Commonwealth v. Jackson: Defining the Limits of “Acceptance of Responsibility” in Virginia Probation Revocation Sentencing

I. Introduction

In Commonwealth v. Jackson (Supreme Court of Virginia, Nov. 20, 2025), the Court confronted a recurring and sensitive question in sentencing law: when may a judge consider a defendant’s “failure to accept responsibility” without impermissibly punishing the defendant for exercising the right to plead not guilty and contest allegations?

The case arises from a probation revocation proceeding, not an original criminal trial. David Michael Jackson, a defendant with an extensive criminal record (20 felony and 7 misdemeanor convictions), was on supervised probation when he committed both new crimes and so‑called “technical” probation violations (missed appointments, failed drug tests, absconding, etc.). At his revocation hearing, he:

• Pleaded guilty to probation violations based on new criminal convictions (Condition 1 violations), but
• Pleaded not guilty to technical violations (Conditions 4, 6, 8, 11).

The circuit court revoked and resuspended a portion of his previously suspended time, imposing two years of active incarceration. In explaining its sentencing choice, the court noted, among other factors, that Jackson had not “taken responsibility” for his technical violations. The Court of Appeals interpreted this as the court penalizing Jackson for his decision to plead not guilty to those violations and reversed for resentencing.

The Supreme Court of Virginia disagreed and reversed the Court of Appeals, reinstating the sentence. The opinion clarifies:

• How the “acceptance of responsibility” factor may be used at sentencing, including in a probation revocation context;
• When consideration of a defendant’s lack of remorse or responsibility crosses the constitutional line into punishing the defendant for exercising the right to plead not guilty; and
• The high threshold—an “explicit link” between a sentence and a not‑guilty plea—before an appellate court will find such error.

While the Court leaves unresolved whether the full Lawlor v. Commonwealth doctrine applies identically to revocation hearings, it assumes that it does for purposes of decision and holds that the circuit court stayed within lawful bounds.

II. Summary of the Opinion

The Supreme Court’s holding can be summarized as follows:

1. Issue: Did the circuit court improperly aggravate Jackson’s sentence because he pleaded not guilty and contested his technical probation violations, in violation of the rule that a court may not punish a defendant for exercising the right to plead not guilty?
2. Framework (assumed, not decided): The Court assumes, without deciding, that the doctrinal constraints recognized in Lawlor v. Commonwealth (2013)—prohibiting sentencing courts from penalizing a defendant for a not‑guilty plea or prior claim of innocence—apply in the probation revocation setting.
3. Key standard: Borrowing from Maryland cases already adopted in Lawlor, the Court re‑affirms that:
   • A judge may consider a defendant’s “present tense” lack of remorse or failure to accept responsibility as bearing on rehabilitation and sentencing,
   • So long as that consideration is not explicitly linked to the defendant’s prior plea of not guilty, claim of innocence, or exercise of the right to remain silent.
4. Application to Jackson: The Court holds that:
   • The circuit court’s statement that “the opposite of acceptance of responsibility can be considered” was a permissible recognition that lack of acceptance removes mitigation rather than an impermissible enhancement of a baseline sentence as punishment for going to trial.
   • The court’s later remark that Jackson had not “taken responsibility” for the technical violations, and that this was “a factor” among others, was a present‑tense assessment of his rehabilitation prospects and excuses—not an “explicit” reference to his decision to plead not guilty.
5. Disposition: The Court of Appeals erred by reading the circuit court’s comments as explicitly punishing Jackson for pleading not guilty. The Supreme Court reverses and enters final judgment reinstating the circuit court’s revocation sentence.

III. Factual and Procedural Background

A. Original convictions and probation

In 2018, Jackson pleaded guilty to:

• Larceny with intent to sell (Code § 18.2‑108.01), and
• Driving with a revoked license, third or subsequent offense (Code § 46.2‑301).

The trial court imposed:

• For larceny: 5 years with 3 years 10 months suspended, conditioned on 5 years of supervised probation;
• For driving revoked: 12 months with 11 months suspended, also conditioned on 5 years of supervised probation.

After completing his active sentences, Jackson began supervised probation in May 2021.

B. The probation violations

Between late 2021 and 2023, Jackson accumulated a series of violations:

1. Drug-related noncompliance (early 2022)
   • Missed three urine screens in November 2021.
   • Tested positive for cocaine in February and March 2022.
   • Referred for, and briefly entered, substance abuse treatment in March 2022.
2. Missed contacts and claimed motorcycle accident
   • Failed to report for an April 12 urine screen and to report to his probation officer on April 13.
   • The probation officer issued a Major Violation Report (MVR) alleging violations of:
     • Condition 6 – general noncompliance;
     • Condition 8 – positive drug screens.
   • On April 20, Jackson told his probation officer he had been in a motorcycle accident leaving him bedridden. His mother later testified the accident occurred April 14—after the MVR.
   • He missed a scheduled May 19 phone check‑in.
3. Additional noncompliance and new arrests (mid‑2022)
   • Charged May 4 with driving under a revoked/suspended license.
   • Arrested May 9 on probation violation charges; failed to report that arrest or his release.
   • Failed to appear for a June 1 office appointment.
   • Discharged from the treatment program in July for lack of contact.
   • An addendum to the MVR alleged:
     • Condition 4 – failure to report to probation;
     • Condition 11 – absconding from supervision.
4. Further criminal conduct (late 2022–2023)
   • October 2022: arrested again for numerous offenses, including assault and battery, abduction, destruction of property, reckless driving, failure to report an accident, driving on a revoked license, failure to appear, and construction fraud.
   • Further MVR addenda alleged a violation of:
     • Condition 1 – obey all laws, based on these new charges and later convictions.
   • By March 2023, Jackson had sustained:
     • A felony hit‑and‑run conviction;
     • A misdemeanor construction fraud conviction;
     • A misdemeanor reckless driving conviction.

C. The revocation hearing and the contested colloquy

At the probation revocation hearing:

• Jackson pleaded guilty to the Condition 1 violations (new criminal convictions);
• He pleaded not guilty to the four technical violations:
  • Condition 4 (reporting),
  • Condition 6 (noncompliance),
  • Condition 8 (positive drug test), and
  • Condition 11 (absconding).

The defense theory as to the technical violations was essentially:

• Jackson’s serious motorcycle accident and resulting injuries impaired his ability to appear, walk, work, and even think clearly (alleged hallucinations),
• He remained at his mother’s house, the address on file with probation, and
• The probation officer should have attempted to locate him there instead of treating him as absconding.

The prosecutor, by contrast, emphasized that Jackson:

• Missed multiple urine screens and appointments;
• Used cocaine;
• Failed to report arrests;
• Failed to follow instructions;
• Was, in the probation officer’s words, noncompliant and uncooperative.

The circuit court found Jackson guilty of the Condition 1 violations (to which he had pleaded guilty) and all four technical violations (to which he had pleaded not guilty).

Sentencing phase: guidelines, “acceptance of responsibility,” and objections

At sentencing, the prosecutor introduced Jackson’s criminal record: 20 felony convictions (including 7 prior felony probation violations) and 7 misdemeanors. Defense counsel urged leniency, arguing that:

• The technical violations were mitigated by the serious accident;
• By the June 2023 hearing Jackson had recovered enough “to move on with his life.”

A critical procedural point arose about Code § 19.2‑306.1, which regulates sentencing ranges for probation violations, particularly technical violations. The prosecutor noted that:

• She had suggested treating all violations as a single probation violation event,
• But defense counsel had insisted on separate pleas and separate findings on each Condition.

Defense counsel objected that this was tantamount to arguing for a harsher sentence because the defendant had “exercised his trial rights” by demanding separate adjudications. The prosecutor disclaimed any such intent, saying she was merely asking the court to treat the violations as defense counsel had requested.

The circuit court then made remarks about the statutory sentencing guidelines and “acceptance of responsibility”:

• It noted that the legislature had modified sentencing guidelines forms to allow a downward adjustment when a defendant accepts responsibility.
• From that, the court reasoned that “the opposite of acceptance of responsibility can be considered by the court in imposing sentence.”

The prosecutor took this a step further, arguing:

• “If somebody pleads not guilty or they present certain things, you can absolutely argue that the sentence should be higher than if they had pled guilty and accepted responsibility.”

Defense counsel objected that:

• She had not asked the court to consider acceptance of responsibility as a mitigating factor for the Condition 1 violations in this case,
• And that it was unfair to argue the inverse—i.e., that Jackson should receive a higher sentence—because he went to a hearing on the technical violations.

The prosecutor replied that “somebody who pleads not guilty and is found guilty is not in the same position as somebody who pleads guilty.”

The sentence and the specific remarks challenged on appeal

The circuit court ultimately:

• Revoked Jackson’s previously suspended 4 years 9 months;
• Resuspended 2 years 9 months;
• Imposed 2 years active incarceration, with credit for time served.

In explaining its sentencing choice and its departure from the advisory guidelines, the court relied on:

• Jackson’s extensive criminal history (20 felonies, 7 misdemeanors, prior probation violation);
• The seriousness and similarity of the new criminal offenses to his past crimes; and
• The fact that there were “other Conditions that were violated in this most recent attempt at probation” and that “responsibility was not taken” for them — a factor the court said it “can consider amidst all the others.”

These last statements—about “the opposite of acceptance of responsibility” and about “responsibility was not taken”—became the focal points of the appeal.

D. Court of Appeals decision

On appeal, Jackson argued that the circuit court improperly considered his decision to contest the technical violations as an aggravating sentencing factor.

The Court of Appeals:

• Recognized that a “failure to accept responsibility” can be an aggravating factor if it reflects the defendant’s present‑tense position at sentencing;
• Held it is improper when that factor is “explicitly linked to the defendant’s plea of not guilty”; and
• Concluded that the circuit court had given “significant weight” to Jackson’s plea of not guilty and request for trial in framing the sentence.

It therefore reversed and remanded for resentencing.

E. Supreme Court of Virginia’s resolution

The Supreme Court reversed, holding that the Court of Appeals misinterpreted the sentencing judge’s remarks. The high court:

• Assumed, without deciding, that the Lawlor doctrine (prohibiting punishment for a not‑guilty plea) applies similarly to revocation proceedings;
• Reaffirmed that lack of remorse and failure to accept responsibility are legitimate sentencing factors if assessed in present tense and not explicitly tied to the exercise of trial rights;
• Held that, viewed in full context and under the presumption of correctness accorded to trial rulings, the circuit court’s comments were permissible.

IV. Precedents and Authorities Cited

A. Lawlor v. Commonwealth (2013) and the “present tense” rule

Lawlor v. Commonwealth, 285 Va. 187 (2013), was a capital case in which the defendant was sentenced to death. The trial court, in adopting the jury’s death recommendation, explicitly criticized Lawlor’s earlier defense strategy and assertion of innocence during the guilt phase as showing lack of remorse.

The Supreme Court of Virginia held that:

• It is permissible to consider a defendant’s current, present‑tense refusal to accept responsibility or show remorse at the time of sentencing.
• It is impermissible to punish the defendant for a prior claim of innocence or not‑guilty plea or for exercising the right to remain silent.

Lawlor lacked a pre‑existing Virginia precedent on this point, so it expressly adopted reasoning from Maryland’s Jennings v. State and Saenz v. State, and from the Court of Appeals’ earlier decision in Smith v. Commonwealth.

B. Maryland cases: Jennings and Saenz

Two Maryland cases undergird the doctrine:

• Jennings v. State, 664 A.2d 903 (Md. 1995)
  • Held that a sentencing court may consider lack of remorse as it relates to the defendant’s rehabilitation potential.
  • Emphasized that this is proper “so long as it is not explicitly linked to the defendant’s prior claim of innocence or not guilty plea or exercise of his right to remain silent.”
• Saenz v. State, 620 A.2d 401 (Md. Ct. Spec. App. 1993)
  • Articulated the same distinction between impermissible punishment for exercising rights and permissible consideration of present‑tense lack of remorse.
  • Described acceptance of responsibility as the “first step in rehabilitation.”

Lawlor expressly embraced this “explicit linkage” standard, and Jackson re‑applies it, now in a probation revocation context.

C. Smith v. Commonwealth (Va. Ct. App. 1998)

In Smith v. Commonwealth, 27 Va. App. 357 (1998), the defendant entered an Alford plea (maintaining innocence while acknowledging the prosecution’s evidence could result in conviction). The Court of Appeals, drawing on Saenz and Jennings, held that:

• A sentencing court may treat the defendant as guilty for sentencing purposes;
• A judge may consider the defendant’s lack of remorse or failure to accept responsibility as bearing on rehabilitation;
• But may not sentence more harshly because the defendant previously asserted innocence or exercised trial rights.

Jackson relies on Smith as part of the doctrinal backbone for the acceptance‑of‑responsibility analysis.

D. Revocation proceedings are not criminal prosecutions: Jackson (2004), Johnson, Henderson, and others

The Court in Commonwealth v. Jackson (2025) also situates this case within long‑standing Virginia and federal doctrine that probation revocation is not simply another phase of a criminal prosecution. Key points and cases:

• Different proceeding from original trial:
  • Commonwealth v. Jackson, 267 Va. 226 (2004): a revocation hearing, although “criminal in nature,” is not a “stage of a criminal prosecution.”
• No right to jury:
  • Under both U.S. and Virginia Constitutions, the jury right attaches to “criminal prosecutions.” Revocation is not such a stage. See, e.g., Johnson v. Commonwealth, 296 Va. 266 (2018).
• Relaxed procedural protections:
  • No proof beyond a reasonable doubt; a lower standard applies in revocation.
  • No automatic right to appointed counsel in all revocation contexts.
  • The exclusionary rule (Fourth Amendment) does not necessarily bar illegally seized evidence at revocation.
  • The ordinary rules of hearsay and confrontation are relaxed; reliable hearsay may be admissible.

In Jackson, the Court catalogs these differences (with citations to federal and state authorities) to show that revocation proceedings do not carry the “full panoply” of trial rights. However, the Court declines to decide whether this structural difference means the Lawlor acceptance‑of‑responsibility doctrine is inapplicable or modified in revocation hearings. Instead, it resolves the case assuming the doctrine applies equally, thereby leaving that broader issue open.

E. Bordenkircher v. Hayes and the “punishing for what the law allows” principle

The Court cites Bordenkircher v. Hayes, 434 U.S. 357 (1978), for the proposition that a defendant cannot be punished simply for doing “what the law plainly allows him to do” (e.g., pleading not guilty, going to trial). This animates the Lawlor rule and frames the question: did the circuit court punish Jackson for exercising a lawful choice?

F. Early, Coward, and reading trial court remarks in context

The Court invokes:

• Early v. Commonwealth, 86 Va. 921 (1890): everything is presumed in favor of the correctness of a trial court’s rulings “until the contrary is shown.”
• Coward v. Wellmont Health Systems, 295 Va. 351 (2018), and Suffolk City School Board v. Wahlstrom, 302 Va. 188 (2023): appellate courts should not seize on “isolated statements” of a trial judge taken out of context to conclude that the law has been misapplied.

These principles play a central role: they undercut the Court of Appeals’ willingness to read two discrete sentencing remarks as conclusive proof of an improper motive, rather than viewing them within the entirety of the record and legal framework.

G. Sentencing guidelines and acceptance of responsibility

The opinion references:

• Virginia’s voluntary Sentencing Guidelines, Code § 19.2‑298.01, which list “Acceptance of Responsibility” and “Expression of Remorse” as mitigating factors.
• Virginia Probation Violation Guidelines (Code § 19.2‑306.2), which allow mitigation where the judge finds “good rehabilitation potential.” Lack of responsibility bears directly on that question.
• Federal case law applying similar concepts under the U.S. Sentencing Guidelines (e.g., cases recognizing reductions for “acceptance of responsibility”).

This context supports the Court’s core point: recognizing acceptance of responsibility as a mitigating factor logically implies that its absence may justify withholding mitigation. That, by itself, is not the same as punishing someone for going to trial.

V. The Court’s Legal Reasoning

1. The unresolved threshold: Does Lawlor fully apply to revocation?

The opinion begins its analysis by acknowledging that Lawlor and its progeny arise in the context of initial sentencing after conviction, not in probation revocation proceedings. Importantly:

• A revocation hearing is “criminal in nature” but not part of the “criminal prosecution.”
• Many constitutional trial rights do not apply in full in revocation proceedings.

The parties and the Court of Appeals, however, had assumed that the same acceptance‑of‑responsibility constraints apply equally. The Supreme Court notes that there is “much to say opposing” such an assumption but decides not to resolve it due to inadequate briefing. Instead:

For purposes of this case only, the Court assumes that Lawlor’s doctrine applies “no differently to a revocation hearing than to a plenary criminal trial,” and then asks whether the trial court violated it under that generous assumption. It concludes it did not.

2. Acceptance of responsibility as mitigation, not automatic punishment

A crucial conceptual move in the opinion is distinguishing between:

• Mitigation: reducing an otherwise appropriate sentence when a defendant accepts responsibility and shows remorse; and
• Impermissible punishment: increasing a baseline sentence solely because the defendant exercised the right to plead not guilty or maintained innocence.

The Court notes that sentencing guidelines explicitly reward acceptance of responsibility. From that, the trial judge reasoned that “the opposite of acceptance of responsibility can be considered by the Court in imposing sentence.” The Supreme Court interprets this as follows:

• A sentencing judge must start with some baseline within the statutory range.
• If the defendant shows acceptance and remorse, the court may mitigate downward from that baseline.
• If the defendant does not show such acceptance, then there is simply no downward adjustment on that ground.

According to the Supreme Court, this is not equivalent to adding a “trial penalty.” Rather, it is the absence of a benefit, not the addition of a punishment, and is consistent with both Virginia and federal guidelines practice.

3. Evaluating the first challenged statement: “the opposite of acceptance of responsibility”

The first crucial statement came during the sentencing colloquy:

“Well, at sentencing, of course, the legislature modified the statute and they’ve modified it on the sentencing guidelines form, that the Court can take into consideration in lowering the guidelines, acceptance of responsibility. … [T]he opposite of acceptance of responsibility can be considered by the Court in imposing sentence.”

The Supreme Court reads this statement in context as:

• A logical corollary of the guidelines’ mitigation scheme,
• Not an explicit statement that the court would enhance the sentence because Jackson pleaded not guilty,
• But rather a statement that no mitigating credit would be given in the absence of demonstrated responsibility.

The Court emphasizes:

• The judge did not say he was imposing a harsher sentence than he otherwise would have imposed specifically because of Jackson’s not‑guilty plea.
• Given Jackson’s extensive criminal history and the fact that the court could have imposed the entirety of his remaining suspended time based solely on the new convictions, the precise content of his plea to the technical violations is relatively minor in context.

Under the Lawlor/Jennings standard, this remark does not cross the line into an “explicit link” between sentence severity and the exercise of trial rights.

4. Evaluating the second challenged statement: “responsibility was not taken … a factor”

The second crucial statement came when the court justified its sentence:

The court considered “the other Conditions that were violated in this most recent attempt at probation” and noted that “responsibility was not taken” for these violations—“a factor the Court can consider amidst all the others.”

Jackson and the Court of Appeals read this as the judge explicitly punishing him for having pleaded not guilty to the technical violations. The Supreme Court takes a different view:

• The statement makes no reference to the plea (guilty or not guilty) at all.
• It is instead a “present tense” evaluation of Jackson’s attitude and conduct, especially:
  • The excuses presented (motorcycle accident causing incapacity);
  • The mother’s testimony about extreme debilitation, contrasted with his ongoing criminal activity during the supposed period of incapacity;
  • His failure to maintain contact with probation even by phone.

From the Court’s perspective, the sentencing judge was entitled to conclude that Jackson’s claimed acceptance of responsibility (“I accept responsibility” and asking for “one last” chance) was contradicted by:

• The objective record of repeated, serious, and similar criminal conduct; and
• The weak or implausible nature of the proffered justifications for his technical noncompliance.

On that basis, the Supreme Court characterizes the remark as a permissible finding that Jackson had poor rehabilitation potential, not as punishment for contesting the allegations. Under the Jennings/Saenz standard, the absence of an “explicit reference” connecting the lack of responsibility to the not‑guilty plea is decisive.

5. Rehabilitation, lack of remorse, and sentencing goals

The Court emphasizes that, alongside:

• Retribution (just deserts);
• Deterrence (both specific and general); and
• Incapacitation (protecting society through confinement),

Rehabilitation remains one of the four primary goals of criminal punishment, as described recently in Johnson‑Bey v. Commonwealth, 303 Va. 386 (2024). A sentencing judge legitimately may (and arguably must) consider:

• Whether the defendant shows genuine insight into wrongdoing,
• Whether he accepts responsibility,
• And whether his conduct during supervision suggests he can successfully complete probation.

Within that framework:

• A defendant’s present lack of remorse or responsibility is a rational, and often powerful, indicator of poor rehabilitation prospects.
• This is particularly acute in a probation revocation setting, where the defendant is being evaluated after being given a prior “act of grace” (a suspended sentence and supervision).

Thus, the sentencing judge’s skepticism about Jackson’s willingness or ability to comply with probation going forward—grounded in his conduct and unpersuasive excuses—was a permissible sentencing factor.

VI. Impact and Implications

A. High bar for proving a “trial penalty” on appeal

Jackson confirms that Virginia places a high burden on defendants who claim they were punished for exercising the right to plead not guilty:

• The appellate court must find an explicit link between the sentence and the defendant’s not‑guilty plea or assertion of innocence.
• Mere suspicion, ambiguous comments, or statements equally consistent with a permissible focus on rehabilitation or lack of remorse will not suffice.
• The presumption of correctness and the admonition against parsing isolated comments make it harder to overturn a sentence on this ground.

Practically, defense counsel challenging sentencing remarks will need to build a record that:

• Shows clear, express references by the judge tying the increased sentence to the defendant’s decision to plead not guilty or go to a hearing; and
• Shows that these improper considerations were material to the sentencing decision, not simply incidental comments in a broader, proper rationale.

B. Acceptance of responsibility in revocation hearings

Even though the Court stops short of definitively holding that Lawlor applies fully to revocation, Jackson strongly signals that:

• Sentencing judges may consider a probationer’s current lack of remorse or responsibility in choosing whether to revoke and how much time to impose.
• The defendant’s explanations for noncompliance—if implausible or inconsistent with the record—may justify findings that he has not genuinely accepted responsibility.
• The fact that a defendant contested technical violations does not, by itself, convert such a finding into constitutional error, so long as the judge does not draw an explicit connection between the not‑guilty plea and the sentence.

This will shape how:

• Defense counsel frame arguments at revocation: they must weigh the potential benefits of contesting technical violations against the risk that unsuccessful defenses may be read as evasiveness or lack of responsibility.
• Prosecutors argue at sentencing: they remain free to highlight the defendant’s ongoing excuses and denial of responsibility, but must avoid explicitly urging the judge to punish the defendant for merely insisting on a hearing.
• Judges explain sentences: they should carefully couch any discussion of lack of remorse or responsibility in terms of present‑tense attitude and rehabilitation, without explicit references tying punishment to the exercise of trial rights.

C. Revocation as an “act of grace” and limits on constitutional protections

The opinion reinforces the characterization of suspended sentences and probation as an “act of grace” with a remedial purpose—to rehabilitate the offender. When that grace is abused, courts retain broad discretion to revoke and reimpose suspended time.

By cataloging the rights that do not fully apply at revocation (jury, standard of proof, exclusionary rule, etc.), the Court hints that there may be room in future cases to argue that some doctrines developed for plenary criminal trials either:

• Do not apply at all in revocations, or
• Apply in a more limited fashion.

However, because Jackson resolves the case on the assumption that Lawlor does apply, that larger constitutional question remains open for future litigation.

D. Constraining the Court of Appeals’ approach

The decision notably reins in the Court of Appeals’ more aggressive reading of trial court comments. The Supreme Court sends a clear signal:

• Appellate courts must read sentencing remarks holistically and deferentially,
• Must resist the temptation to extrapolate an unlawful motive from ambiguous or isolated phrases, and
• Should not lightly conclude that a trial judge has misapplied Lawlor absent an explicit and clear connection between sentence severity and the defendant’s assertion of trial rights.

VII. Complex Concepts Simplified

1. “Acceptance of responsibility” vs. “punishment for going to trial”

These two ideas must be carefully distinguished:

• Acceptance of responsibility: When a defendant acknowledges wrongdoing, expresses genuine remorse, and cooperates, judges and guidelines often treat that as a reason to reduce the sentence (mitigation).
• Punishment for going to trial: It is unconstitutional to increase a sentence because the defendant exercised the right to plead not guilty, maintain innocence, or remain silent. The law does not allow courts to punish people for asserting protected rights.

Jackson makes clear that:

• The absence of acceptance of responsibility can mean no mitigation, which is permissible.
• But a judge cannot say, in effect: “I am adding more time because you had the nerve to plead not guilty.” That would be impermissible.

2. “Present tense” lack of remorse

“Present tense” refers to the defendant’s attitude at the time of sentencing. A court may legitimately ask:

• Does this person, today, understand what they did was wrong?
• Are they taking responsibility now, or still offering evasive or implausible excuses?

This is different from punishing the defendant for:

• Previously insisting on innocence at trial, or
• Refusing to testify or confess during the prosecution phase.

3. “Explicit link” standard

Under Lawlor, Jennings, and now Jackson, the key test is whether the trial court’s consideration of lack of responsibility is “explicitly linked” to the defendant’s not‑guilty plea or other exercise of trial rights.

“Explicit” means:

• The judge clearly, on the record, connects the harsher sentence to the fact that the defendant:
  • Pleaded not guilty,
  • Went to trial, or
  • Maintained innocence.

Anything short of that—particularly where the remarks can reasonably be understood as addressing present‑tense remorse and rehabilitation—will typically be upheld.

4. Technical vs. “new law” violations in probation

Probation conditions are often divided into:

• “New law” violations (e.g., committing new crimes, violating Condition 1 to obey all laws);
• Technical violations (e.g., failing to report, missing appointments, using drugs, absconding—Conditions 4, 6, 8, 11 here).

Under Code § 19.2‑306.1, the legislature has structured sanctions for technical violations differently from new law violations, often with graduated steps. Whether violations are treated singly or as multiple events can affect the applicable sanction range.

In Jackson, a disagreement about whether to consolidate conditions into a single violation or keep them separate affected the context of the sentencing arguments. However, the Supreme Court’s decision ultimately turns on the acceptance‑of‑responsibility issue, not on the technical operation of § 19.2‑306.1.

5. Suspended sentences and probation as an “act of grace”

Virginia (and many other jurisdictions) describe probation and suspended sentences as an “act of grace”:

• The court could have imposed the full sentence upfront.
• Instead, it suspends part of the sentence on condition that the defendant comply with probation terms.
• If the defendant violates those terms, the court may revoke the suspension and require service of some or all of the previously suspended time, subject to statutory limits.

This framing underscores why rehabilitation and compliance, rather than formal constitutional protections, dominate the revocation process. A defendant already adjudicated guilty is being evaluated for continued suitability for conditional liberty.

VIII. Conclusion

Commonwealth v. Jackson refines Virginia’s doctrine at the intersection of probation revocation, sentencing discretion, and constitutional constraints on punishing defendants for exercising their rights.

The key takeaways are:

• A sentencing or revocation court may consider a defendant’s current failure to accept responsibility and lack of remorse as bearing on rehabilitation and appropriate punishment.
• It is error only when that consideration is explicitly tied to the defendant’s past assertion of innocence, not‑guilty plea, or decision to go to hearing or trial.
• Appellate courts must read sentencing remarks in full context, with a presumption of correctness, and should not seize on isolated phrases to infer an unlawful “trial penalty.”
• The case leaves open, but gestures toward, a broader discussion of how far trial‑phase constitutional doctrines (like Lawlor) extend into probation revocation proceedings.

By reversing the Court of Appeals and reinstating Jackson’s sentence, the Supreme Court of Virginia underscores the wide discretion trial judges retain to weigh rehabilitation, responsibility, and public safety in revocation sentencing, while setting a clear and demanding standard for when that discretion crosses the constitutional line into punishment for exercising trial rights.