Background
John Antonio Fennell began supervised probation in 2019 after serving part of a 48-year sentence for robbery, grand larceny, receiving stolen property, and firearm convictions. Following repeated drug use, his suspended sentence was revoked and resuspended after an earlier probation violation. He later tested positive for additional controlled substances and repeatedly failed to report for treatment and required check-ins.
At a March 2025 revocation hearing, Fennell stipulated that he had violated probation. The circuit court found that he could not safely be diverted from incarceration through less restrictive means and imposed seven days of active incarceration for his second technical violation. In explaining its decision, the court interpreted Virginia Code § 19.2-306.1(C) as requiring some incarceration once that finding was made.
The Court’s Holding
The Court of Appeals affirmed. The majority held that Fennell failed to preserve his argument that § 19.2-306.1(C) permits, but does not require, incarceration for a second technical violation. Although Fennell argued below that incarceration would send the wrong message and that the evidence did not support the statutory diversion finding, he did not alert the circuit court that its interpretation of the word “may” improperly treated incarceration as mandatory. He also did not invoke Rule 5A:18’s good-cause or ends-of-justice exceptions in his opening brief.
The court further held that an appellate court may enforce Rule 5A:18 on its own initiative even when the Commonwealth did not raise preservation in its merits brief. The appellee’s silence does not cure an appellant’s failure to make a contemporaneous objection. The majority also concluded that the record supported the circuit court’s decision to impose the seven-day sentence. A dissent would have found the statutory issue preserved, reversed the active sentence, and remanded for resentencing under the correct understanding that incarceration remained discretionary.
Key Takeaways
- An appellant must specifically object to a trial court’s statutory interpretation; related arguments about sentencing policy or evidentiary sufficiency may not preserve that distinct legal claim.
- The Court of Appeals may invoke Rule 5A:18 sua sponte even if the appellee omitted the preservation issue from its merits brief.
- For a second technical probation violation, § 19.2-306.1(C) authorizes up to 14 days of incarceration after the required statutory finding, but does not establish a mandatory minimum sentence.
Why It Matters
The decision underscores that Virginia practitioners must correct a trial court’s mistaken understanding of its sentencing authority while the court still has an opportunity to act. A general request for leniency or an argument that statutory facts were not proved will not necessarily preserve a separate claim that the court misconstrued the governing statute.
The published opinion also confirms that preservation rules protect the trial court’s decisional process, not merely the appellee’s interests. Consequently, an appellant cannot rely on the Commonwealth’s failure to identify a Rule 5A:18 defect.