Lionell Lee Hardy v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 3, 2026
• Docket: 2094242
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Friedman, Raphael and White UNPUBLISHED

Argued at Richmond, Virginia

LIONELL LEE HARDY MEMORANDUM OPINION* BY v. Record No. 2094-24-2 JUDGE KIMBERLEY SLAYTON WHITE FEBRUARY 3, 2026 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Joseph M. Teefey, Jr., Judge

William N. Smith, III (Whaley Paules, LLC, on brief), for appellant.

Ryan Beehler, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.

The Circuit Court of Nottoway County revoked Lionell Lee Hardy’s suspended sentence for

a conviction on which he was originally sentenced in 2010. In December 2024, after finding Hardy

in violation of his probation, the trial court imposed the remaining three years and six months of

Hardy’s suspended sentence. Hardy timely appealed and now challenges the trial court’s subject

matter jurisdiction to revoke his suspended sentence. We affirm.

BACKGROUND

“On appeal, we view the record in the light most favorable to the Commonwealth

because it was the prevailing party below.” Delp v. Commonwealth, 72 Va. App. 227, 230

(2020) (citing Huguely v. Commonwealth, 63 Va. App. 92, 110 (2014)). Hardy was convicted of

unlawful wounding in 2010 and sentenced to 5 years in prison, with 3 years and 6 months

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. suspended for 20 years, resulting in an active sentence of 1 year and 6 months, to run

consecutively with any of Hardy’s other sentences. His suspended sentence was subject to good

behavior and supervised probation compliance until released by the court or his probation

officer.

On January 23, 2024, Hardy’s probation officer filed a major violation report. The report

indicated that Hardy’s supervision began on July 29, 2022,2 and that, on January 4, 2024, Hardy

was convicted in another jurisdiction of unlawfully shooting into an occupied dwelling and

attempting to maliciously shoot into an occupied dwelling. Hardy was served with a “capias to

show cause” for the probation violation on February 1, 2024.

After certain preliminary proceedings, the trial court heard the matter on May 7, 2024,

where Hardy moved the court to dismiss the probation violation based on a lack of subject matter

jurisdiction. Hardy argued that, while the court was permitted to suspend his sentence for more

than the statutory maximum term of imprisonment when he was sentenced in 2010, under the

2021 amendments to the probation revocation statutes, trial courts could only suspend a sentence

for a period of up to the statutory maximum sentence. In Hardy’s view, because his statutory

maximum sentence of five years had run, the court did not have jurisdiction over his probation

violation. The Commonwealth requested a continuance to allow it to respond to Hardy’s

jurisdictional argument, which the court granted.

The trial court held another hearing on the matter on August 12, 2024, where Hardy

reiterated his arguments from the previous hearing. The Commonwealth argued in response that

the 2021 amendments did not apply retroactively and that Hardy was subject to his original

suspended sentence. The court again continued the matter.

2 Hardy was released from DOC on that date. Our record does not specify for what charges he had been serving a sentence. -2- At a third hearing on November 21, 2024, the trial court denied Hardy’s motion to

dismiss. The court admitted Hardy’s major violation report, his plea agreement in Prince

Edward County for shooting at an occupied dwelling and attempted malicious shooting at an

occupied dwelling, and his January 4, 2024 sentencing order for those convictions, all without

objection.3 Hardy did not offer any evidence regarding the violation. The trial court found that

the statute was not retroactive and that the 20-year period of good behavior imposed in 2010

remained in force and had not expired. The trial court then revoked Hardy’s suspended sentence

and reimposed the time remaining, to be served in active incarceration. Hardy timely appealed.

ANALYSIS

On appeal, Hardy brings a single assignment of error: That the “trial court erred in

finding that the trial court had jurisdiction under Code § 19.2-306 to revoke [his] previously

suspended sentence.” He supports this assignment of error with two distinct arguments: First,

that the “trial court never initiated a show cause order in the case[,] rendering the trial court’s

revocation order void ab initio”; and second, that the “2021 amendments to Code § 19.2-303

retroactively prevented the trial court from revoking any of Mr. Hardy’s sentence.” We address

each in turn.

I. PROCEDURAL SUFFICIENCY OF THE SHOW CAUSE CAPIAS

Code § 19.2-306(B) provides that a court “may not conduct a hearing to revoke the

suspension of sentence unless the court issues process to notify the accused or to compel his

appearance before the court.” It further states that “[s]uch notice and service of process may be

waived by the defendant, in which case the court may proceed to determine whether the

defendant has violated the conditions of suspension.” Id.

3 Although the court dated the Prince Edward County sentencing order as entered on January 12, 2023, the order also reflects that Hardy’s sentencing hearing occurred on January 4, 2024. -3- Here, the trial court issued a “capias to show cause” on February 1, 2024, commanding

Hardy’s arrest to show cause why he was not in violation of his probation. The capias was

executed with Hardy’s arrest the same day. But Hardy argues that this capias did not satisfy

Code § 19.2-306(B), which “requires the trial court to issue process or an order to show cause

why his previously suspended sentence should [not] be revoked.” In Hardy’s opinion, a “true

capias” must be “signed by a judge,” while the capias here was signed by a deputy clerk, so that

“[t]he court never issued any process on the record”; he analogizes the process that the trial court

did issue to “a deputy clerk issuing a capias for felony indictment despite there being no record

of any indictment certified as a true bill.” Hardy characterizes the court’s reliance on the show

cause capias as “an unlawful procedure” and a “fundamental infirmity” so affecting its judgment

as to render it void ab initio. Hannah v. Commonwealth, 303 Va. 106, 119-20 (2024).

According to Hardy, “Code § 19.2-306(B) confers jurisdiction on a trial court to revoke a

suspended sentence only after ‘the court issues process to notify the accused or to compel his

appearance before the court’” (Hardy’s emphasis), implying that a capias signed only by a

deputy clerk does not suffice as being issued by “the court.”

Hardy did not raise this issue below, and “[a] basic principle of appellate review is that,

with few exceptions . . . arguments made for the first time on appeal will not be considered.”

Martin v. Ziherl, 269 Va. 35, 39 (2005) (emphasis added). But one of these exceptions is that

“[o]bjections to void ab initio judgments may be raised by any party in the case at any point

during a valid direct or collateral proceeding where the voidness of the order is properly at issue,

[even] . . . for the first time on appeal.” Hannah, 303 Va. at 120. Circumstances where a

judgment may be void ab initio include “any judgment rendered by a court without subject

matter jurisdiction.” Jenkins v. Dir. of the Va. Ctr. for Behav. Rehab., 271 Va. 4, 13 (2006).

-4- Hardy asserts that the revocation of his suspended sentence constitutes such a judgment.

But in reaching this conclusion, he conflates the concepts of “active” and “subject matter”

jurisdiction. “The term jurisdiction embraces several concepts,” one of which is “subject matter

jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of

cases or controversies.” Morrison v. Bestler, 239 Va. 166, 169 (1990). Other jurisdictional

concepts include “territorial jurisdiction, that is, authority over persons, things, or occurrences

located in a defined geographic area; [and] notice jurisdiction, or effective notice to a party or if

the proceeding is in rem seizure of a res.” Id. Finally, there is active jurisdiction, which

encompasses “the other conditions of fact [that] must exist which are demanded by the unwritten

or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.”

Id. (quoting Farant Inv. Corp. v. Francis, 138 Va. 417, 427-28 (1924)). “[A] court must possess

both ‘potential’ and ‘active jurisdiction’ to adjudicate the merits of a case.” Whitt v.

Commonwealth, 61 Va. App. 637, 649 (2013). And, “‘[P]otential jurisdiction’ is . . . ‘jurisdiction

over the subject-matter.’” Id. (alteration in original) (quoting Farant Inv. Corp., 138 Va. at 427).

“[T]here is a significant difference between subject matter jurisdiction and the other

‘jurisdictional’ elements. Subject matter jurisdiction alone cannot be waived or conferred on the

court by agreement of the parties.” Morrison, 239 Va. at 169-70 (citing Lucas v. Biller, 204 Va.

309, 313 (1963)). But the notice required under Virginia statute “may be waived by the

defendant.” Code § 19.2-306(B) (emphasis added). Consequently, to the extent that Code

§ 19.2-306(B) implicates the trial court’s jurisdiction, it affects active jurisdiction, not subject

matter jurisdiction. “Defects in active jurisdiction can be waived, and even if not waived, such

defects are not subject to collateral attack.” Cilwa v. Commonwealth, 298 Va. 259, 270-71

(2019) (first citing Jones v. Commonwealth, 293 Va. 29, 47-48 (2017); and then citing Hicks ex

rel. Hicks v. Mellis, 275 Va. 213, 219 (2008)). Hardy treated the capias to show cause as a valid

-5- and effective notice throughout the proceedings below, thus waiving any objections by his

conduct. Cf. McCulley v. Brooks & Co. Gen. Contractors, Inc., 295 Va. 583, 589-90 (2018)

(“We have held many times that a party making a general appearance prior to the entry of a final

judgment waives any objection to the service of process by voluntarily submitting to the court’s

jurisdiction over him.” (emphasis omitted)); New River Min. Co. v. Painter, 100 Va. 507, 509

(1902) (“It is a well-established rule of practice that by appearing to the action the defendant

waives all defects in the process and in the service thereof.”). “[A] claim that a court lacks active

jurisdiction cannot be raised for the first time on appeal and is subject to the contemporaneous

objection rule.” Riddick v. Commonwealth, 72 Va. App. 132, 143 (2020) (citing Rule 5A:18).

And even if Hardy had preserved the issue, it would still fail on review.4 Code

§ 19.2-306(B) requires a court to issue process notifying the accused or compelling his

appearance before the court. Hardy “does not contend that he did not get any notice of the

proceedings, only that the notice he received was inadequate. However, the plain language of

the statute . . . requires notice of the physical place and time of the hearing,” which he received.

4 Because Hardy did not raise the alleged defect in the show cause capias at the revocation hearing in the trial court, he has waived this claim for purposes of appeal, see Rule 5A:18, and he has not invoked any of the applicable exceptions to such waiver, see Spanos v. Taylor, 76 Va. App. 810, 827-28 (2023). However, we address the merits of his claim because he presses this supposed defect as a basis for finding the revocation order void ab initio and rendering the trial court without subject matter jurisdiction. See Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 (1998) (“[I]it is essential to the validity of a judgment or decree, that the court rendering it shall have jurisdiction of both the subject matter and parties” and that the judgment or order was not arrived at by a “mode of procedure employed by the court was such as it might not lawfully adopt.” (quoting Anthony v. Kasey, 83 Va. 338, 340 (1887))); J. P. v. Carter, 24 Va. App. 707, 724 (1997) (“[T]he lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the first time on appeal.” (quoting Morrison, 239 Va. at 169-70)). -6- Curry v. Commonwealth, No. 0180-15-1, slip op. at 4, 2015 Va. App. LEXIS 389, at *6 (Dec.

22, 2015) (emphasis omitted).5 Nothing in the statute prescribes that such notice be signed by a

judge rather than some other court officer. In a revocation hearing, “[t]he important thing is not

the form, but the fact, of notice.” Price v. Commonwealth, 51 Va. App. 443, 447 (2008) (citing

Copeland v. Commonwealth, 14 Va. App. 754, 756 (1992)).

Hardy received adequate notice of the revocation hearing. Thus, even assuming simply

for the sake of argument that the notice provision of Code § 19.2-306(B) implicated a trial

court’s subject matter jurisdiction over revocation hearings, Hardy’s claim would fail.

II. RETROACTIVITY OF THE AMENDMENTS TO CODE § 19.2-303

At the time Hardy was sentenced in 2010, Code § 19.2-303 empowered the trial court to

“suspend imposition of sentence . . . [and] place the defendant on probation under such

conditions as the court shall determine.” Code § 19.2-303 (2019). The trial court sentenced

Hardy to 5 years in prison, but under the authority of the statute as then formulated, suspended 3

years and 6 months of the sentence for a period of 20 years subject to “[g]ood behavior” and

supervised probation compliance until released by the court or his probation officer. See Barrow

v. Commonwealth, 81 Va. App. 535, 547 (2024). In 2021, the General Assembly amended and

reenacted Code § 19.2-303 by, among other things, limiting the period of probation a court may

impose to “up to the statutory maximum period for which the defendant might originally have

been sentenced to be imprisoned.” See id.; Johnson-Bey v. Commonwealth, 303 Va. 386, 392

(2024). Hardy asserts that the General Assembly’s “2021 amendments to Code § 19.2-303

retroactively prevented the trial court from revoking any of [his] sentence.”

5 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 572 n.7 (2018) (quoting Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012)); see also Rule 5A:1(f). -7- “[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence,

and embodies a legal doctrine centuries older than our Republic.” Johnson-Bey, 303 Va. at 392

(alteration in original) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)). “It has

long been the law of the Commonwealth that retroactive application of statutes is disfavored and

that ‘statutes are to be construed to operate prospectively only unless a contrary intention is

manifest and plain.’” Id. at 392-93 (quoting City of Charlottesville v. Payne, 299 Va. 515, 528

(2021)). Further, “[t]he presumption against retroactivity has heightened weight when a statute

is not merely amended—but amended and reenacted,” as was Code § 19.2-303. Id. at 393.

“‘Reenacted,’ when used in the title or enactment of a bill or act of the General Assembly, means

that the changes enacted . . . are effective prospectively unless the bill expressly provides that

such changes are effective retroactively on a specified date.” Id. (emphasis omitted) (quoting

Code § 1-238).

“No explicit or unequivocal language in the 2021 amendments states that they

retroactively modify or annul provisions in prior criminal sentencing orders.” Id. (citing

Hannah, 303 Va. at 122-24, 124 n.7). “This conclusion leaves undisturbed the traditional view

that ‘[f]or criminal sentencing, courts should apply the penalty in existence at the time of the

commission of the underlying offense.’” Id. (alteration in original) (quoting Hannah, 303 Va. at

122). Hardy’s 2010 conviction “involve[d] criminal offenses . . . committed prior to the

effective date of the 2021 amendments” to Code §§ 19.2-303, -303.1, and -306. Id. at 393-94;

see also Barrow, 81 Va. App. at 547. “These statutory amendments did not limit the [trial]

court’s sentencing options at [Hardy’s] revocation hearing because they did not retroactively

apply to the underlying crime.” Id. at 394. Hardy concedes that, “[l]ooking at the plain language

of Code § 19.2-303, there is no express provision requiring retroactive application.” Both our

own precedents and those of the Supreme Court make clear that the 2021 amendments to Code

-8- § 19.2-303 are not retroactive in their application, and did not deprive the trial court of

jurisdiction to revoke Hardy’s suspended sentence.

CONCLUSION

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

Affirmed.

-9-