be disturbed as long as it stays within that range and is not influenced by any

mistake of law.’” (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va.

346, 352 (2011))). By stating that “the standard . . . is that she needed to report to the jail” the

trial court, in essence, held appellant strictly liable for failing to report, and refused to consider

any factors that may have made her failure to report “reasonable.” If her failure to report was

reasonable, by definition, finding appellant in violation of the conditions of her probation was

unreasonable. Thus, this Court reverses, remands, and instructs the trial court to reconsider its

finding that appellant violated the condition of her probation. The trial court should resolve the

question of whether appellant was confused about whether she complied with the reporting

requirement and, if it finds she was confused, whether her mistake in failing to report was

reasonable.



                                                  -8-
                                         IV. CONCLUSION

        The trial court erred by holding, in effect, that appellant was strictly liable for her failure

to comply with the condition of her probation requiring her to report to the jail. This Court

reverses and remands for reconsideration of the probation violation finding. In the circumstances

of this case, the trial court may find appellant in violation of the condition of her probation, and

revoke the suspension of the sentence, only if it finds she willfully failed to report to the jail or

her confusion or mistake in failing to report was unreasonable.

                                                                              Reversed and remanded.




                                                  -9-
