Revocation Proceedings Examining the Role of the Prosecutor

Are you ready to unlock the mysteries surrounding revocation proceedings and the concept of affirmative election? This episode promises to arm you with legal insights and court interpretations drawn from the case of Commonwealth of Virginia v. DeLon. We dissect whether the violation conduct that occurred prior to the effective date of the statute should apply and if the preparation of sentencing guidelines qualifies as an affirmative election. You'll discover a fascinating twist: a failure to object does not necessarily amount to consent - an eye-opener in itself.

Join us as we chart through the ambiguities of statutory interpretation, especially in probation violation cases. We spotlight the case of Emily DeLon, accused of violating a special condition of remaining drug-free while on probation. We delve into the Court of Appeals' decision and subject matter jurisdiction to the special condition. We debate the intricate power and discretion of trial courts in imposing special conditions and probe the grey area where technical violations are masked as special conditions to sidestep limitations.

Get ready for a fiery debate with our lawyer guest who challenges our interpretation of a conversation between a trial court judge and a prosecutor, contesting the presence of consent for retroactive sentencing. We extend our discussion to the prosecutor's role in determining the punishment scheme and the fine line that separates special conditions from technical violations. You'll gain insights into how courts use their discretion within legislative limitations. This episode is not just a podcast, it is a journey into the heart of litigation, an invaluable resource for those intrigued by the nuances of technical violations and the prosecutor's pivotal role in punishment schemes.

This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.

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Transcript

Speaker 1: 0:00

But even if there were an affirmative election by that Commonwealth's attorney, even if this court were to look at that transcript and say the Commonwealth's attorney didn't just realize or move forward with it, that the Commonwealth's attorney cannot bind the attorney general on appeal, that's this court's case in Ray, commonwealth.

Speaker 2: 0:15

Did the Commonwealth's attorney seek to introduce the sentencing guidelines?

Speaker 1: 0:20

At the in the revocation proceeding. The Commonwealth's attorney certainly prepared the guidelines that, it seems, went forward with it but submitted them to the court.

Speaker 3: 0:28

Welcome to the Supreme Court of Virginia podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long-term disability law firm with headquarters in Fairfax, Virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of practicing law in Virginia. By putting these public domain recordings into the form of a podcast, Ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show sponsor.

Speaker 4: 1:02

Please call the next case.

Speaker 3: 1:05

Commonwealth of Virginia versus DeLon. Kevin Gallagher, deputy.

Speaker 5: 1:09

Solicitor General Appellants Council. Melissa Ibray, deputy Public Defender. Appellee's Council.

Speaker 1: 1:15

Morning, mr Chief Justice, and may it please the court, I'm Kevin Gallagher, deputy Solicitor General, representing the Commonwealth of Virginia. With me today is Graham Bryant. I'd like to reserve three minutes for a bottle Right? Emily DeLon has a history of drug abuse and drug crimes. When the circuit court was sentencing her for three drug felonies, it exercised its discretion to suspend the most of her sentence subjects to a special condition that she remained drug free. Just a few months later, however, she was again abusing drugs. Because she plainly violated the special condition of her suspension, the circuit court exercised its discretion to revoke the or to resuspend her sentence and found that 60 days of incarceration was necessary to help her break the pattern of drug abuse. The court of appeals held that this was incorrect abuse of discretion for two reasons. Court aired for two reasons as well. First, the statute did not even apply to Ms DeLon's revocation proceedings. The court shouldn't have applied Section 306.1 to Ms DeLon's revocation proceedings because her violation conduct happened prior to the effective date of the statute.

Speaker 2: 2:31

The Commonwealth at any point in the trial court object to the application of the statute To the sentencing guidelines that were prepared using the new statute, to the court considering the new statute at any point.

Speaker 1: 2:47

The Commonwealth's attorney did not object to that. That's correct, your Honor.

Speaker 2: 2:50

Given that 1239 allows, by consent, the Commonwealth to proceed with the lesser punishments, how could that statute ever have effect if, when it gets to you, you get to say we want to do over.

Speaker 1: 3:03

Two responses to that, your Honor. First of all, this court's case opinion in Rupleanus made clear that Section 1-239 requires an affirmative election by the Commonwealth to proceed under the new statute. And that's just not what we have here. There was, it appears the Commonwealth's attorney did not really even realize the statute didn't apply retroactively, just went forward with the colloquy as to how the statute would apply under the circumstances. But again, the conduct that was that issue, ms DeLon's absconding all of that happened prior to the effective date of the statute.

Speaker 2: 3:38

The sentencing guidelines were also prepared by the Commonwealth correct the sentencing guidelines were.

Speaker 1: 3:42

That is correct. But this court has required an affirmative election and just preparing sentencing guidelines falls well short of that. We have the case in our brief, the awkward case. It's a court of appeals case but in that case the Commonwealth's attorney submitted a fully executed election form that says the Commonwealth of Virginia is going forward under this new statute, elects to proceed under this new statute. That is what has been required from this court, having interpreted Section 1-239, to require that affirmative election. And again I want to make clear the Commonwealth's attorney. First of all, it's factually incorrect to say that the Commonwealth's attorney even agreed, even if an implicit agreement, which is what Ms DeLon says in her brief would be enough, which again, we would say needs to be an affirmative election, even if an implicit agreement would be enough. If you read the transcript of that hearing with the Commonwealth's attorney, it was very equivocal. He was saying this issue has been percolating before the courts we're raising-.

Speaker 4: 4:37

The issue to which he's referring is whether it's technical or special. He wasn't asking the court to determine whether the statute even applied in the first place was he.

Speaker 1: 4:48

That's correct, your Honor. I don't believe he even frankly, realized the statute should not have applied retroactively, and so the point that I'm making is that it's certainly not an affirmative election to move forward. He just doesn't seem to realize it.

Speaker 6: 4:59

Your position is really no different from a procedural default. When someone screws up and doesn't object below, no one would on appeal say you agreed to it. No, we'd say you screwed up but you didn't technically agree to anything.

Speaker 1: 5:10

That's right. We would say there is no agreement here. And I would say Ms DeLon also doesn't say there's an agreement. She says it's implicit and certainly maybe you could read the transcript that way, but there's not an affirmative agreement or election to move forward.

Speaker 6: 5:22

Consent meant a procedural default, a failure to object or to raise heck about it. Then all of our procedural default cases, the boxes and boxes of those cases, would all be consent cases.

Speaker 1: 5:34

That's right. That's right, your Honor, and I would say that we made it clear in our brief and I'm going to be clear here there was no affirmative election. That is an affirmative act, is it not? It is certainly an affirmative act, but it is not an affirmative election to proceed under the new statute. It is an affirmative act of presenting guidelines, which, my understanding, happens in all of these proceedings, but it's not an affirmative election to proceed under a new statute.

Speaker 2: 5:54

If I hand up a piece of paper to the court and say this is what we're proceeding under and it's the new statute. How is that not an affirmative election to proceed under the new statute?

Speaker 1: 6:03

I think those are two different things, your Honor. So in the awkward case that we cite, that is an affirmative election to proceed under a statute. This was just the presenting of guidelines that are. They're not binding on the court. My understanding is that there's a statute that requires certain guidelines to be used at certain times.

Speaker 2: 6:17

But if the Commonwealth is not proceeding under that statute, why would they submit something crafted under that?

Speaker 1: 6:23

statute. Your Honor, maybe the Commonwealth's attorney? Certainly not in the record. Maybe the Commonwealth's attorney in his head was thinking this is an affirmative election. But even if that were an affirmative election, the point still remains that the attorney general cannot be bound on appeal by that affirmative election by the Commonwealth's attorney. What are the?

Speaker 2: 6:41

perpetration of the cases you get to do over whenever you want one.

Speaker 1: 6:46

I want to be very clear in answering your question. Your Honor, because of the unique circumstances of this case, where the Commonwealth's attorney was handling the revocation hearing in front of the revocation court and then the attorney general, as a statutory nature, takes over the case on appeal, because of this court's holdings in Ray, commonwealth, in Ray Brown and other cases that we cite in our brief, there is their constitutional duties that both the Commonwealth's attorney and the attorney general have separately. Some of them are overlapping, some of them, but then a lot of them are distinct Because of that unique nature, of the difference between the Commonwealth's attorney and the attorney general, that absolutely the attorney general has the right and that's what this case, this court said in Ray Commonwealth, to not have to be it's not a stop from having to repudiate the position that the Commonwealth's attorney took below.

Speaker 2: 7:34

You can repudiate an election to proceed under 1239.

Speaker 1: 7:38

That's correct, your Honor, because I think there's two factors that are relevant here. Number one is that this court's case is in Ray, commonwealth, in Ray Brown, terry Hackett cases that we cite in our brief.

Speaker 7: 7:49

Hey, this is Ben Glass, just budding in here. If you like this podcast, I've got two others you might like listening to. The first are the oral argument recordings of the Court of Appeals of Virginia podcast. The second, if you're an attorney, and particularly if you're a law firm owner, go over and listen to the Renegade Lawyer Podcast. We talk about living life to the fullest using the vehicle of a law firm to get there. Check us out and have a great day.

Speaker 1: 8:18

All those cases make clear that, just as a broad principle is applied in various circumstances, I think the Court of Appeals tried to cabinet that principle to subject matter jurisdiction. That's certainly not the way this court has looked at it. When the Attorney General takes over on appeal, the Attorney General is not a stop from reputing a decision.

Speaker 8: 8:35

Sensing at least some skepticism on your first point. You want to address the second point, but the Chief has a question.

Speaker 4: 8:43

That's okay, I think you've voiced a sentiment.

Speaker 1: 8:45

Sure, I'm happy to turn to the second point, your Honour. So our second point is on the merits of the statute, which is that the Court of Appeals misconstrued Section 306.1. His law and conduct clearly violated a special condition. The special condition was remain drug free. And about two months later she didn't remain drug free, she was abusing amphetamines.

Speaker 2: 9:07

Is there any way she could have violated what you called the special condition to remain drug free without also violating the technical violation to refrain from the use, possession or distribution of controlled substances or related paraphernalia?

Speaker 1: 9:21

That would certainly be up to the Circuit Court's discretion. We have the court.

Speaker 2: 9:25

No, just as a matter of definition. Is there any way to refrain from the use of, possession or distribution of controlled substances or related paraphernalia? If you do that, by definition it will remain drug free, correct?

Speaker 1: 9:39

That's correct. I suppose there could be a situation where someone that was having use of paraphernalia that would not be drug use. But I do think that there and we also have the flip side argument that there are certain drugs that are not controlled substances. But regardless of whether, even if those two circles were overlapping, so even if the special condition had marked the words of the statute directly which again, that statute was not in place when the Circuit Court entered its sentencing order but even if the technical violation language and the special condition were overlapping, the argument would still remain, which is that because there's a special condition that was specially placed on MISDA lawn because of the unique circumstances, so the Circuit Court can evade the sentencing limitations under 3061 by just copying and pasting the 10 conditions and putting them in the order, and they're all they automatically.

Speaker 2: 10:30

Even though they're exactly the same conduct, same everything, they're transmogrified into special conditions.

Speaker 1: 10:35

No, your Honor, the Circuit Courts cannot evade the statute in that way. This Court made clear in the Murray case and other cases like it that the conditions that sentencing courts put on probationers are have to be reasonable. There's a background principle of reasonableness that oversees all of this.

Speaker 9: 10:52

So technical violations, 10 of them. You certainly can't argue that they're unreasonable. And so, following up on Justice Russell's question, if you just put those in another section and then identify them as special conditions, it seems to me that you're arguing that would be within the trial courts' prerogative and discretion.

Speaker 1: 11:11

So the trial court, in making a special condition, needs to look at the particular probationer before them and decide that because of the unique circumstances of that person, the nature of their crimes, that those specific conditions are necessary for rehabilitation.

Speaker 9: 11:25

I assume that this particular person just absconded and absconded, but the trial court didn't want to limit itself to the technical violation limitations. How is that not evading the statute by turning it into a special condition?

Speaker 1: 11:40

I think that's exactly the example that we would say makes this makes this our correct interpretation. The this court has always led has always ruled on these issues, with the background of having trial courts have discretion to be able to impose special conditions on probationers in order to help them rehabilitate. As for that example that you just mentioned, the probationer has a problem of scouting. If they keep absconding and absconding that, the circuit court might look at that person and say you need to have a special condition so that if you do abscond again, we can there could be more incarceration imposed on you in order to break that pattern.

Speaker 9: 12:13

Except if you keep repeating the technical violations at some point, the trial court does have the discretion to do pretty much anything. So how is this not completely redundant or, in the words of Justice Russell, an evasion of the legislative mandate?

Speaker 1: 12:29

It's not redundant because for the first technical violation there's zero days imposed and then for the second there's 14 days imposed. The General Assembly certainly wanted certain violations to low level violations, in the General Assembly's mind to have lower levels of incarceration. But for that particular person who keeps absconding it actually would be very beneficial for that person to be able to, even on the first and second time, have more time than 14 days or zero days imposed.

Speaker 9: 12:54

But what about the third time? I'm sorry, justice. The third time, though, the trial court can do anything it wants, so I said that's three. That's correct, Although one absconding is two. But my point is that if there's 60 years suspended and there's a third absconding, that court can revoke 60 years.

Speaker 1: 13:14

Your Honor. I see I'm in my rebuttal time as a lifer. That's correct, your Honor. But for those first and second times there might be, especially given the nature of that person's crime or the nature of that person's propensities, there might be a reason to have more incarceration. Even for those first and second times, I agree with you that third time, according to the statute, even under 306.1, we're back in the land of where it was before, where the circuit court could impose any amount of incarceration. But for that first and second time there might be a reason to be able to impose more incarceration.

Speaker 9: 13:44

My apologies, Justice Powell.

Speaker 4: 13:46

Have a question. Justice Powell, All right, you have one minute and 44 seconds.

Speaker 5: 13:50

Thank you, good morning, may it please the court. My name is Melissa Bray and I represent Emily DeLon in this case. The primary objective of statutory interpretation is to ascertain and give effect to the legislative intent expressed by the language using the statute, and when that language is unambiguous, courts are bound by that plain meaning. This court must determine legislative intent by what the statute says and not by what the court wishes it said or wanted it to say. The plain, unambiguous language of codes 192306 that references 192306.1 demonstrate the general assembly's intent to limit the authority of trial courts to impose active incarceration for certain violations of probation.

Speaker 6: 14:29

I interrupt you, going back to the question of consent. Assume for the sake of argument in my question that consent means expressed consent. It's not some implied or imputed consent by the courts. If I hand up an exhibit in a trial court to a trial court, that really has only one legal reason for it. But it's not a legal reason that I know I'm doing. I handed it up and it's been admitted. It doesn't mean I've consented to anything. And similarly, obviously, if I just walk in and don't object, a procedural default is not consent. So it seems to me the only plausible ground you have for consent is handing up the sentencing guidelines.

Speaker 6: 15:13

I was a trial court judge. I would never have assumed that there was any consent involved there. I would imagine that what the prosecutor's telling me is here's what the probation officer and his prosecutor's staff think it could be done this way, which is the way I interpreted the conversation between the judge and the prosecutor, which is I don't know, I don't know what's going on here. She's got a good point on the other side, but you do what you think is right. That doesn't strike me as consent. Tell me why I'm wrong.

Speaker 5: 15:41

I disagree with your rendition of what transpires. Not only were guidelines submitted by the prosecutor in the case and he gave the heads up to the trial court that defense counsel is going to have an objection to whether they're scored. Then, when the court brought that to defense counsel's attention, on page 170 of the joint appendix the Commonwealth, after defense argument regarding the scoring as a special condition versus a technical the Commonwealth the judge had indicated quote that's a new one. And in response the prosecutor said it's actually somewhat not new, it's been coming up. And he actually goes so far as to say and I specifically did it in this particular case so that it could be brought before this court.

Speaker 6: 16:18

If I'm sitting on the trial court bench, I'd hear that from the prosecutor and I'd say, all right, if I determine this is retroactive, this is how I handle it. And thank you, prosecutor, for telling me this is how I handle it. That's the way the sentencing hearings work, as I recall. I would not necessarily from that say to myself you just stipulated that this thing is, by consent, going to be retroactive under the statute.

Speaker 5: 16:40

So, just to be clear, I don't think there was any indication about anything being retroactive. Obviously, in these cases, the commonwealth attorney is in charge and has the sole discretion on how they prosecute cases. That is the authority that has been given to them and under the code 1-239, that same power also has the ability to decide what punishment scheme they would like to proceed on, with the consent of the defense counsel. So I don't, in this particular case, what you had was a prosecutor who was very specific that. The intent that I have is that I want this specific issue about whether this is technical or a non-technical violation to be brought before the court. That is actually said directly in the record. Additionally, guidelines are submitted in accordance with that this is the prosecutor saying.

Speaker 6: 17:19

if you rule is technical or not technical, you need to have this information and there's no reason to send me back to my office to redo this thing. I'm just giving it to you.

Speaker 5: 17:27

That is not how I read. What he said was I wanted this issue to be brought before the court, and that was just discussed. That he's referring to is whether you would score a failure to remain drug free as special or technical.

Speaker 2: 17:37

By definition, if we're not proceeding under 306.1, there is no discussion of special or technical, because there was no such thing.

Speaker 5: 17:46

That is correct. That wouldn't have applied otherwise Absolutely, and that is the whole argument. That's actually also what the trial court ruled on. So it's very unfair to all the parties that there's an agreement by a prosecutor who has the authority to make those agreements, to prosecute these crimes and to elect to change the punishment scheme with the agreement of the defendant and then to subsequently, because the representation for the Commonwealth changes, that all of a sudden the Attorney General can say no, we're not doing that. That would go against. That would actually make that code section completely moot and worthless.

Speaker 5: 18:13

Additionally, I would say that we keep referring to special conditions. That is not exactly what is encompassed in the statute. The statute makes very clear by its plain language that there are certain actions or failures of approbation or they're characterized as technical violations and they are enumerated very clearly. What section B says is that any non-technical violation or new law violation can be sentenced without being limited under this code section. So we say special condition. That's actually not what the code says. The code says any non-technical. Therefore, if any violation is a technical violation, it is limited to C, to subsection C. C, which is the 14 days for a second.

Speaker 8: 18:53

The trial court imposed additional things beyond simply remaining drug free. So go to rehab or do this, that and the other. Those were the things that were at issue. Would it be a different outcome?

Speaker 5: 19:07

Absolutely so.

Speaker 8: 19:08

in other words you don't resist the idea that courts have flexibility in specific cases to go beyond these sort of bare bones technical things and adapt the conditions to the individual You're just saying here. It just falls squarely within what has been labeled a technical violation.

Speaker 5: 19:25

That's absolutely correct. The court obviously has discretion the trial court to impose conditions as that court sees fit. However, the legislature, in these specific cases, with these ten enumerated behaviors or prohibitioners, has saw and fit to also limit the amount of active incarceration.

Speaker 2: 19:39

Following up on Justice McCullough's question, in Thomas, the Court of Appeals dealt with a condition regarding alcohol use and it was refrained from all alcohol use. The technical violation is refrained from alcohol use that causes you to have a problem with employment or not. I take it your argument is refrained from all alcohol use. Being different could be a special condition or a non-technical violation.

Speaker 5: 20:04

It absolutely could be. I think you'd have to look at the behavior. So obviously, what the code section enumerates is violation is based on a probationer's failure to do when it listed. So if the violation is based on a probationer's failure to do something that is not enumerated here, even if that condition so for example, if remain drug free, if for some reason the court included Tylenol, I think the argument would be that it's not a controlled substance, that is not going to be a technical violation. So if that was something that the court had put in there, that could potentially be a special condition then.

Speaker 5: 20:30

But in this case what we have was clearly controlled substances, illegal narcotics or things used not pursuant to prescription. So it was squarely within the technical violation created by and that is within the purview of the legislature to do and I think this court has held that a trial court has no inherent authority to depart from the range of punishment legislatively prescribed. And that is clearly what the legislator did here. And I think that's even more evident at Section D, which does not apply in this case, but that begins the limitations on sentencing in this section. So that's the first part, and then they give it when it doesn't apply. However, it makes very clear that the legislator's intent was to put limitations on sentencing and this particular violation flows directly from that.

Speaker 5: 21:13

Now, in terms of there not being an agreement, I first of all would say that it is our position that the assignment of error from the commonwealth does not actually encompass whether there was an agreement. The assignment of error encompassed that the Attorney General was not bound by that agreement. However, I would argue, as is going to allude to already, that there was absolutely an agreement to go forward. The trial counsel for the commonwealth on the record stated that it was their intent that the trial court rule on this particular issue, and the issue that was being ruled on is not on whether this code section applied. It was on whether this was a technical or a non-technicalized.

Speaker 8: 21:49

Isn't this a sort of a classic law of the case? In other words, you have procedural defaults a little bit different, and then this line of cases about these new sentencing things. There's that. But when everybody I mean, you see it, with jury instructions and with other things everybody's on exactly the same sheet of music, not with respect to the technical and special, but as to the applicability of the scheme. Why isn't this just garden variety law of the case?

Speaker 5: 22:19

I think that's definitely an argument.

Speaker 8: 22:20

I don't know that's a hostile question. I'm just trying to wrap my brain around what silo we're in.

Speaker 5: 22:25

And I've obviously been reading the cases on that. I do think that in those cases, obviously it limits the appeal, the appellate issues, the idea, and that would be very consistent with this case, more so than I think Enray Brown and Enray Commonwealth, which obviously dealt with very different issues, some of them with different powers that are delegated to the Attorney General versus the trial court. I think that's much more applicable to what is what happened in this specific case. And then finally, I would the argument is that the Commonwealth is actually bound by the position taken by the trial court, even on appeal. To begin with it wasn't an erroneous position.

Speaker 5: 22:54

A lot of the cases that are cited meant are relating to the Commonwealth agreeing to things that later on the courts held they could not were not actually valid. That is not the case here. Obviously there's an actual statute that was that's being used and so therefore it's a completely valid thing. And Enray Brown actually delegated the idea that the trial attorney for the Commonwealth or the prosecutor gets to decide how they try a case. They get to pick the charges. That is their lane and the Attorney General. In that case I think it was a rin of innocence and they were saying those are for the Attorney General. So the fact that the Attorney General had a different position from the prosecutor was irrelevant, because they have different positions and they're allowed to have different opinions. So the Attorney General in this case could feel like it was a mistake to consent or to agree to go forward on the new code section, but that's not in their purview. That is in the purview of the prosecutor.

Speaker 6: 23:43

So it seems to me, on this issue of consent, everything boils down to your argument on page 12. There was an implicit agreement, so we have to interpret consent to be an implied consent.

Speaker 5: 23:57

And I will. So I think it's actually expressed. There's not a signed waiver, as what I was trying to apply. Clearly, there's the case that they cited, where there's an actual document that's executed and presented to the court.

Speaker 6: 24:07

I'm characterizing your argument. I'm reading it.

Speaker 5: 24:09

No, and I realized I chose that word. I was trying to suggest that there's not like a written document that was signed and presented to the court. It wasn't something. However, I think if you take the actual language used by the prosecutor, it's pretty clear. It's very expressed in his language that it was his intent that the court rule on this. Now I know that the Attorney General is presuming the commonwealth was unaware that the statute didn't apply, but I think that goes well beyond what the record establishes.

Speaker 6: 24:32

A very pretty Isn't that the most natural reading? The prosecutor didn't appreciate it was not retroactive. They didn't get to the question of consent the prosecutor's mind, because he or she didn't even know it.

Speaker 5: 24:41

When the judge questioned him he said I'm trying to be fair.

Speaker 5: 24:44

So I think a completely reasonable rationale that the court could look at is that he decided that it was fair to go forward on a new code section. But that would be the appropriate way and that happens in other cases where prosecutors agree to when something's been reduced to a misdemeanor, it doesn't mean they don't know it wasn't a felony at the time. They may just think that is the prudent thing and the appropriate thing to do in that case. With the facts of that case and I think that's what you see here, especially with the expression by the prosecutor that he wanted that issue to be decided by the court because it's been coming up about how to score these guidelines I think that there's an assumption being made that that means that he was ignorant of that, which I don't think is at all what it says. He was aware of his powers and his ability and chose to exercise them appropriately. For that reason I would argue that the court of appeals was correct in its findings and asked the court to affirm.

Speaker 4: 25:29

Thank you, counsel. I've got a question for you. If the commonwealth has to make an election and it's like you do or you don't and the court seemingly makes an election for them and they remain silent, why wouldn't that be considered a sent to the election that the court thinks that they are making?

Speaker 1: 25:51

I think, your Honor, that what is required is that affirmative election, and I would point this court again to that awkward case where there was an affirmative, a form submitted that has an affirmative election to it. I don't think that we should interpret silence to be consent in this situation, given the fact that you were asking the commonwealth's attorney to apply a statute, that would not have been an effect at that point.

Speaker 4: 26:13

But the court's got to apply a statute going forward. Right, you're in front of me, I'm the judge, I'm deciding something, and I tell you I'm going to apply this statute and you go okay, I'm going to apply the statute, and you go through the whole case and I decide it, and then on appeal you say I didn't consent to that. How can that?

Speaker 1: 26:30

be. I think there's two points, your Honor. First of all, I don't think there was that sort of ceremony where the judge said I'm going to apply the statute Like we've been discussing. He did. That's what happened. There was a discussion of the application of the statute, certainly, but not a discussion that the statute would apply specifically.

Speaker 4: 26:45

There was just a discussion of the technical violations and things like that, and then implicit in that was I'm going to apply the statute and the commonwealth says great, I want you to, because I'm wondering if you could figure out the answer to this question. So yeah, of course we're going to apply the statute, going forward.

Speaker 1: 27:00

And again I would point your Honor to you. As you said, implicit, I think there was an implicit discussion. There was not an express agreement.

Speaker 4: 27:06

So he gets to come back later on appeal to say judge made a mistake at the trial because he applied the wrong law.

Speaker 1: 27:13

Your Honor. I see I'm in the end of the talk, yeah go ahead I think two things are relevant there, your Honor.

Speaker 1: 27:17

So first of all, in this court has a case in red commonwealth. There's a different in red commonwealth than we were talking about all day, but it's in our brief. In that situation the commonwealth's attorney was representing the party both at the circuit court level and on appeal, and this court held the commonwealth's attorney. Can't appropriate and reprobate, Hypothetically, if the commonwealth's attorney had handled the appeal. You may have a point where it would be a little bit disingenuous to go forward with 306.1 and then come forward and say, actually, I never elected to do so. However, this is a different situation. This is a situation in which the commonwealth's attorney had this colloquy and now the attorney general has taken over the appeal Because of this court's cases in red commonwealth, in red brown. The constitutional differences between those two officers is just a different scenario.

Speaker 4: 27:59

Wow, going forward. We know how our system works for the Commonwealth takes over on appeal, so you don't take a position in court because you know the Commonwealth's attorney can take a different position on appeal if it helps the Commonwealth to win the case.

Speaker 1: 28:13

I would point this court to his opinions Inray Commonwealth, Inray Brown, which I think lay out the way that this system works, because in that way I'm sorry I took up your time.

Speaker 4: 28:22

Go ahead, we're going to give you another minute Sure, thank you.

Speaker 1: 28:25

Just two minor points on rebuttal.

Speaker 3: 28:27

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Speaker 1: 28:37

Visit our website at BenGlassLawcom or call us at 703-591-9829 for more information and a free evaluation of your so first of all, on the issue of that, we've just been discussing about whether there was an express election. I think we were. There's some discussion from Justice McCullough about everyone being on the same sheet of music. I would just invite the court to read that transcript over. I don't think everybody was on the same sheet of music. As to the specific question of applying a retroactive statute, I just don't think the retroactivity of the statute came up. And then, at number two, the my friend on the other side said that there is a distinction in the statute between technical violations and non-technical violations. I would invite this court to look at the language of the statute.

Speaker 1: 29:17

Non-technical violations is nowhere in the language of the statute. Specifically, subsection B makes two points that are very clear. First of all, if the circuit court finds that the violation of the probation was a condition other than a technical violation and I'm emphasizing that finds word. That is a significant issue where the circuit court has the discretion to find what the basis of the violation is. Here the circuit court certainly found that it was a violation of a special condition. And then, secondly, that language of condition other than a technical violation. There certainly was a condition other than a technical violation here. It's that special condition that should remain drug-free. Unless there are any further questions we'd ask of the court of appeals, it should be reversed.

Speaker 4: 29:55

Thank you.

Speaker 1: 29:56

Cal.

Speaker 4: 29:56

Thank you. Please call the next case.

Speaker 3: 29:58

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