PRESENT: All the Justices

DONTE LAMAR JONES
                                                                        OPINION BY
v. Record No. 131385                                            JUSTICE D. ARTHUR KELSEY
                                                                       February 2, 2017
COMMONWEALTH OF VIRGINIA

                      FROM THE CIRCUIT COURT OF YORK COUNTY
                               Richard Y. AtLee, Jr., Judge

       Acting on a petition for certiorari, the United States Supreme Court in Jones v. Virginia,

136 S. Ct. 1358 (2016), vacated and remanded Jones v. Commonwealth (Jones I), 288 Va. 475,

763 S.E.2d 823 (2014), for our reconsideration in light of Montgomery v. Louisiana, 577 U.S.

___, 136 S. Ct. 718 (2016). Having done so, we now reinstate our holding in Jones I, subject to

the qualifications made herein, and affirm the trial court’s denial of the motion to vacate filed by

Donte Lamar Jones.

                                                 I.

       In 2000, Jones and an accomplice, both armed and wearing masks, robbed two night

clerks at a convenience store. They ordered both clerks to lie down on the floor. After his

accomplice took roughly $35 from the cash register and the two were fleeing the scene, Jones

shot one of the clerks in the back as she laid on the floor. The following day, Jones stated, “I

think I paralyzed the bitch.” J.A. at 9-10. In fact, however, Jones’s gunshot wound had killed

her. At the time of the offense, Jones was a few months away from his 18th birthday and was on

supervised juvenile probation for a felony offense committed when he was 15 years old.

       After his arrest, Jones entered an Alford guilty plea to capital murder and several related

charges. He executed a plea agreement stipulating that he would receive a life sentence “without

the possibility of parole” on the capital murder charge and a term of years to be determined by

the court on the remaining charges. Id. at 45. The plea agreement also stipulated that Jones
agreed “to waive any and all rights of appeal with regard to any substantive or procedural issue

involved in this prosecution.” Id. at 44.

        The trial court held a sentencing hearing and received a presentence report from a

probation officer. The court imposed the life sentence pursuant to the plea agreement, as well as

a 68-year term of incarceration on the remaining 10 felony charges. The sentencing order

concluded: “TOTAL SENTENCE IMPOSED: LIFE + 68 YEARS” followed by “TOTAL

SENTENCE SUSPENDED: NONE.” Id. at 53.

        After serving 12 years of his sentence, Jones filed a motion to vacate his life sentence in

the trial court, claiming that it violated the principles articulated in Miller v. Alabama, 567 U.S.

___, 132 S. Ct. 2455 (2012), which was issued by the United States Supreme Court 11 years

after his convictions. In Miller, two juvenile defendants received mandatory life sentences

without the possibility of parole. Under applicable law, the state sentencing courts had no power

to suspend in whole or in part either of the two mandatory life sentences. See Ala. Code § 15-

22-50 (“The court shall have no power to suspend the execution of sentence imposed upon any

[convicted] person . . . whose punishment is fixed at death or imprisonment in the penitentiary

for more than 15 years.”); 1 Ark. Code Ann. § 5-4-104(e)(1)(A)(i) (“The court shall not suspend

imposition of sentence as to a term of imprisonment nor place the defendant on probation for . . .

[c]apital murder.”). 2


        1
          See also Belote v. State, 185 So. 3d 1154, 1155 (Ala. Crim. App. 2015) (finding that
“because the circuit court imposed a sentence of 16 years’ imprisonment, pursuant to § 15-22-50,
the circuit court was without authority to suspend the execution of [appellant’s] sentence”); Little
v. State, 129 So. 3d 312, 313 (Ala. Crim. App. 2012) (holding that, pursuant to Ala. Code § 15-
22-50, the trial court was “without jurisdiction” to impose a completely suspended 20-year
sentence).
        2
         See also State v. Colvin, 427 S.W.3d 635, 638 (Ark. 2013) (noting that Ark. Code Ann.
§ 5-4-104 “prohibit[s] probation and the suspended imposition of sentence for the offense[] of
capital murder”).


                                                  2
       Miller held that “a judge or jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible penalty for juveniles.” Miller, 567 U.S. at

___, 132 S. Ct. at 2475 (emphasis added). A “mandatory sentencing” scheme that eliminates this

opportunity, Miller concluded, could be constitutional only if at some later date the prisoner is

afforded the “possibility of parole” — not the guarantee of it. Id. (emphasis added).

       Miller was quite clear about what it meant by a mandatory sentence: “Such mandatory

penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the

wealth of characteristics and circumstances attendant to it.” Id. at ___, 132 S. Ct. at 2467

(emphasis added). Miller thus concluded that, “[b]y making youth (and all that accompanies it)

irrelevant” to imprisonment for life without parole, mandatory, life-without-parole sentences for

juveniles violate the Eighth Amendment. Id. at ___, 132 S. Ct. at 2469. Underlying this holding

was the necessary premise that it could only apply to an actual, not a suspended, life-without-

parole sentence imposed upon a juvenile offender because only the former, not the latter, would

involve “condemning him or her to die in prison.” Montgomery, 577 U.S. at ___, 136 S. Ct. at

726 (summarizing Miller).

       Relying on Miller, Jones’s motion before the trial court expressly stated that it “only

deal[t] with the Capital Murder charge.” J.A. at 56. His motion also proposed an “alternative

option” to his request for vacatur of the life sentence. Id. at 61. “Pursuant to Code § 19.2-303,”

Jones argued, the trial court “‘may suspend imposition of sentence or suspend the sentence in

whole or part’ on the Capital Murder conviction.” Id. (quoting Code § 19.2-303); see also id. at

55-56. The motion to vacate concluded with this prayer for relief: “Suspend the mandatory life

sentence without parole or declare Mr. Jones’s conviction for Capital Murder void in the absence

of any legal punishment the Court can lawfully impose.” Id. at 62.




                                                 3
        The motion to vacate, however, made no factual proffer and left the question whether to

hold an evidentiary hearing entirely within the discretion of the trial court. The motion requested

that the trial court “grant Mr. Jones an evidentiary hearing on the claims presented in this

Motion” only “if the Court determine[d] there [was] a need for further factual development.” Id.

The trial court denied the motion “after review of the case file and the defendant’s motion,”

observing that Jones presented “nothing new in mitigation of the offense.” Id. at 65.

        On appeal of the trial court’s denial of the motion to vacate, we “h[e]ld that because the

trial court ha[d] the ability under Code § 19.2-303 to suspend part or all of the life sentence . . . ,

the sentencing scheme applicable to Jones’s conviction was not a mandatory life without the

possibility of parole scheme.” Jones I, 288 Va. at 477, 763 S.E.2d at 823. Thus, we reasoned,

Miller was inapplicable to the Virginia sentencing law at issue “even if it is to be applied

retroactively.” Id. at 481, 763 S.E.2d at 826.

        We came to this conclusion because Virginia law does not preclude a sentencing court

from considering mitigating circumstances, whether they be age or anything else. To be sure,

sentencing statutes specifically authorize a trial court to do so, even to the point of suspending

entirely a life sentence so that the offender never spends a day in prison. See Code § 19.2-303.

Nor does Virginia law make “youth (and all that accompanies it) irrelevant” to the court’s

sentencing discretion. Miller, 567 U.S. at ___, 132 S. Ct. at 2469. Nothing in the statutory

suspension power suggests that the offender’s youth should be legally irrelevant to the exercise

of the sentencing court’s discretion.

        Dissatisfied with our reasoning, Jones filed a petition for certiorari to the United States

Supreme Court arguing that he never truly had the mitigation opportunity. Despite the

unqualified text of Code § 19.2-303 authorizing the power of suspension and our unanimous




                                                   4
opinion applying it to his case, Jones argued that we were plainly wrong: “Because life without

parole is the only sentence (other than death) authorized under Virginia’s capital murder statute,

the Virginia Supreme Court’s characterization of that sentence as ‘not mandatory’ rings hollow.”

Pet. Cert. at 9 n.2 (emphasis in original).

         Jones’s petition for certiorari did not call attention to conflicting prior precedent or

suggest that we had abruptly changed course in established legal doctrine governing the

suspension power of a sentencing court. Neither did his petition put forward any legal analysis

suggesting that our application of Code § 19.2-303 to life sentences rested upon a flawed

statutory interpretation. Instead, he merely argued that the power to suspend a life sentence

(even to the point of not serving a day in prison) was an insufficient “opportunity” for the

sentencing court to take into account “mitigating circumstances before imposing the harshest

possible penalty for juveniles.” Miller, 567 U.S. at ___, 132 S. Ct. at 2475; see also Pet. Cert. at

13-15.

         Before ruling on the merits of Jones’s petition, the United States Supreme Court issued

Montgomery v. Louisiana, which decided the “question whether Miller’s prohibition on

mandatory life without parole for juvenile offenders indeed did announce a new substantive rule

that, under the Constitution, must be retroactive.” 577 U.S. at ___, 136 S. Ct. at 732.

Montgomery held that Miller was retroactive, and thus, juvenile defendants “must be given the

opportunity [at the time of sentencing] to show their crime did not reflect irreparable corruption;

and, if it did not, their hope for some years of life outside prison walls must be restored” by the

possibility of future parole. Id. at ___, 136 S. Ct. at 736-37 (emphases added). 3 Like the



         3
          Montgomery acknowledged that “Miller did not require trial courts to make a finding of
fact regarding a child’s incorrigibility” and “did not impose a formal factfinding requirement” on
this mitigation issue. Montgomery, 577 U.S. at ___, 136 S. Ct. at 735.


                                                    5
sentencing statutes reviewed in Miller, the Louisiana law addressed in Montgomery forbade the

sentencing court from suspending in whole or in part the life sentence without parole in capital

cases. See La. Stat. Ann. § 14:30(C)(1) (“If the district attorney seeks a capital verdict, the

offender shall be punished by death or life imprisonment at hard labor without benefit of parole,

probation, or suspension of sentence . . . .” (emphasis added)).

       The holding in Montgomery tracked that in Miller: State law cannot impose “mandatory”

penalties that make “youth (and all that accompanies it) irrelevant” to the decision to imprison a

juvenile for life without parole. Montgomery, 577 U.S. at ___, 136 S. Ct. at 726 (quoting Miller,

567 U.S. at ___, 132 S. Ct. at 2469). Mandatory sentencing statutes, “by their nature, preclude a

sentencer from taking account of an offender’s age and the wealth of characteristics and

circumstances attendant to it.” Miller, 567 U.S. at ___, 132 S. Ct. at 2467 (emphasis added). It

was this legal preclusion that Miller and Montgomery deemed unconstitutional. If a mandatory

sentencing statute has that effect, it can survive constitutional scrutiny only if the “possibility of

parole,” id. at ___, 132 S. Ct. at 2469, gives the prisoner a “hope” that he will not “die in prison,”

Montgomery, 577 U.S. at ___, 136 S. Ct. at 736-37.

       Roughly 40 petitions for certiorari implicating Miller were before the United States

Supreme Court at the same time as Jones’s petition. The Court decided them all on the same day

and issued a two-sentence order in each case, stating as applicable, “Petition for writ of certiorari

granted. Judgment vacated, and case remanded . . . for further consideration in light of

Montgomery v. Louisiana, 577 U. S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016).” Jones v.

Virginia, ___ U.S. ___, ___, 136 S. Ct. 1358, 1358 (2016) (per curiam). 4



       4
         See also Baker v. Alabama, 136 S. Ct. 1378 (2016); Black v. Alabama, 136 S. Ct. 1367
(2016); Burgos v. Michigan, 136 S. Ct. 1357 (2016); Carp v. Michigan, 136 S. Ct. 1355 (2016);
Click v. Alabama, 136 S. Ct. 1363 (2016); Contreras v. Davis, 136 S. Ct. 1363 (2016); Cook v.


                                                   6
       In each of these orders, Justices Thomas and Alito filed a concurring statement

explaining the Court’s precise holding:

               The Court has held the petition in this and many other cases
               pending the decision in Montgomery v. Louisiana, 577 U. S. ___,
               136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). In holding this petition
               and now vacating and remanding the judgment below, the Court
               has not assessed whether petitioner’s asserted entitlement to
               retroactive relief “is properly presented in the case.” Id., at ___,
               136 S. Ct. at 732, 193 L. Ed. 2d at 617.

Jones v. Virginia, ___ U.S. ___, ___, 136 S. Ct. 1358, 1358 (2016) (Thomas, J., concurring).

The concurrence clarified, without any suggestion to the contrary in the majority’s form order,

what the remand order did not do:

               On remand, courts should understand that the Court’s disposition
               of this petition does not reflect any view regarding petitioner’s
               entitlement to relief. The Court’s disposition does not, for
               example, address whether an adequate and independent state
               ground bars relief, whether petitioner forfeited or waived any
               entitlement to relief (by, for example, entering into a plea
               agreement waiving any entitlement to relief), or whether
               petitioner’s sentence actually qualifies as a mandatory life
               without parole sentence.

Id. (emphases added).


Michigan, 136 S. Ct. 1358 (2016); Davis v. Michigan, 136 S. Ct. 1356 (2016); Duke v. Alabama,
136 S. Ct. 1378 (2016); Dunlap v. Alabama, 136 S. Ct. 1367 (2016); Flynn v. Alabama, 136 S.
Ct. 1371 (2016); Forman v. Alabama, 136 S. Ct. 1372 (2016); Foster v. Alabama, 136 S. Ct.
1371 (2016); Gardner v. Alabama, 136 S. Ct. 1369 (2016); Gibson v. Louisiana, 136 S. Ct. 1360
(2016); Hogan v. Alabama, 136 S. Ct. 1370 (2016); Iiams v. Alabama, 136 S. Ct. 1370 (2016);
Ingram v. Alabama, 136 S. Ct. 1372 (2016); Jacobs v. Louisiana, 136 S. Ct. 1362 (2016); Lewis
v. Michigan, 136 S. Ct. 1357 (2016); Livas v. Louisiana, 136 S. Ct. 1362 (2016); Martin v.
Smith, 136 S. Ct. 1365 (2016); Matthews v. Alabama, 136 S. Ct. 1366 (2016); McWilliams v.
Alabama, 136 S. Ct. 1373 (2016); Pratt v. Alabama, 136 S. Ct. 1368 (2016); Presley v. Alabama,
136 S. Ct. 1399 (2016); Reeves v. Alabama, 136 S. Ct. 1369 (2016); Riley v. Louisiana, 136 S.
Ct. 1359 (2016); Sanchez v. Pixley, 136 S. Ct. 1361 (2016); Storey v. Alabama, 136 S. Ct. 1373
(2016); Stubbs v. Alabama, 136 S. Ct. 1368 (2016); Tapp v. Louisiana, 136 S. Ct. 1355 (2016);
Thompson v. Roy, 136 S. Ct. 1375 (2016); Tolliver v. Louisiana, 136 S. Ct. 1354 (2016); Tyler v.
Louisiana, 136 S. Ct. 1356 (2016); Williams v. Alabama, 136 S. Ct. 1365 (2016); Williams v.
Louisiana, 136 S. Ct. 1360 (2016); Wilson v. Alabama, 136 S. Ct. 1366 (2016); Young v.
Louisiana, 136 S. Ct. 1359 (2016).


                                                 7
                                                 II.

       On remand, Jones seeks a vacatur of his life sentence on several interdependent grounds.

Under his view of Miller and Montgomery, Jones contends that we must order the trial court to

resentence him to a specific term of years (not life) and to ensure that the term of incarceration is

not long enough to be the “functional equivalent of a life sentence.” Appellant’s Remand Reply

Br. at 9, 14. We find none of Jones’s arguments persuasive. 5

                                                 A.

       Jones first argues that we should hold — contrary to Jones I — that his life sentence was

a mandatory life sentence in violation of Miller. We decline the invitation to do so.

                                                  1.

       As Jones I observed, the General Assembly has carefully distinguished between

“mandatory minimum sentence[s]” that cannot be suspended and non-mandatory minimum

sentences that can be. Jones I, 288 Va. at 479-80, 763 S.E.2d at 825. 6 “Only where the General


       5
          Jones’s motion to vacate filed in the trial court expressly stated that the motion “only
deal[t] with the Capital Murder charge.” J.A. at 56. Consequently, Rule 5:25 precludes Jones
from challenging on appeal any of the sentences imposed on his other convictions. See Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978) (holding that appellate courts
will not consider an argument that differs from the specific argument presented to the trial court
even if it relates to the same general issue). Jones does not assert any grounds for invoking the
“good cause” or “ends of justice” exceptions under Rule 5:25, and we will not sua sponte raise
them on his behalf. See Toghill v. Commonwealth, 289 Va. 220, 239-40, 768 S.E.2d 674, 684
(2015) (McClanahan, J., concurring); see also Widdifield v. Commonwealth, 43 Va. App. 559,
564, 600 S.E.2d 159, 162 (2004) (en banc); Edwards v. Commonwealth, 41 Va. App. 752, 761,
589 S.E.2d 444, 448 (2003) (en banc).
       6
          See Code § 18.2-61(B)(2) (rape by adult offender) for an example of a life sentence that
cannot be suspended. For non-life sentences — of varying severity — that cannot be suspended
see, for example, Code §§ 3.2-4212(D) (unlawful sale/transport of certain tobacco products),
16.1-253.2(A) (repeat violations of certain types of protective orders), 18.2-36.1(B) and -36.2(B)
(aggravated involuntary manslaughter), 18.2-46.3:3 (gang-related activity in gang-free
zones), 18.2-51.1 (malicious wounding of law enforcement officers or other first
responders), 18.2-57 (certain types of assaults and batteries), 18.2-60.4(A) (repeat violations of
certain protective orders), 18.2-61(B)(1) (rape when offender is more than three years the


                                                  8
Assembly has prescribed a mandatory minimum sentence imposing an inflexible penalty has it

‘divested trial judges of all discretion respecting punishment.’” Id. at 479, 763 S.E.2d at 825

(quoting In re: Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985)). 7 What is true

for term-of-years sentences is just as true for life sentences. Unless a statute precludes the

exercise of such discretion, Virginia trial courts can — and do — suspend life sentences. 8 Jones


victim’s senior), 18.2-67.1(B)(1) and -67.2(B)(1) (forcible sex acts when offender is more than
three years the victim’s senior), 18.2-121 (property damage motivated by a victim’s “race,
religious conviction, color or national origin”), 18.2-154 (shooting a firearm at certain types of
vehicles), 18.2-186.4 (use of law enforcement officer’s identity with intent to coerce), 18.2-248
(certain first or repeat drug manufacture, sale, transportation, or distribution offenses), 18.2-
248.01 and -248.03 (same), 18.2-255 (distribution of marijuana to minors), 18.2-255.2 (repeat
drug distribution on school campus), 18.2-270 (repeat DWI convictions), 18.2-308.1 (possession
of explosive device on school campus), 18.2-308.2:2 (thwarting criminal background checks for
firearms), 18.2-374.1 (production of child pornography), 18.2-374.1:1 (repeat reproduction or
transmission of child pornography), 18.2-374.3 (certain electronic solicitation and other child
pornography crimes), 46.2-341.28 (driving a commercial vehicle while intoxicated), 46.2-357(B)
(habitual operation of a motor vehicle while license revoked), 46.2-391 (revocation of license for
multiple DWI convictions), 46.2-865.1 (street racing resulting in death of another), 53.1-203
(escape by a felon from a correctional facility). Notwithstanding the girth of this list, when
“[c]lassifying state guidelines systems along a continuum from most voluntary to most
mandatory, Virginia ranks the most voluntary of [Minnesota, Michigan, and Virginia].” Va.
Crim. Sent’g Comm’n, Annual Report 95 (2014), http://www.vcsc.virginia.gov/2014Annual
Report.pdf.
       7
         The phrase “[m]andatory minimum” in the Virginia Code “means, for purposes of
imposing punishment upon a person convicted of a crime, that the court shall impose the entire
term of confinement, the full amount of the fine and the complete requirement of community
service prescribed by law.” Code § 18.2-12.1. “The court shall not suspend in full or in part any
punishment described as mandatory minimum punishment.” Id. (emphasis added).
       8
          See, e.g., Tyson v. Commonwealth, Record No. 140917, 2015 Va. Unpub. LEXIS 6, at
*1 (Aug. 24, 2015) (unpublished) (life sentence with “all but 13 years suspended”); Hamilton v.
Director of the Dep’t of Corrs., Record No. 131738, 2014 Va. LEXIS 201, at *1 (June 6, 2014)
(unpublished) (two life sentences plus 68-year term sentence “with all but twenty-two years
suspended”); Harris v. Commonwealth, 279 Va. 123, 125 n.2, 128, 688 S.E.2d 279, 280 n.2, 282
(2010) (suspension of life and multiple term-of-years sentences to a total of “eight years of the
life sentence for the abduction conviction”); Moore v. Hinkle, 259 Va. 479, 485, 527 S.E.2d 419,
422 (2000) (suspension of “all but ten years” of a life sentence); Jefferson v. Commonwealth,
Record No. 2172-12-2, 2013 Va. App. LEXIS 311, at *2 (Oct. 29, 2013) (unpublished)
(suspension of all but 20 years of life sentence); White v. Commonwealth, Record No. 1998-96-2,
1997 Va. App. LEXIS 613, at *4 (Sept. 23, 1997) (unpublished) (suspension of two life
sentences and fifteen years of a thirty-year term to “twenty years of active time”).


                                                  9
has offered no persuasive reason to us, either before or after Jones I, in support of the thesis that

life sentences are exempt from the judicial power of suspension. Consequently, we reaffirm

Jones I’s holding that, under Virginia law, “the trial court ha[d] the ability under Code § 19.2-

303 to suspend part or all of the life sentence,” and thus, “the sentencing scheme applicable to

Jones’s conviction was not a mandatory life without the possibility of parole scheme.” 288 Va.

at 477, 763 S.E.2d at 823.

                                                  2.

        Whether a state sentencing statute authorizes or precludes judicial discretion is a matter

solely governed by state law. In the companion case addressed in the Miller opinion, the United

States Supreme Court reaffirmed that whether a state sentencing statute is mandatory (that is,

precludes the possibility of mitigation of the prescribed punishment) is a decision to be made by

“state courts.” Miller, 567 U.S. at ___ n.2, 132 S. Ct. at 2462 n.2. When a state court treats a

sentencing statute as “mandatory,” the United States Supreme Court will “abide by that

interpretation of state law.” Id. 9




        9
          See also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“This Court . . . repeatedly has
held that state courts are the ultimate expositors of state law. . . . Accordingly, we accept as
binding the Maine Supreme Judicial Court’s construction of state homicide law.”); Murdock v.
Memphis, 87 U.S. (20 Wall.) 590, 626 (1875) (“The State courts are the appropriate tribunals, as
this court has repeatedly held, for the decision of questions arising under their local law, whether
statutory or otherwise.”). See generally Winters v. New York, 333 U.S. 507 (1948) (noting the
United States Supreme Court’s respect for and deference to a state court’s interpretation of that
state’s own policy considerations underlying its laws); 18 Susan Bandes et al., Moore’s Federal
Practice § 133.14[1], at 133-17 (Matthew Bender 3d ed. 2016) (“A federal decision based on a
federal judicial construction of state law may not preclude reconstruction of the law by that
state’s own courts. The highest court of each state is the principal expositor of that state’s law,
and therefore the state court may not be bound by a federal construction of that state’s laws.”
(footnote omitted)); 22 Drew S. Days, III, id. § 406.20[3][b][ii], at 406-80 to -81 (“Matters of
state law are not the [United States Supreme] Court’s concern; rather, the state courts are the
appropriate tribunals to decide questions arising under their local law.” (footnote omitted)).


                                                 10
       It follows that where, as here, a State’s highest court treats a sentencing statute as non-

mandatory (that is, provides an opportunity to seek mitigation of the prescribed punishment), the

United States Supreme Court would abide by that interpretation of state law. We thus infer no

disapproval in either Miller or Montgomery of our interpretation of Virginia’s sentencing

statutes. Nor do we believe it proper to read into the remand order “any view” on the question of

“whether petitioner’s sentence actually qualified as a mandatory life without parole sentence.”

Jones, ___ U.S. at ___, 136 S. Ct. at 1358 (Thomas, J., concurring).

                                                 B.

       Jones frames his next argument in equally absolute, but flawed, terms. “Montgomery

confirmed,” Jones argues, “that Miller requires a hearing where youth and its attendant

characteristics are considered as sentencing factors in order to separate those juveniles who may

be sentenced to life without parole from those who may not. Virginia law does not provide for

such hearing.” Appellant’s Remand Br. at 8. We disagree on several levels with this reasoning.

                                                 1.

       As Montgomery explained, the mandatory, life-without-parole sentence under Louisiana

law violated Miller because it gave the juvenile defendant “no opportunity to present mitigation

evidence to justify a less severe sentence.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 726

(emphasis added). 10 Like the sentencing statutes in Miller, the Louisiana statute imposing a



       10
           In a post-argument submission to us, Jones contends that the United States Supreme
Court has recently signaled a far broader interpretation of Miller and Montgomery. That signal,
however, came from only one Justice in a concurrence to a summary opinion granting certiorari,
vacating the lower court’s decision, and remanding without any discussion of the merits of the
petition. See Tatum v. Arizona, ___ U.S. ___, ___, 137 S. Ct. 11, 13 (2016) (Sotomayor, J.,
concurring) (expanding Montgomery to require “more than mere consideration of a juvenile
offender’s age” but to require a particular finding that the offender “is a child ‘whose crimes
reflect transient immaturity’ or is one of ‘those rare children whose crimes reflect irreparable
corruption’” (citation omitted)). The majority did not mention this view, and two other Justices


                                                 11
sentence of life imprisonment on Montgomery was not subject to suspension in whole or in part

by the sentencing court. See La. Stat. Ann. § 14:30(C)(1). Thus, as was the case in Miller, the

state sentencing law at issue in Montgomery precluded the juvenile defendant from either

seeking mitigation of his sentence or offering any evidence in support of such a request.

       In Virginia, however, a criminal defendant has a statutorily provided opportunity to

present mitigation evidence at his sentencing hearing. 11 If relevant and admissible, evidence in

mitigation of punishment can be presented unless the punishment imposed is a mandatory, fixed

sentence that cannot be varied in any degree. 12 This principle is no less true in Jones’s case than


disclaimed it. See id. at *5-6 (Alito, J., dissenting). Our colleagues in dissent find it relevant that
the Court duplicated the Tatum summary opinion in Arias v. Arizona, ___ U.S. ___, 137 S. Ct.
370 (2016), another summary opinion issued the same day. We are unpersuaded that either
Tatum or Arias has any controlling precedential impact.
       11
           See Code § 19.2-264.4(B) (stating that the sentencing court in a capital case may
consider evidence of “history and background of the defendant, and any other facts in mitigation
of the offense” including, inter alia, the “age of the defendant at the time of the commission of
the capital offense” and the “capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law”); Thomas v. Commonwealth, 244
Va. 1, 7, 419 S.E.2d 606, 609 (1992) (acknowledging that Virginia’s death penalty statute
provides for “individualized consideration” of capital defendants because age is a “statutorily
prescribed mitigating factor the jury may consider” in sentencing); John L. Costello, Virginia
Criminal Law and Procedure § 63.5[1], at 1118 (4th ed. 2008) (“The Commonwealth may not
attempt to preclude the defendant’s offer of evidence in extenuation and mitigation by declining
to put on evidence in aggravation.”); id. § 63.7[3], at 1130-31 (“[T]he trial judge must instruct
the jury concerning the duty to consider matters in mitigation to the extent they found them
supported by evidence of record. . . . Under the statute, the defendant’s age and grasp of moral
considerations are relevant . . . .” (footnotes omitted)); accord Code § 19.2-295.1 (stating that
defendant in non-capital case may present any “relevant, admissible evidence related to
punishment”); Code § 19.2-299(A) (allowing a defendant to offer “any additional facts” bearing
on sentencing in response to pre-sentence report offered in bench trials or non-capital jury trials);
Rule 3A:17.1(e)(4) (allowing defendant convicted of non-capital felony offense to produce
“relevant, admissible evidence related to punishment”); Commonwealth v. Shifflett, 257 Va. 34,
43-44, 510 S.E.2d 232, 236 (1999) (stating that the trial court “may be guided” by mitigating
factors listed in the capital sentencing statute, Code § 19.2-264.4, when sentencing non-capital
offenders).
       12
          “[U]nder the Virginia practice, the punishment as fixed by the jury is not final or
absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in
whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal.”


                                                  12
in any other criminal case. Moreover, Virginia’s sentencing laws — unlike the laws found

unconstitutional in Miller — authorized the sentencing court to suspend Jones’s life sentence in

whole or in part. Nothing in Virginia law denied Jones the opportunity to request a suspension

and to present evidence of his “youth and attendant characteristics,” Montgomery, 577 U.S. at

___, 136 S. Ct. at 734, in support of a suspended sentence. Jones was never denied this

constitutionally required opportunity. For the certainty of a plea agreement, he simply chose not

to exercise it.

                                                  2.

        Jones’s argument to the contrary seems oblivious to the fact that he entered into a plea

agreement in which he stipulated to a life sentence “without the possibility of parole” on the

capital murder charge. See J.A. at 45. 13 He also agreed “to waive any and all rights of appeal

with regard to any substantive or procedural issue involved in this prosecution.” Id. at 44.

Consistent with the prevailing view, see 7 Wayne R. LaFave et al., Criminal Procedure § 27.5(c),

at 86 (4th ed. 2015) (observing that “[m]ost courts, including all twelve federal courts of appeals

with criminal jurisdiction, uphold appeal waivers”), 14 Virginia has long held that a criminal


Vines v. Muncy, 553 F.2d 342, 349 (4th Cir. 1977). Furthermore, “[a] defendant convicted of a
felony has an absolute right to have a presentence investigation and report prepared upon his
request and submitted to the court prior to the pronouncement of sentence.” Duncan v.
Commonwealth, 2 Va. App. 342, 345-46, 343 S.E.2d 392, 394 (1986). “The presentence report
generally provides the court with mitigating evidence.” Id. at 345, 343 S.E.2d at 394.
        13
           At no point in the trial court or during this appeal has Jones asserted that he entered
into his plea agreement involuntarily.
        14
         As most courts have held, “because other important constitutional rights of the
defendant may be waived by plea agreement, the right to appeal, which is not even guaranteed by
the Constitution, but by statute, should also be subject to waiver.” Congdon v. Commonwealth,
57 Va. App. 692, 696, 705 S.E.2d 526, 528 (2011) (quoting 7 Wayne R. LaFave, Criminal
Procedure § 27.5(c), at 75-76 (3d ed. 2007)); see also United States v. Lo, 839 F.3d 777, 783 (9th
Cir. 2016); United States v. Rodriguez, 659 Fed. Appx. 671, 673 (2d Cir. 2016) (unpublished);
United States v. Haslam, 833 F.3d 840, 844 (7th Cir. 2016); United States v. Betancourt-Pérez,
833 F.3d 18, 22 (1st Cir. 2016); United States v. Fazio, 795 F.3d 421, 425 (3d Cir. 2015); United


                                                 13
defendant can waive “his appeal of right” if the circumstances demonstrate “his decision to

waive his appeal was made knowingly, voluntarily, and intelligently,” Davidson v.

Commonwealth, 244 Va. 129, 131, 419 S.E.2d 656, 658 (1992) (accepting waiver of right to

appeal capital conviction but applying a specific statutory exception mandating limited appellate

review of all death sentences). 15

       In short, Jones was never denied the opportunity to offer mitigation evidence of his

“youth and attendant characteristics,” Montgomery, 577 U.S. at ___, 136 S. Ct. at 734, in support

of a suspended sentence. He affirmatively waived that right as part of a negotiated plea

agreement. 24 Daniel R. Coquillette et al., Moore’s Federal Practice § 611.08[4][a], at 611-84

(Matthew Bender 3d ed. 2016) (“There is a ‘presumption that legal rights generally, and

evidentiary rights specifically, are subject to waiver by voluntary agreement of the parties.’ A

plea of guilty entered on the competent advice of counsel will be held to waive all constitutional

objections to the conviction . . . unless the jurisdiction in which the case arises specifically

permits appeals on those issues, even after a plea of guilty.” (footnote omitted) (quoting United

States v. Mezzanatto, 513 U.S. 196, 203 (1995))). He also expressly waived his right to

challenge his sentence on direct appeal and, a fortiori, on collateral attack. His present argument




States v. Shemirani, 802 F.3d 1, 2 (D.C. Cir. 2015); United States v. Archie, 771 F.3d 217, 221
(4th Cir. 2014), cert. denied, Archie v. United States, 135 S. Ct. 1579 (2015), sentence vacated,
2016 U.S. Dist. LEXIS 81872, at *2 (E.D.N.C. June 23, 2016); United States v. Keele, 755 F.3d
752, 754 (5th Cir. 2014), cert. denied, 135 S. Ct. 1174 (2015); United States v. Gibney, 519 F.3d
301, 305-06 (6th Cir. 2008); United States v. Smith, 500 F.3d 1206, 1210 (10th Cir. 2007);
United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006); United States v. Blick, 408 F.3d
162, 168 (4th Cir. 2005); United States v. Lemaster, 403 F.3d 216, 219-20 (4th Cir. 2005);
United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc).
       15
         See also Hudson v. Commonwealth, 267 Va. 29, 33, 590 S.E.2d 362, 364
(2004); Emmett v. Commonwealth, 264 Va. 364, 370, 569 S.E.2d 39, 43-44 (2002); Patterson v.
Commonwealth, 262 Va. 301, 306, 551 S.E.2d 332, 335 (2001).



                                                  14
thus amounts to a challenge that he was never afforded an opportunity to present evidence that he

never offered and to request relief that he never sought.

       Putting aside for the moment Jones’s void-ab-initio contention, which we address in Part

II(C) of this opinion, we fail to see how his Miller-Montgomery claim can be immunized from

waiver principles that govern all other constitutional challenges. See, e.g., McDonald v.

Commonwealth, 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007) (holding that appellant had

waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth, 182 Va.
327, 336, 28 S.E.2d 687, 691 (1944) (affirming express waiver of various constitutional rights,

including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v.

Epps, 91 Va. 726, 737, 21 S.E. 119, 122 (1895) (observing, in a Sixth Amendment challenge,

that it is “beyond a doubt” that “a prisoner may waive many of his constitutional rights”).

       Nothing in Montgomery undermines settled waiver principles. Nor does the remand

order do so. As the concurring Justices pointed out, the remand order disclaims any position

whatsoever on “whether an adequate and independent state ground bars relief” or “whether

petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea

agreement waiving any entitlement to relief).” Jones, ___ U.S. at ___, 136 S. Ct. at 1358

(emphasis added). We are thus free to employ traditional waiver principles applicable to plea

agreements. Those principles, in our opinion, are dispositive in this case.

                                                  C.

       Jones next addresses the fact that, at his original sentencing, he never asked for a

mitigation hearing, never proffered any mitigation evidence, expressly stipulated to his life

sentence as a condition of his plea agreement, and affirmatively waived any appellate challenge

to his conviction or sentence. That is of no concern, Jones claims, because his sentence was void




                                                  15
ab initio — a doctrinal “royal flush” that outranks any lesser hands of procedural default,

estoppel, or even judicial stipulations.

        This assertion, however, presupposes that the trial court violated the Eighth Amendment

by accepting Jones’s Alford guilty plea and by imposing the life sentence Jones agreed to in the

plea agreement. As Montgomery explained, a mandatory, life-without-parole sentence violates

Miller when it provides the juvenile defendant “no opportunity to present mitigation evidence to

justify a less severe sentence.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 726 (emphasis

added). Under Virginia law, Jones had such an opportunity. See supra Part II.B. He simply

failed to exercise it.

        But even if, as Jones’s logic implies, the trial court — over a decade ago — had a

constitutional duty to force Jones to violate his plea agreement by requesting a partial or

complete suspension of his stipulated sentence and then, whether requested or not, to order Jones

to present mitigation evidence in support of an unrequested suspension, we would not hold that

such a violation renders his sentence void ab initio. Nothing in Virginia or federal law compels

us to do so, and we can think of no good reason why we should.

                                                  1.

        In this case, as in most, whether an alleged error by a trial court renders its order void ab

initio or merely voidable turns on the subtle, but crucial, distinction deeply embedded in Virginia

law “between a court lacking jurisdiction to act upon a matter and the court, while properly

having jurisdiction, nonetheless erring in its judgment.” Kelley v. Stamos, 285 Va. 68, 75, 737
S.E.2d 218, 221-22 (2013). “In this context, a matter is void either because it has been null from

the beginning (void ab initio) or because it is declared null although seemingly valid until that

point in time (voidable).” Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73, 77-78 (2001).




                                                  16
Significantly, “very few judgments are totally void and subject to attack at any time.” Costello,

supra note 11, § 62.12, at 1087.

       This distinction guards against the improper elevation of a court’s failure “to comply with

the requirements for exercising its authority to the same level of gravity as a lack of subject

matter jurisdiction.” Nelson, 262 Va. at 281, 552 S.E.2d at 75; see also Burrell v.

Commonwealth, 283 Va. 474, 480, 722 S.E.2d 272, 275 (2012). In this sense, a trial court has

“jurisdiction to err” just as an appellate court has jurisdiction to correct such errors. Parrish v.

Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 146 (1995) (citation omitted).

       As subtle as this distinction may be, it has a sharp impact on criminal cases. If a criminal

defendant fails to preserve an issue in the trial court, he can waive claimed violations of his

constitutional right to be free of unreasonable searches and seizures under the Fourth

Amendment, 16 of his Miranda rights under the Fifth Amendment, 17 of his confrontation and




       16
          See, e.g., McGhee v. Commonwealth, 280 Va. 620, 625, 701 S.E.2d 58, 61 (2010)
(refusing to consider appellant’s Fourth Amendment argument based on developments in search-
and-seizure law because appellant had not “object[ed] to the search incident to arrest below”);
Hudson v. Commonwealth, 266 Va. 371, 375, 585 S.E.2d 583, 585 (2003) (finding appellant’s
Fourth Amendment argument “barred from consideration on appeal under Rule 5:25” because
appellant “present[ed] this argument for the first time on appeal”); see also Code § 19.2-
266.2(A)-(B) (providing that a defendant waives his right to challenge the admission of evidence
allegedly obtained in violation of the Fourth Amendment if he does not file a “motion or
objection in a proceeding in circuit court . . . in writing, before trial”).
       17
          See, e.g., Schmitt v. Commonwealth, 262 Va. 127, 145-46, 547 S.E.2d 186, 199 (2001)
(holding that appellant “ha[d] waived on appeal his argument regarding the admissibility of [a
self-incriminating] tape recording” because he had not complied with statutory objection
requirements at trial); Jones v. Commonwealth, 230 Va. 14, 18 n.1, 334 S.E.2d 536, 539 n.1
(1985) (holding appellant’s Fifth Amendment self-incrimination argument waived under Rule
5:25 because “he did not raise these points in the trial court, and we will not consider them
here”); see also Code § 19.2-266.2(A)-(B) (providing that a defendant waives his right to
challenge the admission of evidence allegedly obtained in violation of the Fifth Amendment if he
does not file a “motion or objection in a proceeding in circuit court . . . in writing, before trial”).


                                                  17
speedy trial rights under the Sixth Amendment,18 and even of his right to a jury trial under the

Sixth Amendment. 19 None of these claims, even if conceded to be valid, renders the underlying

judgment void ab initio. Procedural default principles, including Rules 5:25 and 5A:18, still

apply, as do traditional finality principles protecting judgments no longer within the trial court’s

active jurisdiction. See supra notes 16-19 and accompanying text. 20



       18
          See, e.g., Schmitt, 262 Va. at 145-46, 547 S.E.2d at 199 (holding that appellant had
waived his Sixth Amendment right to confrontation by not complying with statutory objection
requirements at trial); Butts v. Commonwealth, 145 Va. 800, 806, 133 S.E. 764, 766 (1926)
(observing that the right to speedy trial “is not self-operative” but must “be claimed, or it may be
waived”); see also Code § 19.2-266.2(A)-(B) (providing that a defendant waives his right to
challenge the admission of evidence obtained in violation of the Sixth Amendment if he does not
file a “motion or objection in a proceeding in circuit court . . . in writing, before trial”).
       19
            See, e.g., Woodard v. Commonwealth, 287 Va. 276, 278, 754 S.E.2d 309, 310 (2014)
(noting the defendant’s waiver of a jury trial in a felony proceeding); Jackson v. Commonwealth,
267 Va. 178, 189, 590 S.E.2d 520, 526 (2004) (acknowledging that the right to a jury trial may
be waived in trial of a capital offense for which the death penalty may be imposed); Fails v.
Virginia State Bar, 265 Va. 3, 8, 574 S.E.2d 530, 533 (2003) (observing that a criminal
defendant “may waive, among other constitutional rights, the right to demand counsel or the
right to demand trial by jury”); accord Heinrich Schepers GmbH & Co. v. Whitaker, 280 Va.
507, 516, 702 S.E.2d 573, 577 (2010) (affirming trial court’s holding that appellant had waived
its right to a jury for the liability but not damages phase of trial).
       20
           We have recognized very few exceptions to the finality principle of Rule 1:1. As our
cases demonstrate, “we apply it rigorously,” Commonwealth v. Morris, 281 Va. 70, 77, 705
S.E.2d 503, 506 (2011), in both criminal and civil cases. We recognize only those exceptions to
finality clearly embedded in our common-law inheritance, when a statute does not provide an
exception to finality. See, e.g., Code §§ 19.2-303 (permitting modification of an unserved
portion of a criminal sentence “at any time before the sentence has been completely served”),
8.01-428 (recognizing power to modify or vacate final orders under specified circumstances,
including fraud on the court, “at any time on [the court’s] own initiative or upon the motion of
any party”), 8.01-654(A)(2) (authorizing petitions for habeas corpus, as applicable, “within one
year after the cause of action accrues” or “within two years from the date of final judgment in the
trial court or within one year from either final disposition of the direct appeal in state court or the
time for filing such appeal has expired”), 8.01-677 (authorizing writs of error coram vobis “after
reasonable notice” for “any clerical error or error in fact for which a judgment may be reversed
or corrected”). In Morris, for example, we noted that “[s]ome jurisdictions have held that audita
querela is available as a remedy to modify a criminal sentence.” 281 Va. at 83, 705 S.E.2d at
509. “However, neither this Court nor any English court prior to the writ’s adoption in this
Commonwealth has ever applied the writ of audita querela in this manner. We will not do so
now.” Id.


                                                  18
       Jones contends that unlawful sentencing orders are different. He is right but not in the

way he supposes. The jurisdictional power of a Virginia trial court to issue a criminal sentence

depends upon the applicable sentencing statutes. See Kelley, 285 Va. at 76, 737 S.E.2d at 222

(acknowledging that “the Constitution of Virginia authorized the General Assembly to confer

power upon the circuit courts” and that “[t]he General Assembly prescribed the applicable

punishments for criminal offenses”). 21

       There is no inherent judicial power to fix terms of imprisonment. See Hernandez v.

Commonwealth, 281 Va. 222, 225, 707 S.E.2d 273, 275 (2011) (explaining that a Virginia trial

court “has no inherent authority to depart from the range of punishment legislatively

prescribed”). Thus, when a trial court imposes a sentence outside the range set by the legislature,

the court’s sentencing order — at least to that extent — is void ab initio because the court has no

jurisdiction to do so. See, e.g., Rawls v. Commonwealth, 278 Va. 213, 221, 683 S.E.2d 544, 549

(2009); Royster v. Smith, 195 Va. 228, 235, 77 S.E.2d 855, 858 (1953) (noting that a sentence is

“void” only if “the court rendering it” did not have “the power to pronounce” it).

       We clarified these points in Rawls. “Prior to Rawls, our jurisprudence had not been

uniform in determining whether a defendant who received an improper sentence was entitled to a

new sentencing hearing.” Grafmuller v. Commonwealth, 290 Va. 525, 529, 778 S.E.2d 114, 116

(2015). “Thus, in Rawls we adopted a bright-line rule that: ‘a sentence imposed in violation of a


       21
           See also Code § 19.2-295(A) (“Within the limits prescribed by law, the term of
confinement . . . and the amount of fine, if any, of a person convicted of a criminal offense, shall
be ascertained by the jury, or by the court in cases tried without a jury.”); Smyth v. Holland, 199
Va. 92, 98-99, 97 S.E.2d 745, 749-50 (1957) (“Provisions relating to the remission of fines and
penalties, punishment and execution of sentences, the commencement of the confinement for
crimes, credits and allowances to convicted persons, and probation and parole, are controlled and
limited by our Constitution and statutes.”); Wilborn v. Saunders, 170 Va. 153, 160-61, 195 S.E.
723, 726 (1938) (describing the legislative task of adopting “[p]enal laws” and the limited
“judicial function” of “fix[ing] the amount of punishment within the limits prescribed by the
legislature”).


                                                19
prescribed statutory range of punishment is void ab initio because the character of the judgment

was not such as the Court had the power to render.’” Id. (quoting Rawls, 278 Va. at 221, 683
S.E.2d at 549). In this context, a sentencing order is void ab initio only if the trial court lacked

“the power to render” it. Id.; accord Burrell, 283 Va. at 480, 722 S.E.2d at 275 (recognizing an

order as void ab initio when the trial court had no “power to render” it). 22

       We respectfully disagree with the dissent’s assertion that Virginia law supports Jones’s

use of a motion to vacate in this context. See post at 44-46. The dissent offers only one

authority in support of that assertion: Loving v. Commonwealth, 206 Va. 924, 925, 147 S.E.2d
78, 79 (1966). That decision, however, was famously reversed by Loving v. Virginia, 388 U.S. 1

(1967), and neither our opinion nor the United States Supreme Court opinion reversing it had a

single line addressing the proper role of motions to vacate under Virginia law. Furthermore, the

issue was not briefed, argued, or decided.

       Under Virginia law, stare decisis does not “foreclose inquiry” into an issue not previously

“raised, discussed, or decided.” Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 560,

554 S.E.2d 55, 59 (2001); see also Selected Risks Ins. v. Dean, 233 Va. 260, 265, 355 S.E.2d
579, 581 (1987) (recognizing that precedent accorded stare decisis weight is contingent upon

“full deliberation upon the issue by the court”); Moses v. Commonwealth, 45 Va. App. 357,



       22
          See, e.g., Frango v. Commonwealth, 66 Va. App. 34, 48-49, 782 S.E.2d 175, 181-82
(2016) (holding that the trial court’s sentence of two years of incarceration was void ab initio
because, per sentencing statutes, the maximum sentence was 12 months, and thus, the trial court
lacked “power to render” the excessive sentence (quoting Rawls, 278 Va. at 221, 683 S.E.2d at
549)); Gordon v. Commonwealth, 61 Va. App. 682, 685-86, 739 S.E.2d 276, 278 (2013)
(reversing appellant’s conviction on the basis that it was void ab initio as to the portion of the
sentence that exceeded applicable sentencing statutes and thus went beyond the trial court’s
power); Zedan v. Westheim, 60 Va. App. 556, 577, 729 S.E.2d 785, 795 (2012) (analyzing
whether the disputed trial court ruling was void versus voidable based on whether “the character
of the order was such that the court had no power to render it” (quoting Singh v. Mooney, 261
Va. 48, 51-52, 541 S.E.2d 549, 551 (2001))).


                                                  20
364 n.4, 611 S.E.2d 607, 610 n.4 (2005) (en banc). For stare decisis to apply, “the court must

have decided the issue for which the precedent is claimed; it cannot merely have discussed it in

dictum, ignored it, or assumed the point without ruling on it.” Bryan A. Garner, et al., The Law

of Judicial Precedent 6 (2016).

        We made this very point about motions to vacate in Hirschkop v. Commonwealth, 209
Va. 678, 166 S.E.2d 322 (1969). Claiming Loving as supportive precedent, the criminal

defendant in Hirschkop filed a motion to vacate his final conviction and sentencing order. Id. at

681-82, 166 S.E.2d at 324. We found several reasons why the motion to vacate was improper.

One was that our Loving decision had no precedential value on the motion-to-vacate issue

because “it does not appear from the opinion in Loving that the question of jurisdiction was

raised or that any motion to dismiss was made by the Commonwealth. Certainly Loving does not

stand for the proposition that any judgment which has become final can be vacated.” Id. We

continue to hold this view. 23

                                                 2.

        Jones claims that Montgomery’s retroactivity holding requires, as a matter of federal law,

that we treat a Miller violation as rendering the sentence void ab initio. After all, Jones points

out, Montgomery uses the term “void” in various places in the opinion to describe

unconstitutional convictions and sentences. What Jones misses, however, is that neither

Montgomery nor any decision upon which it relies holds that such violations render a criminal

conviction or sentence void ab initio. Jones’s argument fails to appreciate the crucial nature of

this distinction.



        23
         We find unpersuasive the dissent’s reliance on Hodges v. Commonwealth, 213 Va. 316,
191 S.E.2d 794 (1972). See post at 42 n.9, 47. We decided Hodges on direct appeal and said
nothing about the availability of a collateral attack.


                                                 21
       “When a new substantive rule of constitutional law is established,” the Supreme Court

explained, “this Court is careful to limit the scope of any attendant procedural requirement to

avoid intruding more than necessary upon the States’ sovereign administration of their criminal

justice systems.” Montgomery, 577 U.S. at ___, 1336 S. Ct. at 735. By using the term “void,”

Montgomery merely said what has been said for over a century. Certain types of constitutional

errors render convictions “void,” i.e., voidable until declared void, and thus subject to collateral

attack in federal habeas proceedings — a precedential anchor securely set in Ex parte Siebold,

100 U.S. 371, 376-77 (1880).

       This voidness principle was introduced by Ex parte Siebold “[i]n support of its holding

that a conviction obtained under an unconstitutional law warrants habeas relief.” Montgomery,

577 U.S. at ___, 136 S. Ct. at 731 (emphasis added) (quoting Ex parte Siebold, 100 U.S. at 376-

77). 24 This conclusion, Montgomery held, also applies to state habeas review, but only to the

extent that the state collateral-review proceeding “is open to a claim controlled by federal law” 25


       24
           Ex parte Siebold cannot be read to say that mere voidable errors can never be
addressed by a habeas court and that a habeas court can only address void-ab-initio errors. If that
were true, of course, there would be no reason for the habeas remedy. The all-purpose motion to
vacate would render habeas irrelevant. But it has not been true for many decades. “Originally,
criminal defendants whose convictions were final were entitled to federal habeas relief only if
the court that rendered the judgment under which they were in custody lacked jurisdiction to do
so.” Danforth v. Minnesota, 552 U.S. 264, 271 (2008) (citing Ex Parte Siebold). However, the
Supreme Court “openly discarded the concept of jurisdiction — by then more [of] a fiction than
anything else — as a touchstone of the availability of federal habeas review, and acknowledged
that such review is available for claims of disregard of the constitutional rights of the accused.”
Id. at 272 n.7 (quoting Wainwright v. Sykes, 433 U.S. 72, 79 (1977)) (citing Waley v. Johnston,
316 U.S. 101, 104-05 (1942)). Habeas corpus is “not restricted to those cases where the
judgment of conviction is void for want of jurisdiction of the trial court to render it.” Waley, 316
U.S. at 104-05.
       25
           See 28 U.S.C. § 2254(b)(1) (requiring generally the exhaustion of state remedies before
initiating habeas action in federal court except when “there is an absence of available State
corrective process”); Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987) (“Postconviction
relief is even further removed from the criminal trial than is discretionary direct review. It is not
part of the criminal proceeding itself, and it is in fact considered to be civil in nature. It is a


                                                 22
and the “claim is properly presented in the case.” Id. at ___, 136 S. Ct. at 731-32. Those last

two caveats are important.

       The law of habeas corpus in this Commonwealth “is open to a claim controlled by federal

law.” Id. at ___, 136 S. Ct. at 731; see, e.g., Griffin v. Cunningham, 205 Va. 349, 355, 136
S.E.2d 840, 845 (1964) (noting that “[i]t is well settled that the deprivation of a constitutional

right of a prisoner may be raised by habeas corpus”); Lacey v. Palmer, 93 Va. 159, 172, 24 S.E.
930, 934 (1896) (evaluating statute under which habeas petitioner was convicted for validity

under Commerce Clause of United States Constitution). We routinely adjudicate federal

constitutional claims that are “properly presented,” Montgomery, 577 U.S. at ___, 136 S. Ct. at

732, in our habeas proceedings.

       The case before us now, however, is not a habeas corpus proceeding. Jones filed a

motion to vacate in the sentencing court 12 years after his conviction, claiming that his sentence

was cruel and unusual under the Eighth Amendment. There is no precedent under Virginia law

for asserting such a claim in a motion to vacate. 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.

       If a motion to vacate had the reach that Jones asserts, the multitude of substantive and

procedural requirements in our habeas corpus law would be permanently sidelined. See Costello,

collateral attack that normally occurs only after the defendant has failed to secure relief through
direct review of his conviction. States have no obligation to provide this avenue of relief, and
when they do, the fundamental fairness mandated by the Due Process Clause does not require
that the State supply a lawyer as well.” (emphasis added) (citations omitted)); see also McKane
v. Durston, 153 U.S. 684, 687 (1894) (“A review by an appellate court of the final judgment in a
criminal case, however grave the offence of which the accused is convicted, was not at common
law and is not now a necessary element of due process of law. It is wholly within the discretion
of the State to allow or not to allow such a review. A citation of authorities upon the point is
unnecessary.”).


                                                 23
supra note 11, § 68.2[2], at 1244 (describing Virginia habeas provisions as “impos[ing] strict

limitations on the time within which petitions . . . may be filed” and highlighting other

procedural requirements). Statutes of limitation, as well as rules governing successive petitions,

jurisdiction of courts to hear such claims, procedural defaults, service of process — none of these

requirements would be relevant if a motion to vacate could be used in place of a petition for

habeas corpus.

       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. Just as habeas corpus cannot be used as a substitute for

a direct appeal, 5 Ronald J. Bacigal, Virginia Practice Series: Criminal Procedure § 21:8, at 669

(2015-2016 ed.), a motion to vacate cannot be used as a substitute for a habeas corpus petition.

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 Jones

asserts must be properly presented in a timely petition for habeas corpus.

       To put the point in the framework of Montgomery, a motion to vacate filed in a trial court

that has long since lost active jurisdiction over the case, see Rule 1:1; Costello, supra note 11,

§ 62.12, at 1087, is not a state collateral-review proceeding “open to a claim controlled by

federal law” and does not involve a claim that is “properly presented” by a motion to vacate,

Montgomery, 577 U.S. at ___, 136 S. Ct. at 731-32. Thus, even if the trial court (retroactively)

violated Miller by imposing the stipulated life-without-parole sentence on Jones, the sentencing

order would not be void ab initio and, thus, subject to annulment by a motion to vacate filed

many years after the trial court lost active jurisdiction over the criminal case. Instead, the

putative Miller violation, if proven, would render the sentence merely voidable — that is,




                                                 24
vulnerable to being judicially declared void — upon review either via direct appeal timely made

or in a habeas corpus proceeding.

       To be sure, Montgomery itself implicitly refutes Jones’s assumption that a sentencing

order in violation of Miller must be deemed void ab initio. Montgomery held that “[a] State may

remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole,

rather than by resentencing them.” Montgomery, 577 U. S. at ___, 136 S. Ct. at 736. How could

that remedy be appropriate for a sentencing order deemed void ab initio, given that it is a

“complete nullity” which, in the eyes of the law, does not exist at all? Grafmuller, 290 Va. at

528 n.1, 778 S.E.2d at 115 n.1 (citation omitted); see also Griffith v. Frazier, 12 U.S. 9, 28

(1814) (noting that an appointment that is “void ab initio” is “absolutely void” and thus renders

all subsequent acts of the appointee voidable). A nonexistent nullity cannot be resurrected by

some future, uncertain event. In this respect, the Montgomery remedy is irreconcilable with the

dissent’s claim that a violation of Miller ipso facto renders the sentence void ab initio.

       While the dissent correctly points out that nowhere does Montgomery specifically state

that habeas relief is the sole remedy available to address an unconstitutional sentence, that point

is directed to the wrong question. The proper mode of collaterally attacking a criminal

conviction and sentence in a state court depends on state law not federal law. See Danforth v.

Minnesota, 552 U.S. 264, 288 (2008) (“[T]he remedy a state court chooses to provide its citizens

for violations of the Federal Constitution is primarily a question of state law.” (citation omitted));

Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (affirming procedural timelines for

postconviction relief under state law and holding that “[w]hen a postconviction petition is

untimely under state law, ‘that [is] the end of the matter’ for purposes of [federal habeas

review]” (citation omitted)); O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999) (noting that




                                                 25
“there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule

providing that a given procedure is not available”). We thus would not expect Montgomery to

say anything about the exclusivity of state habeas relief in Virginia courts.

       What Montgomery did say was that a life-without-parole sentence invalidated by Miller

must be corrected in any state collateral-review proceeding that “is open to a claim controlled by

federal law,” assuming that the “claim is properly presented in the case.” Montgomery, 577 U.S.

at ___, 136 S. Ct. at 731-32. In Virginia, a Miller violation can be addressed on direct review or

in a habeas proceeding. Because the violation, if proven, does not render the sentence void ab

initio but merely voidable, it cannot be addressed by a motion to vacate filed years after the

sentence became final. See Costello, supra note 11, § 62.12, at 1087 (noting that “a voidable

judgment may be attacked only while the trial court that rendered it still has jurisdiction”).

       The dissent appears to believe that every substantive constitutional rule held to be

retroactive, when violated, renders the conviction or sentence void ab initio. See post at 41

(referring to this as the “general approach”). However, only one case cited by the dissent uses

the “void ab initio” expression, United States v. Johnson, 457 U.S. 537, 550 (1982), and that

case, like Siebold, addressed only a federal court’s retroactive use of a new substantive rule in

the context of federal habeas law.

       Even in that context, Johnson synthesized earlier precedent that applied the “notion” of

“void ab initio” judgments (an after-the-fact characterization, given that none of those cases used

that term) only to situations in which a federal habeas court applies a constitutional guarantee

that either “immunizes a defendant’s conduct from punishment” or prevents a “trial from taking

place at all.” Id. at 550-51 (citing cases barring punishment of a defendant invoking the Fifth

Amendment and cases barring prosecutions violative of the Double Jeopardy Clause); see also




                                                 26
Mackey v. United States, 401 U.S. 667, 692-93 & nn.7-8 (1971) (Harlan, J., concurring)

(observing that habeas review historically applied only to cases in which the challenged

conviction involved “conduct beyond the power of the criminal law-making authority to

proscribe” in a way that “punish[ed] for conduct that is constitutionally protected”).

       Nothing in the void-ab-initio “notion” in Johnson sought to dictate how state law governs

the scope and availability of collateral remedies or to mandate that violations of retroactive

substantive rules be treated as defects in subject-matter jurisdiction for purposes of motions to

vacate filed in state courts. The “general approach” referred to by the dissent, post at 41, is

nothing more than the unremarkable fact that habeas courts applying substantive rules

retroactively have authority to declare violative convictions or sentences to be void and to order

appropriate relief. None of these cases hold that state courts must permit such challenges to go

forward outside the parameters of a properly filed habeas petition.

                                                 D.

       Finally, our colleagues in dissent raise several points about the interplay between Miller

and Montgomery that go considerably beyond Jones’s position in this appeal. We respect these

views and offer a brief explanation as to why we cannot agree with them.

                                                 1.

       First, the dissent adopts an “expanded” analysis of Montgomery, post at 33, contending

that Montgomery “require[s] a Miller hearing before a juvenile offender can be sentenced to life

without parole, regardless of whether the sentence is mandatory or discretionary,” post at 36

(emphasis added). This fulsome expansion, however, does not come from Montgomery’s

expansive interpretation of Miller. It comes from the dissent’s expansive interpretation of

Montgomery. As the dissent candidly acknowledges: “Even if Miller and Montgomery did not




                                                 27
expressly require the facts surrounding Jones’s sentencing be reconsidered, I would hold that

juveniles in Virginia facing a sentence of life without parole should be afforded a Miller hearing,

for the reasons stated in Montgomery.” Post at 47 n.11.

       We view the debate through a different prism. “We are duty bound,” of course, “to

enforce the Eighth Amendment consistent with the holdings of the highest court in the land.”

Vasquez v. Commonwealth, 291 Va. 232, 242, 781 S.E.2d 920, 926 (2016). However, our “duty

to follow binding precedent is fixed upon case-specific holdings, not general expressions in an

opinion that exceed the scope of a specific holding.” Id. We believe “the very concept of

binding precedent presupposes that courts are ‘bound by holdings, not language.’” Id. at 242-43,

781 S.E.2d at 926 (quoting Alexander v. Sandoval, 532 U.S. 275, 282 (2001)). This limiting

principle exists because “words [in judicial] opinions are to be read in the light of the facts of the

case under discussion.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); see also Ameur v.

Gates, 759 F.3d 317, 324 (4th Cir. 2014).

       As we recently stated, Miller “held that ‘mandatory life-without-parole sentences for

juveniles violate the Eighth Amendment.” Vasquez, 291 Va. at 240-41, 781 S.E.2d at 925

(quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2464). The main “question” for decision in

Montgomery was equally clear: “whether Miller’s prohibition on mandatory life without parole

for juvenile offenders” should be applied retroactively. Montgomery, 577 U.S. at ___, 136 S. Ct.

at 732. Both cases addressed mandatory life sentences without possibility of parole. The

dissent’s proposed expansion of these holdings to non-mandatory life sentences — based entirely

on dicta in Montgomery — requires attenuated reasoning uninfluenced by stare decisis. 26



       26
           In his Montgomery dissent, Justice Scalia asserted that the majority opinion employed
dicta not for the purpose of “applying Miller, but rewriting it.” Montgomery, 577 U.S. at ___,
136 S. Ct. at 743 (Scalia, J., dissenting). Our colleagues in dissent apparently endorse this view.


                                                 28
       We acknowledge that, perhaps, some post-Montgomery opinion from the United States

Supreme Court might expand the Eighth Amendment to “mandatory or discretionary” juvenile

life sentences generally, as the dissent proposes, with the evident purpose of moving the bar so

high that all life sentences for convicted juvenile murderers and rapists, or juveniles convicted of

other similarly serious crimes, eventually will be judicially deemed cruel and unusual

punishment as a matter of law. The question before us, however, “is what the law is now, not

what it may be in the future. We are not in the speculative business of plotting the future course

of federal precedents.” Clark v. Virginia Dep’t of State Police, 292 Va. ___, ___, 793 S.E.2d 1,

7 (2016); cf. Garcia v. Texas, 564 U.S. 940, 941 (2011) (“Our task is to rule on what the law is,

not what it might eventually be.”).

                                                 2.

       Second, the dissent sees our analysis as a logical conundrum. Miller cannot be

understood, the dissent suggests, to apply only to a mandatory sentence of life without possibility

of parole. This “interpretation of Miller and Montgomery,” the dissent states, “renders the

requirement that a sentencing court hold a hearing and ‘consider a juvenile offender’s youth and

attendant characteristics’ contingent upon whether the sentence to be imposed is mandatory

rather than discretionary.” Post at 35. Continuing this syllogism, the dissent adds, “[b]y that

same logic, the majority concludes that a sentencing court may, but is not constitutionally

required to, consider those factors if the sentence is discretionary.” Post at 35-36.

       We do not endorse this logic or attempt to defend it. Our understanding of Miller is

different — and far clearer — than the thesis criticized by the dissent. Under our view, the

Post at 33 n.2 (noting that the “resultant expansion of Miller did not go unnoticed by the
dissenters” in Montgomery). On this point, we concur with Justice Ginsburg, who aptly
observed that “Cassandra-like predictions in dissent are not a sure guide to the breadth of the
majority’s ruling.” Lee v. Kemna, 534 U.S. 362, 386 (2002) (citation omitted). That observation
is particularly poignant when the predictions are based upon nonbinding dicta.


                                                 29
whole point of Miller was to preclude a sentencing scheme from imposing a mandatory life-

without-parole sentence because doing so would eliminate the sentencing court’s discretion to

impose anything less than that. Only in those nondiscretionary sentencing schemes are the

offender’s “youth and attendant characteristics,” Montgomery, 577 U.S. at ___, 136 S. Ct. at 734,

truly irrelevant.

        The Miller remedy was to require mandatory life sentences to be accompanied by the

possibility of release on parole at some future date. See Miller, 567 U.S. at ___, ___, 132 S. Ct.

at 2469, 2474-75. If that possibility exists, the Miller decision held, there could be no Eighth

Amendment violation. Montgomery added another remedy in cases in which no parole

possibility exists: an opportunity upon resentencing to conduct an evidentiary hearing on the

offender’s youth and attendant characteristics. See Montgomery, 577 U.S. at ___, 136 S. Ct. at

736-37.

        Those are the only two scenarios: (i) mandatory life-without-parole sentences that can be

remedied by the availability of parole and (ii) those for which parole is unavailable and which

therefore require remand for discretionary resentencing. Both the Miller and Montgomery

remedies presuppose that the original life sentence was mandatory such that no mitigating

evidence presented at the original sentencing hearing could have precluded the entry of a

mandatory sentencing order “condemning him or her to die in prison.” Id. at ___, 136 S. Ct. at

726 (summarizing Miller). Without this predicate, neither remedy makes sense.

        Our dissenting colleagues think that we leave out a third scenario, one in which a purely

discretionary sentencing scheme does not require consideration of a juvenile offender’s youth

and attendant characteristics. Under our approach, the dissent warns, a sentencing court could

choose to ignore these factors if the sentence is discretionary.




                                                 30
       We respond by pointing out the unrealistic nature of that scenario. We are aware of no

statute in the nation that authorizes a sentencing court to use its discretion to impose a life-

without-parole punishment on a juvenile but forbids the court from considering the juvenile’s

“youth and attendant characteristics.” Id. at ___, 136 S. Ct. at 734. Nor are we aware of any

case — and this is certainly not one — in which a sentencing statute gave the juvenile offender

the opportunity to present mitigating evidence but the sentencing court arbitrarily refused to

consider it. If there were such a case, we would not need the Eighth Amendment to remedy the

obvious error. We would simply hold that the trial court cannot arbitrarily refuse to consider

relevant evidence that a statute requires the court to consider. See supra notes 11-12 and

accompanying text.

       If Montgomery actually held what the dissent supposes, Montgomery would, ironically,

not amplify Miller but reverse it. A mere future, potential opportunity to present mitigating

evidence at a parole hearing (the remedy authorized by Miller) would never be enough to satisfy

the Eighth Amendment under the dissent’s view of Montgomery. That is because, under the

dissent’s “expanded” analysis of Montgomery, post at 33, only the consideration of mitigation

evidence at the time of sentencing or resentencing would suffice — rendering the dissent’s

reasoning in conflict with basic voidness doctrine. A judicial order that is void ab initio, in the

eyes of the law, never existed. It might be possible to resurrect a legally dead ruling (one later

declared void) but not one that never existed in the first place (one void ab initio). So, too, if a

sentencing order were truly void ab initio, it could not be cured by the hope that, sometime in the

distant future, a parole board may release the prisoner from the void-ab-initio sentence.




                                                  31
                                                III.

        Having reconsidered Jones I in light of Montgomery, we reinstate our holding in Jones I,

subject to the qualifications made herein, and affirm the trial court’s denial of Jones’s motion to

vacate. 27

                                                                                           Affirmed.




JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.

        When this Court first analyzed Jones’s claim, we held as the majority states: that Jones’s

sentence was not a mandatory life sentence. Jones v. Commonwealth (Jones I), 288 Va. 475,

481, 763 S.E.2d 823, 826 (2014). I continue to agree with this part of the holding. However, in

light of the Supreme Court’s recent decision in Montgomery v. Louisiana, 577 U.S. ___, 136 S.

Ct. 718 (2016), I can no longer agree with that portion of Jones I where we held that, because

Jones’s sentence was not a mandatory life sentence, the holding of Miller v. Alabama, 567 U.S.

___, 132 S. Ct. 2455 (2012), does not apply.




        27
           Our rulings substantially track the successful reasoning of the original appellate brief
filed by the Attorney General as it related to the issues addressed in Jones I. After the
Montgomery remand, however, the Attorney General has taken a different view and now
suggests that we should remand the case to the trial court for an additional evidentiary hearing to
consider youth-based mitigation evidence — evidence Jones failed to present at his original
sentencing hearing due to the stipulated sentence in his plea agreement. The Attorney General
interprets Montgomery to require this result. Every aspect of the Attorney General’s change of
position, however, involves purely legal issues on which we must give our de novo judgment.
See generally Gibson v. United States, 329 U.S. 338, 344 n.9 (1946) (“A confession of error . . .
does not relieve this Court of the performance of the judicial function” because “our judicial
obligations compel us to examine independently the errors confessed.” (citation omitted)); Young
v. United States, 315 U.S. 257, 259 (1942) (“[O]ur judgments are precedents, and the proper
administration of the criminal law cannot be left merely to the stipulation of parties.”); CVAS 2,
LLC v. City of Fredericksburg, 289 Va. 100, 117 n.5, 766 S.E.2d 912, 919 n.5 (2015) (“[A] party
cannot concede the law.”).


                                                 32
        In Montgomery, the Supreme Court purposefully clarified and, in my opinion, expanded

the holding in Miller, thereby revealing why this Court’s previous interpretation of Miller in

Jones I was misguided. The Supreme Court’s analysis in Montgomery transparently explains

why Miller is not limited to juvenile offenders facing or serving mandatory life sentences

without parole. Montgomery explicitly requires that a Miller hearing be held before a life

sentence without parole may be imposed upon a juvenile offender in order to comply with the

strictures of the Eighth Amendment. In the absence of such a hearing, the sentence is in

violation of the juvenile’s substantive constitutional rights and a court is without jurisdiction to

impose a life sentence without parole on a juvenile offender. Therefore, such a sentence is void

ab initio. Accordingly, I must respectfully dissent. 1

                                    I. Mandatory Life Sentences

        It is important to first address the basis of my opinion that, contrary to the majority

opinion, Miller is not limited to mandatory life sentences. As Montgomery makes explicitly

clear, Miller “rendered life without parole an unconstitutional penalty for ‘a class of defendants

because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity

of youth.” 577 U.S. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at

2469) (emphasis added). See also id. (“Miller . . . bar[red] life without parole . . . for all but the

rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”). 2 Thus,

Montgomery made it clear that the focus of Miller was not that only mandatory life sentences are



        1
         With regard to the collateral review of Jones’s other sentences, I agree with the majority
that Rule 5:25 bars our consideration of those sentences.
        2
          Although the majority in this Court fails to recognize the significance of Montgomery,
its resultant expansion of Miller did not go unnoticed by the dissenters in the Supreme Court. As
Justice Scalia colloquially put it, “[i]t is plain as day that the majority is not applying Miller, but
rewriting it.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 743 (Scalia J. dissenting).


                                                  33
unconstitutional; rather, it is that the Eighth Amendment requires individualized consideration

before a juvenile can be sentenced to life in prison without the possibility of parole.

       To ensure such individualized consideration, the Supreme Court expressly mandated that

a sentencing court is required to “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison” before imposing

a life sentence upon a juvenile. Miller, 567 U.S. at ___, 132 S. Ct. at 2469. As the Supreme

Court explained in Montgomery, such a hearing is vitally important, as the hearing “gives effect

to Miller’s substantive holding that life without parole is an excessive sentence for children

whose crimes reflect transient immaturity.” 577 U.S. ___, 136 S. Ct. at 735. This is because

“[a] hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors

is necessary to separate those juveniles who may be sentenced to life without parole from those

who may not.” Id. (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2460).

       Thus, when viewed through the lens of Montgomery, it is clear that Miller’s discussion of

mandatory life sentences was not meant to limit application of the opinion to that instance, but

rather to demonstrate how mandatory sentencing schemes foreclose the necessary individualized

consideration.

                 Mandatory life without parole for a juvenile precludes
                 consideration of his chronological age and its hallmark features--
                 among them, immaturity, impetuosity, and failure to appreciate
                 risks and consequences. It prevents taking into account the family
                 and home environment that surrounds him--and from which he
                 cannot usually extricate himself--no matter how brutal or
                 dysfunctional. It neglects the circumstances of the homicide
                 offense, including the extent of his participation in the conduct and
                 the way familial and peer pressures may have affected him.
                 Indeed, it ignores that he might have been charged and convicted
                 of a lesser offense if not for incompetencies associated with youth-
                 -for example, his inability to deal with police officers or
                 prosecutors (including on a plea agreement) or his incapacity to
                 assist his own attorneys. And finally, this mandatory punishment



                                                  34
               disregards the possibility of rehabilitation even when the
               circumstances most suggest it.

Miller, 567 U.S. at ___, 132 S. Ct. at 2468 (citations omitted).

       The majority, however, contends that Montgomery’s express language barring life

without parole for all but the rarest of juvenile offenders is not binding upon it because the

question before the Court in Montgomery was limited to “‘whether Miller’s prohibition on

mandatory life without parole for juvenile offenders’ should be applied retroactively.” (Quoting

Montgomery, 577 U.S. at ___, 136 S. Ct. at 732.) Thus, the majority insists that the precedential

holding in Montgomery amounts simply to: Miller is retroactive.

       By truncating its analysis, the majority ignores the rationale underlying the Supreme

Court’s decision. As the Supreme Court explains, the reason Miller is retroactive is because it

announced a substantive rule of constitutional law that “rendered life without parole an

unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile

offenders whose crimes reflect the transient immaturity of youth.” Montgomery, 577 U.S. at

___, 136 S. Ct. at 734 (quoting Miller, 567 U.S., at ___, 132 S. Ct. at 2469).

       Further, the majority’s interpretation of Miller and Montgomery renders the requirement

that a sentencing court hold a hearing and “consider a juvenile offender’s youth and attendant

characteristics before determining that life without parole is a proportionate sentence” contingent

upon whether the sentence to be imposed is mandatory rather than discretionary. Under the

majority’s interpretation, the factors that serve as the very basis of the substantive holding of

Miller are only constitutionally required to be considered when a sentence is mandatory. By that

same logic, the majority concludes that a sentencing court may, but is not constitutionally




                                                 35
required to, consider those factors if the sentence is discretionary. 3 I find it highly unlikely that

the Supreme Court would tolerate any life sentence without parole to be imposed upon a juvenile

without consideration of the relevant factors, especially considering that “the penological

justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’”

Montgomery, 577 U.S. at ___, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at

2465). 4 Yet the majority concludes that this substantive constitutional right does not extend to

juveniles facing discretionary life sentences without the possibility of parole. The more logical

approach, and the approach I believe is required by Montgomery, would be to require a Miller

hearing before a juvenile offender can be sentenced to life without parole, regardless of whether

the sentence is mandatory or discretionary, thus affording the same constitutional protections to

all juvenile offenders. 5




        3
          That is not to say that a sentencing court would be forbidden from considering these
factors or that it could arbitrarily ignore them if presented with mitigating evidence related to
these factors. Rather, I am simply pointing out that, under the majority’s view, a court imposing
a discretionary life sentence without parole would not be required to hold a hearing and
specifically consider all of the same factors to the same degree as a court imposing a mandatory
life sentence without parole because Miller does not apply.
        4
           As further support for the proposition that the hearing requirement of Miller applies to
all situations where a juvenile homicide offender is facing a sentence of life without parole, the
Court need look no further than the Supreme Court’s recent summary opinion in Arias v.
Arizona, ___ U.S. ___, 137 S. Ct. 370 (2016). In Arias, the defendant sought review of his life
sentence without parole under Miller. State v. Arias, 2015 Ariz. App. Unpub. LEXIS 658 (Ariz.
Ct. App. 2015). The Court of Appeals of Arizona denied relief on the sole basis that Miller did
not apply because the defendant’s life sentence was not mandatory. Id. at *3. Given that the
Supreme Court summarily vacated and remanded the judgment in Arias, the only logical
interpretation for this action is that a majority of the Supreme Court interprets Montgomery as
expanding Miller to apply to all cases where a juvenile is sentenced to life without parole, not
just those cases where the sentence is mandatory.
        5
         For those juvenile offenders who were already sentenced to life without parole and did
not receive the benefit of a Miller hearing, I agree with the majority’s characterization that this
would require a resentencing either to impose a sentence where parole is available or to provide
for a Miller hearing.


                                                   36
                                        II. Miller Hearing

       Next, the majority takes the position that Miller and Montgomery require only that a

defendant have the opportunity to offer mitigation evidence of his youth and attendant

circumstances. Notably, the majority reaches this conclusion by relying on language taken from

the recitation of the facts in Montgomery. 6 On the other hand, the language used throughout the

remainder of the opinion makes it clear that the Supreme Court interpreted Miller as requiring

more than just the opportunity to present mitigation evidence. “Miller requires that before

sentencing a juvenile to life without parole, the sentencing judge take into account ‘how children

are different, and how those differences counsel against irrevocably sentencing them to a lifetime

in prison.’” Montgomery, 577 U.S. ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. ___, 132 S.

Ct. at 2475) (emphasis added). Therefore, “[a] hearing where ‘youth and its attendant

characteristics’ are considered as sentencing factors is necessary to separate those juveniles who

may be sentenced to life without parole from those who may not.” Id. at 735 (quoting Miller,

567 U.S. ___, 132 S. Ct. at 2460) (emphasis added). Disappointingly, the majority pays no heed

to the Supreme Court’s clear statement regarding the need for such a hearing.

       If, as the majority states, a Miller violation only occurs when a juvenile offender is

denied the opportunity to present mitigation evidence, then the entire purpose of a Miller hearing

is undermined. The majority’s analysis ignores the Supreme Court’s admonition that “Miller

requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before

determining that life without parole is a proportionate sentence” regardless of whether the



       6
         Specifically, the majority relies upon language describing the fact that Montgomery’s
“sentence was automatic upon the jury’s verdict, so Montgomery had no opportunity to present
mitigation evidence to justify a less severe sentence.” Montgomery, 577 U.S. ___, 136 S. Ct. at
725 (emphasis added). Such language is clearly not part of the Supreme Court’s holding in
Montgomery.


                                                37
defense presents any mitigating evidence. Id. at ___, 136 S. Ct. at 734 (emphasis added). The

majority’s emphasis on the opportunity to present evidence, rather than on the need for the trial

court’s individualized consideration of such factors, is misplaced. Even if a juvenile offender

foregoes the opportunity to present mitigating evidence, a court does not have the option of

sentencing that juvenile to life without the possibility of parole absent consideration of the

juvenile’s youth and attendant circumstances.

       The majority’s approach places the burden on the juvenile offender to prove that he or

she was not the rare exception to the rule. Notably, however, nothing in Miller requires a

juvenile offender to present any evidence. As previously noted, because Montgomery interprets

Miller as barring life without parole as a punishment for the vast majority of juvenile offenders,

any burden of proof would seem to rest on the prosecution to prove that the juvenile offender

was the rare exception to the rule.

                                            III. Waiver

       The majority further claims that, by entering into a plea agreement and stipulating to a

life sentence, Jones waived the requirement that a Miller hearing be conducted. The majority

goes on to make the broad assertion that all constitutional challenges are governed by waiver

principles. Although I fully agree with the majority that many constitutional challenges may be

waived, I cannot agree with the notion that a plea agreement can act as a waiver to all

constitutional challenges. See, e.g., Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that “the

two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective

assistance of counsel.”) (emphasis added). Moreover, the majority fails to offer any controlling

authority that supports its underlying proposition that a defendant can waive all constitutional




                                                 38
challenges; it does not cite to any case indicating that a defendant can waive a challenge based

on a continuing violation of a substantive rule of constitutional law. 7

       Nor could it. The very nature of a substantive rule of constitutional law precludes such

waiver. Such a violation occurs where “the conduct being penalized is constitutionally immune

from punishment.” United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971).

See also Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (applying the same logic to punishments

that “the Constitution itself deprives the State of the power to impose”). Such a violation

“affects the foundation of the whole proceedings.” Ex parte Siebold, 100 U.S. 371, 376 (1880).

Therefore, “[a] conviction or sentence imposed in violation of a substantive rule is not just

erroneous but contrary to law and, as a result, void.” Montgomery, 577 U.S. at ___, 136 S. Ct. at

731.

               “An unconstitutional law is void, and is as no law.” A penalty
               imposed pursuant to an unconstitutional law is no less void
               because the prisoner’s sentence became final before the law was
               held unconstitutional. There is no grandfather clause that permits
               States to enforce punishments the Constitution forbids. To
               conclude otherwise would undercut the Constitution’s substantive
               guarantees.

Id. (quoting Siebold, 100 U.S. at 376).

       Additionally, the notion that such a requirement can be waived violates our long standing

principle that parties cannot confer power upon the court which it does not rightfully possess.

Cf. Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990) (“Subject matter


       7
          Instead of offering any controlling precedent indicating that a defendant can waive a
substantive rule of constitutional law, the majority relies on language taken from the concurrence
to the summary opinion issued by the Supreme Court. See Jones v. Virginia, ___ U.S. ___, ___,
136 S. Ct. 1358, 1358 (2016) (Thomas, J., concurring). Based on this language, the majority
asserts that “[w]e are thus free to employ traditional principles governing waiver and forfeiture
principle applicable to plea agreements.” Given the fact that the concurrence was written by
Justice Thomas and joined only by Justice Alito, both of whom dissented in both Miller and
Montgomery, I am unpersuaded that this concurrence has any controlling precedential value.


                                                 39
jurisdiction alone cannot be waived or conferred on the court by agreement of the parties.”). As

the Supreme Court established in Montgomery, a trial court lacks the power to impose a sentence

of life without parole upon a juvenile offender without first conducting a Miller hearing. 577

U.S. ___, 136 S. Ct. at 734-35 (describing a Miller hearing as the “procedural requirement

necessary to implement a substantive guarantee”). Therefore, the fact that Jones entered into a

plea agreement and stipulated to a life sentence without parole is irrelevant, as neither action is

sufficient to confer upon a trial court the power to render a sentence which it constitutionally has

no authority to impose. I do not believe that our Commonwealth can continue to enforce a

punishment that the Supreme Court has determined to be prohibited by the Constitution.

                                          IV. Void ab Initio

        The majority takes the position that not all constitutional violations render a

conviction/sentence void ab initio, rather “[c]ertain types of constitutional errors render

convictions ‘void,’ i.e., voidable, and thus subject to collateral attack in federal habeas

proceedings.” While it is true that certain types of constitutional errors only render a sentence or

conviction voidable, it is equally true that other types of constitutional errors render a conviction

or sentence void ab initio. Under this Court’s precedent, as well as the plain language of

Montgomery, the constitutional error at issue in the present case (i.e., a violation of a substantive

rule of constitutional law) clearly falls into the latter category of error, not the former.

                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.”




                                                  40
Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) (quoting Evans v. Smyth-Wythe

Airport Comm’n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)) (footnote omitted) (emphasis

added).

          As previously explained, “[a] conviction or sentence imposed in violation of a

substantive rule is not just erroneous but contrary to law and, as a result, void.” Montgomery,

577 U.S. at ___, 136 S. Ct. at 731. Here, it is unequivocal that “Miller announced a substantive

rule of constitutional law.” Montgomery, 577 U.S. ___, 136 S. Ct. at 734. It is equally clear that

the substantive rule announced in Miller must be given “retroactive effect regardless of when a

conviction became final” because “[s]ubstantive rules . . . set forth categorical constitutional

guarantees that place certain criminal laws and punishments altogether beyond the State’s power

to impose.” Id. at 729 (emphasis added). Indeed, as the Supreme Court has explained, when

applying substantive rules of constitutional law retroactively, the general approach is that “prior

inconsistent judgments or sentences [are] void ab initio.” United States v. Johnson, 457 U.S.
537, 550 (1982) (citing Moore v. Illinois, 408 U.S. 786, 800 (1972) and Ashe v. Swenson, 397
U.S. 436, 437, n. 1 (1970)). Montgomery established that, in the absence of a Miller hearing, a

trial court lacks the power to sentence a juvenile to life without parole. Therefore, in my

opinion, any sentence imposed in a manner inconsistent with the substantive constitutional rule

announced in Miller is void ab initio. 8 See id.



          8
          In my opinion, the majority reads too much into the alternative remedy offered by the
Supreme Court in Montgomery, i.e., that “[a] State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by resentencing them.” 577
U.S. ___, 136 S. Ct. at 736. The fact that the Supreme Court suggested a remedy that some
states “may” be able to take advantage of is not irreconcilable with my contention that a sentence
of life without parole imposed on a juvenile offender is void ab initio in the absence of a Miller
hearing. For example, other states may have mechanisms in place that automatically reduce a
sentence deemed unconstitutional. Regardless, the Supreme Court’s language is merely a
suggestion; it is not binding on the states. Indeed, as the Supreme Court explained:


                                                   41
       Rather than address the constitutional infirmity of Jones’s sentence, the majority focuses

on the trial court’s power to impose the sentence under Virginia law. According to the majority,

a sentence is only void ab initio if it is imposed in violation of the range of punishment

prescribed by Virginia law. While it is well established that “a sentence imposed in violation of

a prescribed statutory range of punishment is void ab initio,” Grafmuller v. Commonwealth, 290
Va. 525, 529, 778 S.E.2d 114, 116 (2015) (quoting Rawls, 278 Va. at 221, 683 S.E.2d at 549),

nothing in our jurisprudence supports the majority’s contention that a statutory violation is the

only basis for rendering a sentence void ab initio. 9

                                        V. Motion to Vacate

       According to the majority, a motion to vacate is not the proper vehicle for Jones’s claim

because there is no precedent under Virginia law for using a motion to vacate to collaterally



               When a new substantive rule of constitutional law is established,
               this Court is careful to limit the scope of any attendant procedural
               requirement to avoid intruding more than necessary upon the
               States’ sovereign administration of their criminal justice systems.
               Fidelity to this important principle of federalism, however, should
               not be construed to demean the substantive character of the federal
               right at issue.

       Id. at ___, 136 S. Ct. at 735 (citation omitted).
       Furthermore, it is worth noting that the suggestion offered by the Supreme Court was a
means by which a state could avoid resentencing. However, assuming parole eligibility was or
could be extended to a juvenile offender convicted of a Class 1 felony (such an eventuality is
highly unlikely, given that parole is abolished in this state), such a sentence modification would,
ultimately, equate to a resentencing.
       9
          It is worth noting that, on at least one occasion, this Court has, acting sua sponte, set
aside a sentence that had been rendered unconstitutional by the Supreme Court in an unrelated
case. In Hodges v. Commonwealth, 213 Va. 316, 317, 191 S.E.2d 794, 795 (1972), the appellant
appealed his death sentence to this Court. After the appellant’s writs of error had been granted,
none of which attacked the constitutionality of the sentence, the Supreme Court decided Furman.
Id. at 320, 191 S.E.2d at 797. Recognizing that the appellant’s death sentence was “nullified” by
the Supreme Court’s decision, this Court remanded the matter “for a new trial on the issue of
punishment.” Id. at 321, 191 S.E.2d at 798.


                                                  42
attack a conviction or sentence based solely on federal constitutional grounds. In the absence of

such precedent, the majority asserts that a motion to vacate “is not a state collateral review

proceeding ‘open to a claim controlled by federal law.’” (Quoting Montgomery, 577 U.S. ___,

136 S. Ct. at 740.) In taking this position, however, the majority ignores a fundamental tenet of

our jurisprudence: a void ab initio order may be attacked in any manner at any time. Singh, 261
Va. at 52, 541 S.E.2d 551.

               The lack of jurisdiction to enter an order . . . 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.”

Id. (quoting Barnes v. American Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925)).

See also Thacker v. Hubard & Appleby, Inc., 122 Va. 379, 386, 94 S.E. 929, 930 (1918)

(“Objection for want of jurisdiction of the subject matter may be taken by demurrer, or motion,

or in any way by which the subject may be brought to the attention of the court.”).

       Indeed, contrary to the majority’s assertion, the Supreme Court’s holding in Montgomery

is not limited to only those collateral proceedings that are “open to a claim controlled by federal

law.” Rather, the Supreme Court explained that an unconstitutional sentence may be attacked in

any type of postconviction proceeding where an unlawful sentence may be challenged.

               A penalty imposed pursuant to an unconstitutional law is no less
               void because the prisoner’s sentence became final before the law
               was held unconstitutional. There is no grandfather clause that
               permits States to enforce punishments the Constitution forbids. To
               conclude otherwise would undercut the Constitution’s substantive
               guarantees. Writing for the Court in United States Coin &
               Currency, Justice Harlan made this point when he declared that
               “[n]o circumstances call more for the invocation of a rule of
               complete retroactivity” than when “the conduct being penalized is
               constitutionally immune from punishment.” 401 U.S. at 724.
               United States Coin & Currency involved a case on direct review;
               yet, for the reasons explained in this opinion, the same principle
               should govern the application of substantive rules on collateral
               review. As Justice Harlan explained, where a State lacked the



                                                 43
               power to proscribe the habeas petitioner’s conduct, “it could not
               constitutionally insist that he remain in jail.” Desist v. United
               States, 394 U.S. 244, 261, n. 2 (1969) (Harlan, J. dissenting).
               If a State may not constitutionally insist that a prisoner remain in
               jail on federal habeas review, it may not constitutionally insist on
               the same result in its own postconviction proceedings. Under the
               Supremacy Clause of the Constitution, state collateral review
               courts have no greater power than federal habeas courts to mandate
               that a prisoner continue to suffer punishment barred by the
               Constitution. If a state collateral proceeding is open to a claim
               controlled by federal law, the state court “has a duty to grant the
               relief that federal law requires.” Yates v. Aiken, 484 U.S. 211, 218
               (1987). Where state collateral review proceedings permit
               prisoners to challenge the lawfulness of their confinement, States
               cannot refuse to give retroactive effect to a substantive
               constitutional right that determines the outcome of that challenge.

Montgomery, 577 U.S. at ___, 136 S. Ct. at 731-32 (emphasis added).

       This Court has recognized that prisoners may challenge the lawfulness of their

confinement using a motion to vacate. See Rawls, 278 Va. at 218, 683 S.E.2d at 547 (holding

that a motion to vacate is the appropriate procedural device to challenge a conviction or sentence

that is void ab initio and that such a conviction or sentence may be corrected at any time). While

it is true that Rawls and its progeny all involved sentences in excess of a statutory limitation, the

underlying rationale must also apply to sentences in violation of a substantive rule of

constitutional law because in both situations, a court is imposing a sentence it is without power

to impose, thereby rendering the sentence void ab initio. Compare Rawls, 278 Va. at 221, 683

S.E.2d at 549 (explaining that the reason such sentences are void ab initio is because “the

character of the judgment was not such as the [C]ourt had the power to render”) with

Montgomery, 577 U.S. ___, 136 S. Ct. at 739 (holding that sentences imposed in violation of a

substantive rule of constitutional law are “altogether beyond the State’s power to impose”).

Indeed, “[a] nullity is a nullity, and out of nothing[,] nothing comes. Ex nihilo nihil fit is one

maxim that admits of no exceptions.” Harrell v. Welstead, 175 S.E. 283, 285 (N.C. 1934).



                                                  44
Accordingly, the underlying rationale of why a sentence is void ab initio cannot and does not

dictate the manner in which such a sentence may be attacked. If a prisoner may use a motion to

vacate to challenge a void ab initio sentence because it was imposed in violation of a statute,

logic dictates that the same procedural device can be used to challenge a void ab initio sentence

imposed in violation of the Constitution.

       Furthermore, contrary to the majority’s statement, there is precedent under Virginia law

for using a motion to vacate to collaterally attack a conviction or sentence based on federal

constitutional grounds. In Loving v. Commonwealth, 206 Va. 924, 925, 147 S.E.2d 78, 79

(1966), just under five years after they had pled guilty, Richard and Mildred Loving used a

motion to vacate to challenge the constitutionality of Virginia’s miscegenation statute.

       The majority dismisses the precedential value of Loving by noting that the propriety of

using a motion to vacate to collaterally attack a conviction or sentence based solely on federal

constitutional grounds was not litigated. In other words, the majority intimates that the Lovings’

claim should have been procedurally defaulted and dismissed by Virginia’s courts before the

matter reached the Supreme Court, because, in Virginia, a motion to vacate cannot be used to

collaterally attack a constitutionally invalid conviction.

       Our ruling in Hirschkop v. Commonwealth, 209 Va. 678, 166 S.E.2d 322 (1969), clearly

indicates otherwise. As the majority notes, in Hirschkop this Court addressed the use of a

motion to vacate in Loving. Id. at 681, 166 S.E.2d at 324. However, the majority overlooks the

fact that, in concluding that the use of a motion to vacate was inappropriate in Hirschkop, the

Court expressly distinguished Loving on several bases. See id. (“[Loving] is not apposite to

[Hirschkop’s] case.”). The most important difference noted by this Court was that “in Loving,

the statute under which the conviction was had was attacked as violative of the Constitutions of




                                                 45
Virginia and of the United States, and the sentences imposed were attacked as invalid.” Id. This

basis for differentiating Loving is very similar to the argument raised by Jones in the present

case.

        The majority’s concerns that “the multitude of substantive and procedural requirements

in habeas corpus law would be permanently sidelined” are unfounded. Jones is not seeking to

subvert our habeas corpus law. Nor is he seeking to use a motion to vacate “as an all-purpose

pleading for collateral review of criminal convictions.” Rather, Jones is simply using a motion

to vacate to apply Virginia law in the manner this Court announced close to a century ago in

Thacker: to bring a void ab initio order to the court’s attention. 122 Va. 379, 386, 94 S.E. 929,

930 (1918) (“Objection for want of jurisdiction of the subject matter may be taken by demurrer,

or motion, or in any way by which the subject may be brought to the attention of the court.”)

(emphasis added). See also Rawls, 278 Va. at 218, 683 S.E.2d at 547 (recognizing that a motion

to vacate is the proper vehicle to challenge a void ab initio sentencing order); Singh, 261 Va. at

52, 541 S.E.2d 551 (“The lack of jurisdiction to enter an order . . . renders the order a complete

nullity [that] may be impeached directly or collaterally by all persons, anywhere, at any time, or

in any manner.”).

        The majority’s analysis concludes that individuals such as the Lovings and Jones have no

avenue for relief in Virginia courts, more than two years after their convictions become final,

even if they can clearly prove that their sentences were imposed in violation of a recently

determined substantive constitutional right. I disagree with this previously unexpressed

restriction on the ability of Virginia state courts to address the retroactive application of new




                                                 46
substantive constitutional rulings, because it is clearly inconsistent with our prior cases. 10 See,

e.g., Loving, 206 Va. at 926, 147 S.E.2d at 80; Hirschkop, 209 Va. at 681, 166 S.E.2d at 324;

Hodges v. Commonwealth, 213 Va. 316, 317, 191 S.E.2d 794, 795 (1972).

                                           VI. Conclusion

       Although I believe that the law in this case is clear, the facts are another matter. 11 Both

parties agree that the record in the present case is incomplete and, therefore, it is unclear whether

Jones received a Miller hearing before he was sentenced. As such, both parties request that the

matter be remanded to the circuit court for further development of the facts surrounding the

imposition of Jones’s sentence of life without parole to determine whether he received the

requisite hearing. In my opinion, this is the best course of action to ensure the constitutionality

of the sentence imposed. If the circuit court determines that Jones did, in fact, receive a Miller

hearing, then his motion to vacate would be properly denied. On the other hand, if it is

determined that Jones did not receive a Miller hearing, his sentence of life in prison without

parole would be void ab initio and he would be entitled to a new sentencing hearing that

complies with Miller and Montgomery. Accordingly, I would vacate the circuit court’s decision

to deny Jones’s motion to vacate and remand the matter for further proceedings to determine

whether Jones was properly sentenced on his capital murder charge.

       10
          The majority asserts that individuals such as the Lovings and Jones may only challenge
their convictions “either via direct appeal timely made or in a habeas corpus proceeding,” even if
the Supreme Court retroactively determines their substantive constitutional rights were violated.
Unstated by the majority is that a direct appeal must be noticed within 30 days of a final
judgment and any habeas action is barred if not pursued within two years of a final judgment.
Thus, according to the majority, any substantive constitutional rights determined to exist more
than two years after conviction may not be successfully vindicated in a Virginia court.
Individuals such as Jones, even if they prove that they were sentenced in violation of their
substantive constitutional rights, can only apply for relief from a federal court.
       11
         Even if Miller and Montgomery did not expressly require the facts surrounding Jones’s
sentencing be reconsidered, I would hold that juveniles in Virginia facing a sentence of life
without parole should be afforded a Miller hearing, for the reasons stated in Montgomery.


                                                  47