COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys, Causey and Senior Judge Clements
RODNEY BRYON ROCK MEMORANDUM OPINION* v. Record No. 1119-21-2 PER CURIAM OCTOBER 4, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY W. Allan Sharrett, Judge
(Dale Jensen; Dale Jensen, PLC, on brief), for appellant.
(Jason S. Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney General, on brief), for appellee.
In 2015, the trial court convicted appellant of two counts of carnal knowledge of a child
between thirteen and fifteen years of age and forcible sodomy and sentenced him to a total of forty
years of incarceration with thirty years suspended. On appeal, he contends that the trial court erred
in denying his 2020 motion to vacate his convictions. For the following reasons, we affirm the trial
court’s judgment.1
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). In doing so, we discard any of appellant’s conflicting evidence and regard as true all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 After examining the briefs and record in this case, the panel unanimously agrees that because “the appeal is wholly without merit,” oral argument is unnecessary. Therefore, we dispense with oral argument in accordance with Code § 17.1-403(ii)(a) and Rule 5A:27(a). credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn
from that evidence. Gerald, 295 Va. at 473.
After the trial court entered its final order sentencing appellant on the above offenses of
which he was convicted, he timely petitioned this Court for an appeal, asserting that the evidence
was insufficient to sustain his convictions because the victim’s testimony was inherently incredible
and the trial court erred in admitting evidence of his criminal conduct before the time frame alleged
in the indictments.2 This Court denied appellant’s petition for appeal, finding that the victim’s
testimony was not inherently incredible and the evidence of his conduct predating the indicted time
period was properly admitted. The Supreme Court of Virginia refused appellant’s petition for
appeal by order entered December 15, 2016. In June 2019, appellant filed a pro se motion for a
sentence reduction, which the trial court denied.
On September 22, 2020, five years after his convictions, appellant filed a motion to vacate
his convictions, arguing that they were void ab initio because the trial court “never established”
jurisdiction. Specifically, appellant alleged that he was never properly indicted by a grand jury by
entry of an order proving that the indictments were presented in open court. Appellant argued that
the failure to comply with the proper grand jury indictment requirements was a fatal defect that
rendered his convictions void ab initio. Appellant also argued that his sentence violated the cruel
and unusual punishment clause of the Eighth Amendment because of prosecutorial misconduct and
“obvious perjured testimony.” On September 20, 2021, the trial court denied appellant’s motion.
This appeal follows.
2 At the time of appellant’s convictions, convicted defendants did not have an appeal as of right and had to petition this Court for an appeal. 2021 Va. Acts Sp. Sess. I, c. 489. -2- ANALYSIS
Appellant argues that the trial court erred in denying his motion to vacate because the trial
court lacked subject-matter jurisdiction and sentenced him for crimes he did not commit. He alleges
that there is no “judge-signed order” indicting him and the trial court ignored the mandated grand
jury indictment process and tried him without proper indictments. Appellant also argues that the
Commonwealth committed prosecutorial misconduct by suborning testimony that was known to be
false. Appellant maintains that the victim’s trial testimony was contrived, biased, and “obvious
perjury.”
Rule 1:1(a) provides that “[a]ll final judgments, orders, and decrees, irrespective of terms of
court, remain under the control of the trial court and may be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer.” “The running of the twenty-one-day period
commences with the entry of the final order and ‘may be interrupted only by the entry, within the
21-day period after final judgment, of an order suspending or vacating the final order.’” Minor v.
Commonwealth, 66 Va. App. 728, 739 (2016) (quoting James v. James, 263 Va. 474, 482 (2002)).
“Unless a court vacates or suspends a final order during the twenty-one-day period or some other
exception to the general rule applies, the court loses jurisdiction over the case and any action taken
by the trial court after the twenty-one-day period has run is a nullity.” Id. (citing James, 263 Va. at
483).
Nevertheless, “[a] court order may . . . be attacked after twenty-one days when it is void ab
initio.” Yourko v. Yourko, 74 Va. App. 80, 92 (2021). A “judgment may be void ab initio if (1) it
was procured by fraud, (2) the court lacked subject-matter jurisdiction, (3) the court lacked
jurisdiction over the parties, (4) the judgment is of a character that the court lacked power to render,
or (5) the court adopted an unlawful procedure.” Watson v. Commonwealth, 297 Va. 347, 350
(2019) (citing Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 (1998)). Indeed,
-3- subject-matter jurisdiction cannot be waived, and issues of subject-matter jurisdiction can be raised
for the first time on appeal or in a collateral proceeding. Id. “[A] challenge that an order is void ab
initio, even for lack of subject-matter jurisdiction, may be raised only in a valid direct or collateral
proceeding where the voidness of the order is properly at issue.” Bonanno v. Quinn, 299 Va. 722,
736-37 (2021) (citing Wade v. Hancock, 76 Va. 620 (1882)). “One consequence of the
non-waivable nature of the requirement of subject matter jurisdiction is that attempts are sometimes
made to mischaracterize other serious procedural errors as defects in subject matter jurisdiction to
gain an opportunity for review of matters not otherwise preserved.” Morrison v. Bestler, 239 Va.
166, 170 (1990).
Here, appellant contends that the trial court lacked subject-matter jurisdiction to convict him
because the record lacks an indictment order. That argument, however, fails to properly call the
trial court’s subject-matter jurisdiction into question or otherwise present a basis for declaring that
his conviction order is void ab initio. “[T]here is no constitutional requirement that prosecutions for
felony be by indictment.” Epps v. Commonwealth, 66 Va. App. 393, 399 (2016) (quoting
Livingston v. Commonwealth, 184 Va. 830, 836 (1946)). Instead, “[t]he requirement is merely
statutory [and] may be waived.” Id.; see Code § 19.2-217 (“[N]o person shall be put upon trial for
any felony, unless an indictment or presentment shall have first been found or made by a grand jury
in a court of competent jurisdiction.”). “[B]ecause an indictment may be waived, it is not
jurisdictional.” Epps, 66 Va. App. at 400 (citing Hanson v. Smyth, 183 Va. 384, 390-91 (1944)).
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys, Causey and Senior Judge Clements
RODNEY BRYON ROCK MEMORANDUM OPINION* v. Record No. 1119-21-2 PER CURIAM OCTOBER 4, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY W. Allan Sharrett, Judge
(Dale Jensen; Dale Jensen, PLC, on brief), for appellant.
(Jason S. Miyares, Attorney General; Lauren C. Campbell, Assistant Attorney General, on brief), for appellee.
In 2015, the trial court convicted appellant of two counts of carnal knowledge of a child
between thirteen and fifteen years of age and forcible sodomy and sentenced him to a total of forty
years of incarceration with thirty years suspended. On appeal, he contends that the trial court erred
in denying his 2020 motion to vacate his convictions. For the following reasons, we affirm the trial
court’s judgment.1
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). In doing so, we discard any of appellant’s conflicting evidence and regard as true all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 After examining the briefs and record in this case, the panel unanimously agrees that because “the appeal is wholly without merit,” oral argument is unnecessary. Therefore, we dispense with oral argument in accordance with Code § 17.1-403(ii)(a) and Rule 5A:27(a). credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn
from that evidence. Gerald, 295 Va. at 473.
After the trial court entered its final order sentencing appellant on the above offenses of
which he was convicted, he timely petitioned this Court for an appeal, asserting that the evidence
was insufficient to sustain his convictions because the victim’s testimony was inherently incredible
and the trial court erred in admitting evidence of his criminal conduct before the time frame alleged
in the indictments.2 This Court denied appellant’s petition for appeal, finding that the victim’s
testimony was not inherently incredible and the evidence of his conduct predating the indicted time
period was properly admitted. The Supreme Court of Virginia refused appellant’s petition for
appeal by order entered December 15, 2016. In June 2019, appellant filed a pro se motion for a
sentence reduction, which the trial court denied.
On September 22, 2020, five years after his convictions, appellant filed a motion to vacate
his convictions, arguing that they were void ab initio because the trial court “never established”
jurisdiction. Specifically, appellant alleged that he was never properly indicted by a grand jury by
entry of an order proving that the indictments were presented in open court. Appellant argued that
the failure to comply with the proper grand jury indictment requirements was a fatal defect that
rendered his convictions void ab initio. Appellant also argued that his sentence violated the cruel
and unusual punishment clause of the Eighth Amendment because of prosecutorial misconduct and
“obvious perjured testimony.” On September 20, 2021, the trial court denied appellant’s motion.
This appeal follows.
2 At the time of appellant’s convictions, convicted defendants did not have an appeal as of right and had to petition this Court for an appeal. 2021 Va. Acts Sp. Sess. I, c. 489. -2- ANALYSIS
Appellant argues that the trial court erred in denying his motion to vacate because the trial
court lacked subject-matter jurisdiction and sentenced him for crimes he did not commit. He alleges
that there is no “judge-signed order” indicting him and the trial court ignored the mandated grand
jury indictment process and tried him without proper indictments. Appellant also argues that the
Commonwealth committed prosecutorial misconduct by suborning testimony that was known to be
false. Appellant maintains that the victim’s trial testimony was contrived, biased, and “obvious
perjury.”
Rule 1:1(a) provides that “[a]ll final judgments, orders, and decrees, irrespective of terms of
court, remain under the control of the trial court and may be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer.” “The running of the twenty-one-day period
commences with the entry of the final order and ‘may be interrupted only by the entry, within the
21-day period after final judgment, of an order suspending or vacating the final order.’” Minor v.
Commonwealth, 66 Va. App. 728, 739 (2016) (quoting James v. James, 263 Va. 474, 482 (2002)).
“Unless a court vacates or suspends a final order during the twenty-one-day period or some other
exception to the general rule applies, the court loses jurisdiction over the case and any action taken
by the trial court after the twenty-one-day period has run is a nullity.” Id. (citing James, 263 Va. at
483).
Nevertheless, “[a] court order may . . . be attacked after twenty-one days when it is void ab
initio.” Yourko v. Yourko, 74 Va. App. 80, 92 (2021). A “judgment may be void ab initio if (1) it
was procured by fraud, (2) the court lacked subject-matter jurisdiction, (3) the court lacked
jurisdiction over the parties, (4) the judgment is of a character that the court lacked power to render,
or (5) the court adopted an unlawful procedure.” Watson v. Commonwealth, 297 Va. 347, 350
(2019) (citing Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73 (1998)). Indeed,
-3- subject-matter jurisdiction cannot be waived, and issues of subject-matter jurisdiction can be raised
for the first time on appeal or in a collateral proceeding. Id. “[A] challenge that an order is void ab
initio, even for lack of subject-matter jurisdiction, may be raised only in a valid direct or collateral
proceeding where the voidness of the order is properly at issue.” Bonanno v. Quinn, 299 Va. 722,
736-37 (2021) (citing Wade v. Hancock, 76 Va. 620 (1882)). “One consequence of the
non-waivable nature of the requirement of subject matter jurisdiction is that attempts are sometimes
made to mischaracterize other serious procedural errors as defects in subject matter jurisdiction to
gain an opportunity for review of matters not otherwise preserved.” Morrison v. Bestler, 239 Va.
166, 170 (1990).
Here, appellant contends that the trial court lacked subject-matter jurisdiction to convict him
because the record lacks an indictment order. That argument, however, fails to properly call the
trial court’s subject-matter jurisdiction into question or otherwise present a basis for declaring that
his conviction order is void ab initio. “[T]here is no constitutional requirement that prosecutions for
felony be by indictment.” Epps v. Commonwealth, 66 Va. App. 393, 399 (2016) (quoting
Livingston v. Commonwealth, 184 Va. 830, 836 (1946)). Instead, “[t]he requirement is merely
statutory [and] may be waived.” Id.; see Code § 19.2-217 (“[N]o person shall be put upon trial for
any felony, unless an indictment or presentment shall have first been found or made by a grand jury
in a court of competent jurisdiction.”). “[B]ecause an indictment may be waived, it is not
jurisdictional.” Epps, 66 Va. App. at 400 (citing Hanson v. Smyth, 183 Va. 384, 390-91 (1944)).
Thus, any challenge to the form of an indictment is waived unless raised at least seven days
before trial. Rule 3A:9(b)(1); Howard v. Commonwealth, 63 Va. App. 580 (2014) (objections to
indictment properly raised at trial level and thereafter upheld on appeal). As appellant’s
indictment argument fails to allege grounds that would render the 2015 final sentencing order
-4- void ab initio, Rule 1:1 barred the trial court from amending, on appellant’s motion to vacate, the
order convicting appellant of the alleged offenses.
Next, appellant argues that his disproportionate sentence on the underlying offenses
violated his right to be free from cruel and unusual punishment. Although appellant couches his
argument as a constitutional challenge, he specifically argues that his sentence was
disproportionate because of “prosecutorial misconduct” and “obvious perjury [by] the
Commonwealth’s sole substantive witness.” Then, he presents the same witness credibility
arguments that he asserted on direct appeal—which this Court and the Supreme Court rejected—
to argue that his right “to be free from cruel and unusual punishments” was violated.
It is well-established that “Virginia law does not permit a motion to vacate that is filed in
a trial court long after the court lost active jurisdiction over the criminal case to serve as an
all-purpose pleading for collateral review of criminal convictions.” Jones v. Commonwealth,
293 Va. 29, 53 (2017). “Just as habeas corpus cannot be used as a substitute for direct appeal, a
motion to vacate cannot be used as a substitute for a habeas corpus petition.” Id. (citation
omitted). “Except for the narrow band of situations in which we have recognized the efficacy of
motions to vacate to remedy orders that are void ab initio, constitutional challenges like the one
[appellant] asserts must be properly presented in a timely petition for habeas corpus.” Id. To be
sure, “we have never held, nor are we aware of any court that has held, that a motion to vacate
(rather than a petition for habeas corpus) is a proper vehicle under Virginia law to challenge a
conviction or sentence based solely on a federal constitutional challenge.” Id.
Finally, to the extent that appellant’s allegations constitute arguments of fraud, those
allegations, too, are not proper in a motion to vacate. “‘[E]xtrinsic fraud’ consists of ‘conduct
which prevents a fair submission of the controversy to the court’ and, therefore, renders the
results of the proceedings null and void.” Peet v. Peet, 16 Va. App. 323, 327 (1993) (quoting
-5- Jones v. Willard, 224 Va. 602, 607 (1983)). Conversely, “‘intrinsic fraud’ includes perjury, . . .
or other means of obscuring facts presented before the court and whose truth or falsity as to the
issues being litigated are passed upon by the trier of fact.” Id. (quoting Jones, 224 Va. at 607).
“When a party discovers that a judgment has been obtained by intrinsic fraud, the party must act
by direct attack or appeal to rectify the alleged wrong and cannot wait to assail the judgment
collaterally whenever it is enforced.” Id. (citing Jones, 224 Va. at 607). Appellant’s allegations
of prosecutorial misconduct and perjured testimony demonstrate, at most, intrinsic fraud as they
are “means of obscuring facts presented before the court,” and are thus not properly collaterally
attacked in a motion to vacate. Id. (quoting Jones, 224 Va. at 607). Accordingly, the trial court
did not err by denying appellant’s motion to vacate his convictions.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
-6-