Virginia: In the Circuit Court for the city of Waynesboro

Commonwealth

v. Case # CR20000077-00

Julian Keith Tracey-Rucker

MOTION TO VACATE

I the defendant, Julian Keith Tracey-Rucker herby move this Honorable court to vacate the charge of §
18.2-248. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give,
or distribute a controlled substance or an imitation controlled substance prohibited; penalties. On the
grounds that, a new rule for the conduct of criminal prosecutions regarding hash oil was in effect at the
time of sentencing. The definition of hash oil was removed from the list of scheduled substances, and
the definition of marijuana (§ 18.2-247 subsection D.) was amended to include “or any extract
containing one or more cannabinoids”. A procedural bar of arrest and prosecution of hash oil under the
criminal statutes § 18.2-248 and § 18.2-250, pursuant to the enactment of Chapters 1285 & 1286 of the
2020 acts of the General Assembly, prior to my sentencing proceeding. Thereby violating my
constitutional rights, sentencing me to a term of imprisonment of 30 months, 7 months higher than the
guidelines that recommend alternative punishment for violation of an invalid statute in which the
Honorable trial court held no jurisdiction rendering the judgment void ab initio. By Virginia law any
judgment or order that is entered void ab initio is not subject to the 21 day jurisdictional rule 1:1(a).

Supporting Facts

1. The Sentencing guideline procedure was not properly adhered to, as the sentencing guidelines cover
sheet was altered by someone other than Melody Harris, subsequent to her submission to the
Waynesboro Circuit Court misidentifying the scheduled substance as stated on attached email record.
(See exhibits A and B1-B6). A clear violation of § 19.2-299 as the Probation Officer is the sole officer of
the court responsible for preparation of the PSI. This alteration may have significantly impeded the
ability for the courts to recognize the invalidity of the statute I was being sentenced under pursuant to
subsection A. of § 19.2-298.01. This alteration also impedes the ability of the Virginia Criminal
Sentencing Commission to effectively review the sentencing proceeding as it occurred, pursuant to
subsection E., as THC is not the scheduled substance for which I entered my guilty plea, was being
sentenced for, and is not a scheduled substance in this instance entirely.

§ 19.2-298.01. Use of discretionary sentencing guidelines.

A. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the
appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the
suitability of the applicable discretionary sentencing guidelines established pursuant to
 Chapter 8 (§ 17.1-800 et seq.) of Title 17.1. Before imposing sentence, the court shall state
for the record that such review and consideration have been accomplished and shall make
the completed worksheets a part of the record of the case and open for inspection. In cases
tried by a jury, the jury shall not be presented any information regarding sentencing
guidelines.

E. Following the entry of a final order of conviction and sentence in a felony case, the clerk of
circuit court in which the case was tried shall cause a copy of such order or orders, the
original of the discretionary sentencing guidelines worksheets prepared in the case, and a
copy of any departure explanation prepared pursuant to subsection B to be forwarded to the
Virginia Criminal Sentencing Commission within five days. Similarly, the statement required
by § 19.2-295 and 19.2-303 and regarding departure from or modification of a sentence fixed
by a jury shall be forwarded to the Virginia Criminal Sentencing Commission.

§ 54.1-3446. Schedule I.

-Tetrahydrocannabinols, except as present in (i) industrial hemp, as defined in § 3.2-

4112, that is possessed by a person registered pursuant to subsection A of § 3.2-4115 or
his agent; (ii) a hemp product, as defined in § 3.2-4112, containing a
tetrahydrocannabinol concentration of no greater than 0.3 percent that is derived from
industrial hemp, as defined in § 3.2-4112, that is grown, dealt, or processed in
compliance with state or federal law; (iii) marijuana; or (iv) dronabinol in sesame oil and
encapsulated in a soft gelatin capsule in a drug product approved by the U.S. Food and
Drug Administration;

2. The Sentencing Guidelines cover sheet states “Complete this form ONLY for applicable felonies being
sentenced on or after July 1, 2020”. The standard effect date for all new Virginia legislation. “

– Melody Harris left the scheduled substance field of the sentencing guidelines cover sheet
blank.

3. The Virginia Department of Criminal Justice Services released an official document attempting to
identify the legislation from the 2020 General Assembly session that has the greatest impact on law
enforcement and public safety. Regarding the amendments to § 54.1-3401 and § 18.2-247, it states the
following on page #75 (see exhibit C)

• Definition of marijuana amended (§ 18.2-247 & § 54.1-3401)

– The definition and separate crime for possessing hashish oil is eliminated.
 – Any oily extract containing 12% or higher THC is now marijuana.

Full Document is listed at https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/law-

enforcement/2020legislativeupdateforleos.pdf

4. No amendments were made to the criminal statue § 18.2-248 Manufacturing, selling, giving,
distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or
an imitation controlled substance prohibited; penalties. Since the 2014 Virginia Acts of Assembly
Chapter 513

5. Ruplenas, Hairston, and Trunfio did not challenge the jurisdiction of the trial Court they argued their
right to mitigation of punishment.

- § 18.2-248 was amended in this instance.

- In Ruplenas, the Court specifically rejected an interpretation of the statute that would have
given "the defendant an exclusive right to choose the statute under which he will be
sentenced."

- The sentencing guidelines procedure was not in effect at the time that judgment was
rendered. (§ 19.2-298.01)

- A plea of nolle prosequi to possession with intent to distribute was accepted by the Court on
both counts.

6. The Commonwealth argued the following statement which does not align with the circumstances at
the time of my sentencing.

“About the only thing I would say that has changed of any real significance is the fact that the
distribution of not more than one-half ounce has been reduced down to a Class One misdemeanor
whereas under the old law unless it was an accommodation distribution it still fell under the five to
forty, plus $25,000 fine provisions so I would say there has been really very little change except insofar
as the small minute quantities of marijuana have been changed. Some change has been made in the
intermediate quantity. So far as any philosophical - marijuana is still illegal. It's still illegal, only reason
for any kind of legislative classification is purely for the purposes of setting forth the crime and setting
forth the punishment and whether you call it marijuana, and make it illegal under its name or call it a
Schedule I controlled substance and make it illegal and provide penalties for distribution under that
provision of the law, I don't see where it makes any real difference. The point is marijuana is still illegal
and distribution of it is· still illegal and has been and as far as I know there’s no indication that it won't
continue to be for a long time in the future.”

(See exhibit D page 26 and 27 of 221 Va. 972 (Va. 1981) 275 S.E.2d 628 joint appendix record 800910)

- Marijuana had been decriminalized at the time of my sentencing.

- There is clear indication that marijuana could possibly be legalized according to Section 2 of
chapter 1286 listed below.
 - That the Secretaries of Agriculture and Forestry, Finance, Health and Human Resources, and
Public Safety and Homeland Security shall convene a work group to study the impact on the
Commonwealth of legalizing the sale and personal use of marijuana. The work group shall
consult with the Attorney General of Virginia, the Commissioner of the Department of Taxation,
the Commissioner of the Department of Motor Vehicles, the Commissioner of the Virginia
Department of Agriculture and Consumer Services, the Executive Director of the Board of
Pharmacy, the Director for the Center for Urban and Regional Analysis at the Virginia
Commonwealth University L. Douglas Wilder School of Government and Public Affairs, the
Virginia State Crime Commission, the Virginia Association of Commonwealth's Attorneys, the
Executive Director of Virginia NORML, a representative of the Virginia Alcoholic Beverage
Control Authority, a representative of a current manufacturer of medical cannabis in Virginia, a
medical professional, a member of a historically disadvantaged community, a representative of
a substance abuse organization, and a representative of a community services board. In
conducting its study, the work group shall review the legal and regulatory frameworks that have
been established in states that have legalized the sale and personal use of marijuana and shall
examine the feasibility of legalizing the sale and personal use of marijuana, the potential
revenue impact of legalization on the Commonwealth, the legal and regulatory framework
necessary to successfully implement legalization in the Commonwealth, and the health effects
of marijuana use. The work group shall complete its work and report its recommendations to
the General Assembly and the Governor by November 30, 2020.

Supporting Arguments

The general rule disfavoring retroactive application of statutes operates to protect private parties from
the government in civil cases. The position of the parties in a criminal prosecution is exponentially
different from that of litigants in a contested civil case. It is for this reason that the Commonwealth
bears the burden of proof beyond a reasonable doubt and criminal statutes are to be strictly construed
against the Commonwealth and in favor of a citizen's liberty. Similarly, a defendant is entitled to the
benefit of a reasonable doubt in the construction of a penal statute just as he is in questions of fact.

The amendments to Va. Codes Ann. § 54.1-3446, 54.1-3401 and § 18.2-247 regarding definitions of
marijuana and schedule 1 substances, do not change the elements of the offense necessary to establish
guilt, nor do they change the penalty structure or punishment for possession with intent to distribute a
schedule I or II substance in any way. The legislature amended the statutes to prevent a person from
being prosecuted for marijuana extracts and concentrates such as hash oil, under the separate
scheduled substance criminal statutes § 18.2-248 and § 18.2-250. A jurisdictional bar to arrest or
prosecution, that rises to the level of procedural amendment under Virginia law. These amendments
relate to the procedural steps and methods to determine a defendant's guilt under § 18.2-248.1, § 18.2-
250.1 and are therefore procedural and not substantive. Under Virginia law, the procedural provisions of
the statute in effect on the date of trial control the conduct of trial insofar as practicable.
The Sentencing guideline sheet for hash oil of Jessica Howard prepared by William Flory prior to the
enactment of chapters 1285 & 1286 was entered correctly. The sentencing guideline sheets for hash oil
subsequent to the enactment of 1285 & 1286 were falsely altered or entered as a completely different
schedule 1 substance by who appears to be William Flory in which myself, and the other 2 defendants
were never indicted for. See attachments E, F, and G.

§ 1-239 is a part of VA Code ann Title 1, Chapter 2.1 and is a rule of construction for the code of Virginia
in its entirety. VA Code § 1-202 explains that the court must use code § 1-239 and the other rules of the
chapter in the construction of the code and the acts the general assembly, unless the construction
would be inconsistent with the manifest intentions of the general assembly.

§ 1-202. General rule of construction.

The rules and definitions set forth in this chapter shall be used in the construction of this Code
and the acts of the General Assembly, unless the construction would be inconsistent with the
manifest intention of the General Assembly.

§ 1-239. Repeal not to affect liabilities; mitigation of punishment.

No new act of the General Assembly shall be construed to repeal a former law, as to any offense
committed against the former law, or as to any act done, any penalty, forfeiture, or punishment
incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect
any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or
any right accrued, or claim arising before the new act of the General Assembly takes effect; except that
the proceedings thereafter held shall conform, so far as practicable, to the laws in force at the time of
such proceedings; and if any penalty, forfeiture, or punishment be mitigated by any provision of the new
act of the General Assembly, such provision may, with the consent of the party affected, be applied to
any judgment pronounced after the new act of the General Assembly takes effect.

Utilizing code § 1-239 to revive by statutory construction the annulled/revoked provisions of

codes § 54.1-3401, § 18.2-247 and § 54.1-3446 would be inconsistent with the manifest intent
of the General Assembly, it also imputes to the legislature intent to contravene the Virginia
Constitution. When such construction can easily be avoided with law in giving effect to the
amended statute.

I invoke the elementary rule of statutory construction that when a statute is revised or when, as in the
case of code § 54.1-3401; which is the essential requirement in the operation of code § 18.2-248, one
act is framed from another and portions of the former are omitted, the missing part will not be revived
by statutory construction, but will be considered as annulled or revoked. A contrary holding would have
to be based on a presumption that the omission was inadvertent and would require us to impute to the
legislature gross carelessness or ignorance, an exercise in which we will not engage.
While the provisions of the statute under which I was convicted were valid at the time of my pleadings,
they are conclusively unconstitutional now, at the time of my sentencing, and were so before this
motion and my previous motion were filed. The principals applicable to the jurisdiction of the trial court
and the retroactive application of new rules for criminal prosecutions apply.

I am relying on the Honorable Waynesboro Circuit Court to uphold the Virginia Constitution by not
continuing to recognize hash oil as a separate scheduled substance, with a separate criminal prosecution
procedure apart from marijuana after July 1, 2020,. By not allowing a strained construction of the
amendments to § 54.1-3401, § 18.2-247 and § 54.1-3446, that subverts the legislative intent expressed
in Chapter 1286. One which is also construed in favor of the Commonwealth, supersede what has
actually been stated by the General Assembly in order to effectuate sentencing under § 18.2-248.

Supporting Citations

17 Michies Jurisprudence 86: Construction of amendments

The new provisions become operative at the time the amendatory act goes into effect, and all such
portions of the original statute as are omitted from the amendatory act are abrogated thereby and are
thereafter no part of the statute

17 Michies Jurisprudence 92: Subsequent act revising whole subject of former act

A statute revising the whole subject matter of a former one or a former series of statute BECOMES BY
REASON OF ITS SCOPE AND PURPOSE, TO THE FULL EXTENT OF THE TERMS USED AND
NECCESARILY IMPLIED, THE EXCULSIVE RULE OF LAW GOVERNING THE SUBJECT and is therefore a
substitute for the former statute or statutes, repealing such parts there of as are inconsistent with the
new act and not a mere amendatory act adding to or detracting from the former laws.

17 Michies Jurisprudence 107: Repeal and reenactment of statute as substitute

A special statutory provision in one chapter of a code, substantially withdrawing from the operation of
another chapter one of the subject thereof and making specific and comprehensive regulations
respecting the same, apparently, complete so far as they go and radically different from those of the
general provisions by which the subject has previously governed, excepts such subject from the
operations of the general statute to the extent to which it is governed by the special provision and is pro
tanto a substitute for the general statue formerly governing the subject matter.

(The statutory provisions in § 54.1-3446, § 18.2-247 and § 54.1-3401 substantially withdrew from the
operations of 18.2-248)

17 Michies Jurisprudence 87: Effect of amendments

As to the applicability of an amended statute with respect to cases pending but not disposed of at the
time of the amendment, it has been consistently held that an intervening statutory change, particularly
one affecting jurisdiction, is applicable.

“A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.”

Darnell v. Commonwealth, 12 Va.App. 948, 952, 408 S.E.2d 540, 542 (1991) (quoting Griffith v. Kentucky,
479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)); Kelly v. Commonwealth, 8 Va.App. 359,
368, 382 S.E.2d 270, 275 (1989); Taitano v. Commonwealth, 4 Va.App. 342, 345 n. 1, 358 S.E.2d 590,
591 n. 1 (1987).

“The problem with not applying new rules to cases pending on direct review is ‘the actual inequity that
results when the Court chooses which of many similarly situated defendants should be the chance
beneficiary’ of a new rule.”

(United States v. Johnson, 457 U.S. 537, 556 n. 16, 102 S.Ct. 2579, 2591 n. 16, 73 L.Ed.2d 202 (1982)).

"A court lacks jurisdiction to enter a criminal judgment if the judgment is predicated upon an
unconstitutional or otherwise invalid statute or ordinance."

(Fraser V. Commonwealth, 16 Va. App. 775, 777, 433 S.E.2d 37, 38 1993).

An order of a court of the Commonwealth can be "void" by operation of two concepts. An order may be
"void ab initio," meaning it was without effect from the moment it came into existence. In that respect it
is "void." Such a void order is a nullity without force or effect and may be collaterally challenged. An
order of a court may also be "voidable" if it contains reversible error.

Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001).

A collateral challenge to a judgment obtained by extrinsic fraud is allowed because such fraud perverts
the judicial processes and prevents the court or non-defrauding party from discovering the fraud
through the regular adversarial process."

Peet, 16 Va. App. at 327, 429 S.E.2d at 490.

The distinction between an action of the court that is void ab initio rather than merely voidable is that
the former involves the underlying authority of a court to act on a matter whereas the latter involves
actions taken by a court which are in error. An order is void ab initio if entered by a court in the absence
of jurisdiction of the subject matter or over the parties, if the character of the order is such that the
court had no power to render it, or if the mode of procedure used by the court was one that the court
could "not lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828
(1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)). The lack of jurisdiction to
enter an order under any of these circumstances renders the order a complete nullity and it may be

"impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." Barnes v.

Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925). Consequently, Rule 1:1 limiting the
jurisdiction of a court to twenty-one days after the entry of the final order does not apply to an order
which is void ab initio.

Yourko v. Yourko, 2021 Va. App. 74 Va. App. 80 | 866 S.E.2d 588

December 21, 2021, Decided Record No. 0363-21-1

Overview
HOLDINGS: [1]-The final decree was a final judgment for purposes of Va. Sup. Ct. R. 1:1 and resolved all substantive issues; it
declared the divorce between the husband and wife, while also dictating equitable distribution divisions between them; [2]-
While the circuit court had subject matter jurisdiction to rule on the divisibility of military benefits, the court did not have the
power to enter the indemnification orders, rendering them void ab initio; because support levels, tax credit issues, and related
fee questions decided below were tied to the equitable distribution award, it was necessary to remand the equitable
distribution and related determinations to the circuit court so that it could set the marital share of the military pension and
perform any necessary balancing of relevant factors to establish appropriate spousal support and child support levels.
Outcome
Reversed and remanded.

"Criminal statutes should support a criminal prosecution only in those cases clearly falling within the
language of the statute, and before punishing and individual for violating a criminal statute, his case
must be plainly and unmistakably within the statute."

(Law V. Commonwealth VA Appeals Court 11-12-2002 Record 0209-02-01)

"While it is true that penal statutes must be strictly construed against the Commonwealth in criminal
cases, the Supreme Court will not apply an unreasonably restrictive interpretation of the statute that
would subvert the legislative intent expressed therein. The Supreme Court will not assign a construction
that amounts to holding that the General Assembly did not mean what it actually has stated. "

(Botkin V. Commonwealth Supreme Court of VA 11-1-18 Record 171555)

"If language of a statute is clear and unambiguous, there is no need for construction by the court, the
plain meaning and intent of the enactment will be given it. When an enactment is clear and unequivocal,
general rules of construction do not apply. "

(Brown V. Commonwealth 284 Va 538 Supreme Court 11-1-12 Record 120112)

"In statutory interpretation, the primary objective is to ascertain and give effect to legislative intent.
Thus the court construes a statute with reference to its subject matter, the object sought to be attained,
and the legislative purpose in enacting it; the provisions should receive a construction that will render it
harmonious with that purpose rather than one which will defeat it. The Court will not apply an
unreasonably restrictive interpretation of the statute that would subvert the legislative intent
expressed. "

(Brown V. Commonwealth 284 Va 538 Supreme Court 11-1-12 Record 120112)

“An unconstitutional law is void and is not law. An offense created by it is not a crime. A conviction
under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.”

(Siebold, 100 U.S. 371, 376–77, 25 L.Ed. 717 (1879))

“Once a statute has been declared unconstitutional, the ․ courts thereafter have no jurisdiction over
alleged violations (since there is no valid ‘law ․’ to enforce)․”.

United States v. Baucum, 80 F.3d 539, 540–41 (D.C.Cir.1996)

Wherefore, I the defendant, Julian Keith Tracey-Rucker hereby move this Honorable Court to vacate the
charge of § 18.2-248 Manufacturing, selling, giving, distributing, or possessing with intent to
manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance
prohibited; penalties.
 Julian Tracey-Rucker Pro Se’

CERTIFICATE
I hereby certify that a true and accurate copy of this motion was electronically delivered to the office of
the Commonwealth’s Attorney for the City of Waynesboro, Gorsuch Building, 205 S. Wayne Ave., Suite
204 Waynesboro VA, 22980-4625 this 3rd day of February 2022. I further certify that a copy of this
motion was emailed to David Ledbetter ledbetterdl@ci.waynesboro.va.us this 3rd day of February 2022

Julian Tracey-Rucker Pro Se’