Darell Remon Cook v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 16, 2025
• Docket: 1071242
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges AtLee, Athey and Callins Argued by videoconference

DARELL REMON COOK MEMORANDUM OPINION* BY v. Record No. 1071-24-2 JUDGE DOMINIQUE A. CALLINS SEPTEMBER 16, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Tracy Thorne-Begland, Judge

Brett Blobaum, Senior Appellate Attorney (Jamie Almallen; Tracy E. Paner, Chief Public Defender; Richmond Public Defender’s Office, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

In a 2024 order, the circuit court found Darell Remon Cook in violation of the terms and

conditions of his probation, revoked his suspended sentence, ordered him to serve an active term of

incarceration of one year and six months, and resuspended the remainder of his sentence. On

appeal, Cook argues that the circuit court’s 2022 revocation order was void ab initio because the

court violated the plain language of Code § 19.2-303 by imposing a period of supervised probation

which exceeded five years “from the date of sentencing on [his] original charge.” Because the 2022

order is not void ab initio, and because Cook did not preserve for appeal his challenge to this order,

we affirm the circuit court’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

In October 2015, Cook pleaded guilty to distribution of heroin in violation of Code

§ 18.2-248. Following his conviction, the circuit court sentenced Cook to ten years of

incarceration, with all time suspended, and placed Cook on supervised probation. In October

2019, the circuit court found Cook violated the terms of his probation, revoked his suspended

time, imposed an active term of three months, resuspended the remainder of his sentence for a

period of ten years, and reinstated his supervised probation. In December 2019, Cook began his

supervised probation period.

In March 2022, the circuit court found Cook violated his probation, imposed an active

sentence of 14 days, resuspended the remainder of his sentence for a period of 10 years, and

reinstated his supervised probation. Following this term of incarceration, Cook began his

supervised probation period in March 2022. A few months later, Cook’s probation officer issued

a major violation report, Cook’s third since 2015, after he absconded from supervision. Cook

was not arrested until March 2024.2 In an addendum to the MVR, Cook’s probation officer

noted that Cook was unsuitable for supervised probation.

In June 2024, Cook moved to dismiss his most recent probation violation because he

argued the plain language of Code § 19.2-303 limits a criminal defendant’s period of supervised

probation to five years following “the release of any [period of] incarceration ordered by the

court.” Cook contended that because his supervised probation began in October 2015, the

1 “In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.’” Cisneros v. Commonwealth, 82 Va. App. 147, 154 n.2 (2024) (quoting Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)). “The evidence is considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id. (quoting Jacobs, 61 Va. App. at 535). 2 According to the record, Cook “absconded from supervision effective May 2022. Cook remained free and non-compliant in the community until his arrest on March 7, 2024.” -2- supervised probation period expired in October 2020. Cook asserted that, therefore, the circuit

court’s 2022 revocation order was void ab initio because it imposed an additional period of

supervised probation after 2020. Accordingly, Cook argued since the March 2022 order was

void ab initio, it had no legal effect, and he could not be convicted of violating its terms in 2024.

In response to Cook’s motion, the Commonwealth argued that Cook was most recently

released to supervised probation in March 2022, and that the five-year limit to supervised

probation began at that time. The Commonwealth contended that Cook’s interpretation of Code

§ 19.2-303 did not comport with the plain language of the statute, because “any active period of

incarceration” means that the five-year limit begins from any period of incarceration following

“an original conviction, a revocation, . . . [or] from charges in other jurisdictions.”

At a revocation hearing in June 2024, the parties presented these arguments to the circuit

court. Cook contended that the purpose of the amended statute “was to allow people to move on

with their lives if they are being law biding [sic] citizens” and that the five-year period of Code

§ 19.2-303 would always begin on the date of the criminal defendant’s original conviction. The

Commonwealth asserted that Cook’s interpretation violates the absurdity doctrine, because

courts would be unable to “return [criminal defendants] to supervised probation” after

absconding and violating terms of their probation.

The circuit court denied Cook’s motion to dismiss, finding that Cook’s probation had

been “interrupted and restarted and extended.” Following the plain language of the statute, the

circuit court found that the “any active period of incarceration” language is “very clear” and

provides that release “from any active period of incarceration” starts anew the five-year

limitation on supervised probation. The circuit court subsequently found Cook in violation of his

supervised probation, imposed an active period of incarceration of one year and six months,

-3- resuspended the remainder of his sentence for a period of ten years, and removed Cook from

supervised probation. Cook appeals.

ANALYSIS

Cook argues that Code § 19.2-303 limits a criminal defendant’s period of supervised

probation to five years following the date of sentencing on the original charge. Cook also

contends that the circuit court’s March 2022 revocation order is void ab initio as “the character

of the order is such that the court had no power to render it.” Singh v. Mooney, 261 Va. 48,

51-52 (2001). Accordingly, Cook asserts that he did not violate his probation terms in 2024

because his supervised probation period expired in 2020—five years after his original 2015

charge. The Commonwealth argues that the circuit court’s 2022 revocation order is “at best . . .

voidable, not void” and therefore not subject to Cook’s collateral attack on appeal.3 We agree

with the Commonwealth.

“A judgment which is void ab initio is a judgment so affected by a fundamental infirmity

that it is no judgment at all.” Cisneros v. Commonwealth, 82 Va. App. 147, 164 (2024) (quoting

Hannah v. Commonwealth, 303 Va. 106, 119 (2024)). One circumstance which gives rise to a

void ab initio judgment is when “the judgment is of a character that the court lacked power to

render [it].” Hannah, 303 Va. at 120 (quoting Watson v. Commonwealth, 297 Va. 347, 350

(2019)); see also Singh, 261 Va. at 51-52 (standing for the same proposition). “A judgment that

is void ab initio, often simply referred to as void, can be challenged for the first time on appeal

because it is a judicial nullity.” Terry v. Commonwealth, 81 Va. App. 241, 250 (2024). Thus,

3 At oral argument, the Commonwealth contended that a recent decision from this Court addressed Cook’s argument. Story v. Commonwealth, No. 1794-23-4 (Va. Ct. App. Apr. 8, 2025). We agree. In Story, this Court considered a nearly identical argument, and we determined that a circuit court’s misapplication of Code § 19.2-303 rendered the court’s order voidable—not void. Id., slip. op. at 9. Because Story failed to preserve his argument for appeal under Rule 5A:18, this Court affirmed the circuit court’s judgment. Id. at 9-10. -4- the question of whether Cook’s 2022 probation revocation order was void is properly before this

Court. See Hannah, 303 Va. at 120. But our Supreme Court has recognized that “very few

judgments are totally void and subject to attack at any time.” Jones v. Commonwealth, 293 Va.

29, 47 (2017) (quoting John L. Costello, Virginia Criminal Law and Procedure § 62.12 (4th ed.

2008)).

“Unlike void orders, voidable orders ‘are actions taken by a court in error but within the

bounds of its authority[] . . . [and] usually involve a court’s failure to comply with precedent or

an applicable statute.’” Cisneros, 82 Va. App. at 164 (alterations in original) (quoting Hannah,

303 Va. at 120). “Voidable judgments are more common.” Hannah, 303 Va. at 120.

“[O]bjections to voidable errors must be preserved and brought before courts of appeal pursuant

to our procedural [r]ules.” Terry, 81 Va. App. at 250 (second alteration in original) (quoting

Hannah, 303 Va. at 120).

“‘[W]hether an alleged error by the trial court renders its order void ab initio or merely

voidable turns on the subtle, but crucial, distinction deeply embedded in Virginia law’ between

two very different but semantically similar concepts: subject matter jurisdiction and, for lack of a

better expression, active jurisdiction.” Cilwa v. Commonwealth, 298 Va. 259, 266 (2019)

(quoting Jones, 293 Va. at 46). Subject matter jurisdiction concerns “the judicial ‘power to

adjudicate a case.’” Id. (quoting Pure Presbyterian Church of Wash. v. Grace of God

Presbyterian Church, 296 Va. 42, 49 (2018)). “In contrast to subject-matter jurisdiction, ‘active

jurisdiction’—pragmatically called the ‘jurisdiction to err’—involves not the power of the court

but the proper exercise of its authority consistent with ‘settled principles of unwritten law’ or any

applicable ‘mandate of the statute law.’” Id. (quoting Farant Inv. Corp. v. Francis, 138 Va. 417,

427 (1924)). “Simply stated, active jurisdiction requires a court with subject matter jurisdiction

to adjudicate a case consistent with the law governing that adjudication.” Id. at 266-67.

-5- Cook acknowledges that he did not preserve his challenge to the circuit court’s 2022

revocation order but asserts that the order is void ab initio because the circuit court imposed a

period of supervised probation extending beyond that permitted under Code § 19.2-303. Yet our

Supreme Court has previously declared that “any error arising from a misapplication of Code

§ 19.2-303.1 would render a judgment voidable at most.” Hannah, 303 Va. at 124. Indeed, a

circuit court’s misapplication of a statute “does not render a judgment void ab initio.” Terry, 81

Va. App. at 253 (holding that a revocation order was not void ab initio when the circuit court

misunderstood and misapplied Code § 19.2-306.1); see also Cisneros, 82 Va. App. at 169

(“[F]ailure to comply with the statutory parameters for reimposing and/or resuspending the

original sentence is voidable error that must be preserved in accordance with Rule 5A:18.”).

Here, even if it misapplied Code § 19.2-303, the circuit court’s order at most was voidable, and

“therefore the procedural rules for preservation of errors apply.” Terry, 81 Va. App. at 245; see

also Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless

an objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.”).

Accordingly, Cook may not collaterally attack the circuit court’s 2022 probation

revocation order. See Saunders v. Commonwealth, 62 Va. App. 793, 802 (2014) (“Generally, a

judgment in a criminal case may not be attacked collaterally.” (quoting Eagle, Star & Brit.

Dominions Inc. Co. v. Heller, 149 Va. 82, 100 (1927))). Because the 2022 order is at most

voidable, and because Cook did not preserve for appeal his challenges to this order, we do not

reach the merits of Cook’s challenges to the interpretation of Code § 19.2-303.

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s judgment.

Affirmed.

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