Parker v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia

BRENDA PARKER
OPINION BY
v. Record No. 1700-02-1 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 3, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge

Norman Lamson for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.

Brenda Parker appeals her conviction, after a bench trial, for operating a “food

manufacturing plant” without inspection, in violation of Code § 3.1-398.1. Parker designates five

Questions Presented on appeal, and by three separate motions filed in this Court, has raised

additional issues neither presented in her petition for appeal nor raised in the trial court. She asserts

we must consider the issues raised in her various motions because they represent “jurisdictional”

defects in her prosecution. For the reasons that follow, we deny each of Parker’s motions and

affirm her conviction.

I. Background

“On appeal, we review the evidence in the light most favorable to the party prevailing

below, together with all reasonable inferences that may be drawn.” Benton v. Commonwealth, 40

Va. App. 136, 139, 578 S.E.2d 74, 75 (2003).
 In early 2000, Parker owned and operated Sassy Springs Farm in Gloucester County,

Virginia. After learning “information concerning [Parker] making and selling cheese from an

article that was in the paper,” Donna Bonner, a Regional Manager with the Virginia Department of

Agriculture in Dairy Services, called Parker in March of 2000.1 Bonner spoke with Parker

about trying to work with her to inspect her farm, to get it in
compliance, because it was not under inspection. And to be able
for food inspectors and [Bonner] to be able [sic] to come to the
farm, and look at the facilities, and do an inspection and find ways
to help her comply with the Virginia food law.

On March 9, 2000, Bonner sent Parker a letter, enclosing “copies of the Virginia Food Laws, Part

101 – Food Labeling, the Code of Federal Regulation (CFR 21), the Current Good Manufacturing

Practice in Manufacturing, Packing or Holding Human Food and Part 133, Cheeses and Related

Cheese Products from the Code of Federal Regulation (CFR), number 21.”

On September 28, 2000, Jim Morano, a Compliance Officer with the Virginia Department

of Agriculture and Consumer Services (VDACS), John Purcell, an Assistant Attorney General for

the Commonwealth of Virginia, Christopher Thackston, a Field Inspector with VDACS, and David

Lee Dansey, an Environmental Specialist with VDACS, went to Parker’s farm to investigate a “goat

cheese” “product [that] had been offered for sale,” that they “knew [they] didn’t have . . . on

record.” Dansey and Thackston approached Parker’s door, while Morano and Purcell remained in

their vehicle. When Parker answered her door, Thackston showed Parker his credentials and told

her that he wanted to “make an inspection.”2 Parker told him “she was not ready for [him] to make

an inspection at this time.” Thackston then showed Parker the “food laws and tr[ied] to point out

the section of the law that gives [them] the right to come in and make inspection of a facility that is

1
Donna Bonner was formerly known as “Donna Izac.”
2
Dansey testified they specifically told Parker they were there to “make an inspection of
her cheese processing operation.”
-2-
manufacturing products that are being offered for sale for food.” Parker responded that “she was

still not going to let [him] in,” and that “she had heard a lot of bad things about the Department of

Agriculture from Christine, and that [they] were trying to put the little people out of business.”

Parker then requested that they “give her a little time before she allow[ed] [them] in.” Thackston

agreed to “give [Parker] a week to do whatever she felt like she needed to do to get ready.” He told

her they would contact her “later to make another inspection,” and left copies of the “food laws and

regulations” with her. He and the other men then left the premises.

Dansey called Parker “within a week or so.” Parker told Dansey that “she didn’t want to be

inspected at that time. She was sending a letter to [VDACS] and she was upset that [Thackston and

Dansey] came up on her property.”

Parker subsequently sent VDACS a certified letter, dated October 26, 2000, which stated as

follows, in relevant part:

On September 28, 2000 agents [sic] Christopher A. Thackston and
D.L. Dansey from your Department entered the curtilage area of
my home in violation of two (2) No Trespassing signs.

Notice is hereby given that if any such attempt is made to invade
my privacy in the future without a proper warrant supported by
probable cause, that court action may be taken against any and all
persons so involved in the matter.

On November 8, 2000, F.B. Barham, Regional Manager of the VDACS Food Safety

Program, sent Parker a certified letter informing her that her refusal to permit the September 28,

2000 “attempted inspection of [her] goat cheese manufacturing operation,” and her certified letter of

October 26, 2000, “evidenced the refusal to permit entry to [her] manufacturing facility for the

purposes of inspection and taking a sample,” “a serious violation of the Virginia Food Laws.” The

letter further informed Parker that a show cause hearing would be held on November 16, 2000, to

-3-
give her an opportunity to show cause why “this violation” should not be referred to the

Commonwealth’s Attorney.

Parker did not attend the hearing, but responded by letter, dated November 16, 2000, stating

as follows, in pertinent part:

Let it be understood by everyone at your agency that at this time I
am NOT making any goat cheese for sale to the public as I told
Ms. Bonner. Therefore, any inspection of my home kitchen is
unwarranted at this time as would be any meeting with your
compliance officers as there is nothing that I am to be in
compliance with if I am not producing anything.

Further, as I expressed to Ms. Bonner, should I decide at a future
date to manufacture or sell farmstead goat cheese, I would request
from your agency FULL disclosure of any pertinent rules and
regulations as well as any license or permit that you might be able
to issue.

I trust that there will not be any further need for contact by your
office, or I will pursue legal counsel.

(Emphases in original).

Morano, who acted as the hearing officer during the November 16, 2000 show cause

hearing, responded to Parker by letter dated November 17, 2000. In the letter, he informed

Parker that based upon her representation that she was not making goat cheese for sale to the

public, there was no need for the agency to inspect her establishment at the present time.

However, he warned Parker that should she “decide to manufacture goat cheese or any other

food products for sale at a future date,” she should notify VDACS prior to beginning such

manufacturing so that “appropriate arrangements [could] be made for an inspection and

discussion of the Virginia Food Laws and applicable regulations.” He further informed Parker

that “[s]hould future attempts to inspect [her] goat cheese manufacturing facility result in [her]

refusal of entry for the purpose of making an inspection or taking of samples, this matter may be

referred to the Commonwealth’s Attorney.”

-4-
 On August 4, 2001, Stephanie Madison, a Food Safety Specialist with VDACS observed

Parker selling goat cheese and other products at the Irvington Farmer’s Market in Lancaster

County, Virginia. Madison approached Parker and purchased six jars of goat cheese in oil from

her. The jars bore a label that had the words “Sassy Springs Farm” on it, with a Gloucester

address.3 Madison asked Parker how she made the product, and Parker responded “she infused

the product with oil, with whatever herbs or flavorings for that particular product,” and “put the

goat cheese in there.” Parker then offered Madison recipe cards.

Morano subsequently consulted with the Gloucester Commonwealth’s Attorney, who

advised him to obtain summonses for Parker’s violations.4 On October 15, 2001, a Gloucester

County magistrate issued two summonses. The first charged Parker with refusing entry for

purposes of inspection on September 28, 2000, in violation of Code § 3.1-388(e). The second

charged Parker with having operated a “food manufacturing plant without it having been

inspected by the Commissioner,” on or about August 4, 2001, in violation of Code § 3.1-398.1.5

On January 24, 2002, the Commonwealth’s Attorney withdrew the Code § 3.1-388(e) refusal

charge and the general district court judge convicted Parker of violating Code §3.1-398.1.

Parker appealed her conviction to the circuit court.

3
The circuit court judge explicitly found that the label on the jar was “listed as Sassy
Springs. It was made at the farm in Gloucester County.”
4
This information was presented to the trial court in the form of an unchallenged proffer
by the Commonwealth’s Attorney. See Whittaker v. Commonwealth, 217 Va. 966, 969, 234
S.E.2d 79, 81 (1977).
5
The record reflects that, prior to her trial on these charges in general district court,
Parker, acting pro se filed a motion to amend the summons alleging a violation of Code
§ 3.1-398.1. In her motion, Parker contended that the summons “incorrectly” stated the offense
as a Class 1 misdemeanor. Thus, Parker requested the court to amend the summons to indicate
that the offense was “punishable under § 3.1-418,” as an unclassified misdemeanor. The record
contains no ruling on Parker’s motion in this regard.
-5-
 Prior to her circuit court trial on the “manufacturing” charge, Parker filed a pro se motion

to dismiss the charge contending that she was not given prior notice of the contemplated charge,

and an opportunity to “present [her] views,” as required by Code § 3.1-392. After retaining

counsel, Parker filed “supplemental grounds” in support of the motion to dismiss, alleging that,

because the Commissioner of VDACS himself had not caused the charge to be instituted, the

Commonwealth had again violated Code § 3.1-392. Accordingly, Parker argued the

Commonwealth had violated her right to “state and federal due process of law” and “caused the

general district court not to have jurisdiction” over the matter.

Prior to her circuit court trial, Parker argued in support of her motion to dismiss. As to

Parker’s first contention, concerning notice, the court agreed to take the matter under advisement

and asked the parties to “make that a part of the case.” In conjunction with her second argument,

concerning the Commissioner’s institution of the charge, Parker argued “there is one other

matter, that you have to read [Code §] 3.1-398.1 with [Code §] 3.1-418 . . . .” “[Code §] 3.1-418

says that if you don’t comply upon demand, then you’re guilty of a misdemeanor and you get up

to a $100 fine and up to 100 days in jail. So there is also an issue – our position was there was

no showing of a demand that she allow inspection by the Commissioner.” The Commonwealth

replied, “She’s not charged under that.” The court then stated, “She’s not charged with that,”

and subsequently held that Parker’s reading of the statute and the term “Commissioner” was too

narrow. Pointing out that even if it was not, the requirement was not jurisdictional, and the court

overruled Parker’s motion.

At the close of the Commonwealth’s evidence, Parker made a “motion to strike and a

motion to dismiss” contending again that VDACS failed to provide Parker with notice of the

contemplated charge for violating § Code 3.1-398.1, operating a food manufacturing plant, and

an opportunity for a hearing, as required by Code § 3.1-392, and that, pursuant to Code
-6-
§ 3.1-392, it was the Commissioner himself who must refer the charge to the Commonwealth’s

Attorney. Parker argued that the failure to comply with these requirements deprived the general

district court and, thus, the circuit court, of jurisdiction in the matter. In the alternative, Parker

argued that the Commonwealth had failed to establish that she operated a “food manufacturing

plant,” as defined by Code § 3.1-398.1, contending that her farm and home kitchen did not fall

within that definition and further contending that the Commonwealth had failed to establish

where the goat cheese, which was offered for sale in Lancaster, was actually made. In

conjunction with these arguments, Parker argued:

So, I submit that viewing the evidence in the light most favorable
to the Commonwealth, they haven’t met those elements. I
reiterate, I still contend under [Code § 3.1-]418, which says that
you have got to comply with the provisions on demand, if you don’t
upon demand, you’re guilty. When the statute says it’s got to be
inspected by the commissioner, it means the commissioner. . . . And
the demand never was that the commissioner inspect, but that
strangers, who came through no trespassing signs without any
notice be permitted to make the inspection.

(Emphasis added).

Finding that: 1) the evidence was sufficient to prove the cheese was made at Sassy

Springs Farm; 2) that the farm constituted a “food manufacturing plant” as defined in the statute;

3) that Parker was on notice of the charges contemplated before the November 16, 2000 hearing;

4) that Parker had specifically waived, by her letter of November 16, 2000, the need for further

notice, thus, Parker’s rights were not violated and the court had jurisdiction over the matter, the

court denied Parker’s motions.

Parker presented no evidence on her behalf, but renewed her “motion to strike and the

points that [she] made on that” in her closing argument. The circuit court subsequently found

-7-
Parker guilty and sentenced her to pay a fine of $100, and serve 30 days in jail, all of which was

suspended upon certain conditions.6

II. Analysis

On appeal, Parker raised, and this Court granted an appeal with respect to five Questions

Presented. Parker contends that the trial court erred in refusing to grant her motions to dismiss

and strike, because 1) the Commonwealth failed to prove that she was provided with notice, and

an opportunity to be heard, “with regard to a contemplated criminal charge” under Code

§ 3.1-398.1; 2) the Commonwealth failed to prove that the Commissioner of VDACS personally

reported the alleged violation to the Commonwealth’s Attorney; 3) the criminal proceedings, for

these reasons, violated her right of due process, and the general district court and circuit court

were without jurisdiction to conduct the proceedings; 4) the Commonwealth failed to produce

sufficient evidence to establish that Parker operated a “food manufacturing plant,” within the

meaning of Code § 3.1-398.1; and 5) the Commonwealth failed to prove that the Commissioner

of VDACS personally “demanded” inspection of Parker’s premises, thus Parker could not be

found guilty of a misdemeanor pursuant to Code §§ 3.1-398.1 and 3.1-418.

Subsequent to filing her briefs on appeal, Parker filed three separate motions with this

Court. Parker filed additional briefs with two of these motions, one in excess of 30 pages, and

another in excess of 25 pages, without requesting leave of Court. See Rule 5A:19. Parker raises

several additional issues in these motions, issues that were not raised in Parker’s petition for

appeal, nor granted by this Court as viable questions presented. See Rule 5A:12.

6
The record also reflects that during sentencing, the trial court asked the Commonwealth’s
Attorney “What is the maximum fine? . . . Where is it?” The Commonwealth’s Attorney replied
“$100. . . . 418.”
-8-
 In the first motion and supporting brief, entitled “Appellant’s Objection to a Panel

Hearing The Case Initially,” Parker requested this Court to take the case directly en banc and to

dismiss for lack of subject matter jurisdiction. Parker argued as follows: 1) that Code

§ 3.1-398.1 is facially unconstitutional because it violates the Fourth Amendment; 2) that such a

claim is not barred pursuant to Rule 5A:18 as it is “jurisdictional”; 3) that this Court should

overrule McClellan v. Commonwealth, 39 Va. App. 759, 576 S.E.2d 785 (2003), “as in flagrant

error”; and, 4) that McClellan should not be retroactively applied. The record reflects that Parker

raises each of these issues for the first time on appeal.

In Parker’s second motion and supporting brief, entitled “Appellant’s Second Motion to

Dismiss For Lack of Subject Matter Jurisdiction, This Time on Grounds of [sic] She Was

Charged With and Convicted of a Non-Offense,” Parker argued that Code § 3.1-398.1 creates

only a civil offense, not a criminal offense. Contending that such a claim is “jurisdictional,”

Parker again claims that she may raise this issue for the first time on appeal. In the alternative,

Parker requests that this Court consider her contention under the “ends of justice” or “good

cause” exceptions to Rule 5A:18. The record similarly reflects that Parker raises these issues for

the first time on appeal.

In Parker’s final motion, filed after oral argument, entitled “Appellant’s Motion to

Declare The Judgment in McClellan v. Com., 39 Va. App. 759, 576 S.E.2d 785 (2003) Void For

Lack of Jurisdiction,” Parker seeks to collaterally attack this Court’s decision in McClellan,

arguing that the decision is void because the

charge and purported conviction [in that case] are of a non-offense,
and the conviction does not contain “findings” of a criminal
offense as required by Va. Code sec. 19.2-307 and Rule Form 10,
[sic] said judgment is also void because (1) it bears no name of a
judge, (2) nor is there a date of entry and (3) a signature of a judge

-9-
 as required by Va. Code sec. 19.2-307 and Va. Sup. Ct. Rule
3A:22 (Rule 3A:1), and Form 10.

Once again, the record reflects that Parker raises these issues for the first time on appeal.

A.

Because Parker’s motions raise issues she contends are “jurisdictional,” we address her

arguments relating to these motions before reaching the merits of her appeal. In beginning our

analysis, we admonish counsel that “[o]n appeal, we will consider ‘[o]nly those arguments

presented in the petition for appeal and granted by this Court . . . .’” Megel v. Commonwealth,

37 Va. App. 676, 679, 561 S.E.2d 21, 22 (2002) (quoting Alexander v. Commonwealth, 28

Va. App. 771, 776, 508 S.E.2d 912, 914, aff’d on reh’g en banc, 30 Va. App. 152, 515 S.E.2d

808 (1999), rev’d on other grounds by Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d

567 (2000)); see also Cruz v. Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407

n.1 (1991). “Rule 5A:12(c) specifically provides that ‘[o]nly questions presented in the petition

for appeal will be noticed by the Court of Appeals.’” Id. (quoting Rule 5A:12(c)); see also Rule

5A:20(c). Nevertheless, as Parker’s counsel points out:

Subject matter jurisdiction is granted by constitution or statute.
Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890,
894 (1947). It [thus,] cannot be waived and any judgment
rendered without it is void ab initio. Moreover, lack of subject
matter jurisdiction “may be raised at any time, in any manner,
before any court, or by the court itself.” Id., 43 S.E.2d at 893.

David Moore v. Commonwealth, 259 Va. 431, 437, 527 S.E.2d 406, 509 (2000), overruled on

other grounds by Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73, 77 (2001). Thus, we only

address those contentions that Parker raises as “jurisdictional.”7

7
Prior to oral argument, we denied Parker’s request to take this matter directly en banc.
- 10 -
 Parker first argues that “the statutes which define the offense and affix the penalty against

[Parker], . . . Code [§§ 3.1-398.1 and 3.1-418]” are in violation of the Fourth Amendment.

Specifically, Parker contends that Code § “3.1-398.1 violates the Fourth Amendment on its

face.” Parker further contends her argument of facial constitutionality is “jurisdictional” and can

be raised at any time. We have recently recognized, however, that a “jurisdictional” claim,

which would render a judgment void, presupposes a matter of subject matter jurisdiction.

Edwards v. Commonwealth, 41 Va. App. 752, 589 S.E.2d 444 (2003). An issue of subject

matter jurisdiction, as distinguished from an issue of the exercise of subject matter jurisdiction,

concerns the “‘power of a court to adjudicate a specified class of cases.’” Nelson, 262 Va. at

281, 552 S.E.2d at 75 (quoting Moore, 259 Va. at 437, 527 S.E.2d at 409); see also Moore, 259

Va. at 437, 527 S.E.2d at 409 (“emphasizing the necessary distinction to be drawn . . . between

the power of a court to adjudicate a specified class of cases, commonly known as ‘subject matter

jurisdiction,’ and the authority of a court to exercise that power in a particular case”).

There is no dispute here that the general district court has exclusive original jurisdiction

over misdemeanor criminal offenses. Code § 16.1-123.1. There is likewise no dispute that the

circuit court had de novo appellate jurisdiction. Code §§ 16.1-132 and 17.1-513. Moreover, in

her motions and supporting briefs on appeal, Parker does not contend that the offense occurred

outside the Commonwealth of Virginia, or that the court otherwise lacked jurisdiction over her

person.8 See Edwards, 41 Va. App. at 767, 589 S.E.2d at 451. Thus, Parker’s argument in this

regard does not rise to the level of a subject matter jurisdictional claim, rendering her conviction

void. Id.

8
We note that Parker raised no issue concerning “territorial jurisdiction” in her motions
and supporting briefs filed after her briefs on appeal. However, in her briefs on appeal, Parker
did raise such an issue. See below for our discussion of the merits of that issue.
- 11 -
 Parker’s reliance upon Pine v. Commonwealth, 121 Va. 812, 93 S.E. 652 (1917), does

not change our decision. In Pine, the Supreme Court of Virginia held:

Every indictment is based upon the existence of a valid law
annexing a penalty to the offense charged. If that law is
unconstitutional, it is void. It is no law at all, and there is no
penalty to inflict. So soon, therefore, as this fact is brought to the
attention of the court in any way, whether by demurrer, pleas,
motion, or otherwise, the case is at once dismissed, as there is no
offense to be punished. It need not be specially pleaded. This rule
applies to the appellate court as well as the trial court, although the
point is made in the appellate court for the first time. Adkins v.
City of Richmond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583, 81
Am. St. Rep. 705, and cases cited.

121 Va. at 820-21, 93 S.E. at 654. Although Pine has not been expressly overruled and

continues to be valid precedent, in Jones v. Commonwealth, 230 Va. 14, 334 S.E.2d 536 (1985),

the Supreme Court of Virginia explicitly refused to consider certain arguments of the

constitutional facial validity of an Arlington County code section, as they were not properly

preserved. The Court stated as follows in a footnote:

In this appeal, we consider only Jones’ arguments based upon the
Fourth Amendment. Jones also argues on appeal that § 17-13(c) of
the Arlington County Code violates his First Amendment “right to
remain silent” and his Fifth Amendment right against
self-incrimination, but he did not raise these points in the trial
court, and we will not consider them here. Rule 5:25. Neither will
we consider any contention with respect to § 17-13(c) which Jones
may have made in the trial court but has not pursued here. Rule
5:25.

Jones, 230 Va. at 18 n.1, 334 S.E.2d at 539 n.1; see also Bradshaw v. Commonwealth, 228 Va.

484, 492 n.2, 323 S.E.2d 567, 569 n.2 (1984) (refusing to consider challenges of facial

constitutionality based upon Code § 18.2-31(g) because they were not raised at trial). Given the

Supreme Court of Virginia’s decisions in these later cases, as well as its decisions in David

Moore and Nelson, specifically distinguishing between a court’s possession of subject matter

jurisdiction and its ability to exercise such jurisdiction (making convictions under the latter

- 12 -
claims merely voidable, versus void), we do not understand Pine to elevate Parker’s newly

coined argument to the level of a jurisdictional issue, rendering her conviction void.

Moreover, the record here demonstrates that Parker lacks standing to raise a claim of

facial constitutional validity. Code § 3.1-398.1 provides as follows:

Inspections required to operate food establishment. — No person
shall operate a food manufacturing plant, food storage warehouse,
or retail food store until it has been inspected by the
Commissioner. This section shall not apply to food manufacturing
plants operating under a grant of inspection from the Bureau of
Meat and Poultry Inspection or a permit from the Bureau of Dairy
Services of the Virginia Department of Agriculture and Consumer
Services and Grade A fluid milk manufacturing plants and
shellfish and crustacea processing plants operating under a permit
from the Virginia Department of Health. This section shall also
not apply to nonprofit organizations holding one-day food sales.

Code § 3.1-418 states:

Punishment for failure to comply with requirements of title. —
Any manufacturer, dealer or person who refuses to comply upon
demand with the requirements of Chapters 20 (§ 3.1-361 et seq.),
21 (§ 3.1-420 et seq.), and 30 (§ 3.1-867 et seq.) of this title or who
shall impede, obstruct, hinder or otherwise prevent or attempt to
prevent any chemist inspector or other person in the performance
of his duty in connection with such chapters, shall be guilty of a
misdemeanor, and, unless otherwise specified, upon conviction be
fined not less than $10 nor more than $100, or be imprisoned not
more than 100 days, or both, in the discretion of the court; and
such fines, less the legal costs, shall be paid into the state treasury.

Although Parker claims that these statutes are unconstitutional “on [their] face because [they]

coerce[] submission to warrantless searches under threat of criminal prosecution where the

inspector has unbridled discretion as to the places to be searched, and the time, manner and scope

of the search,” the record reflects that Parker was never subjected to such an inspection or

“search.” Indeed, the charge brought against Parker for improperly refusing to submit to such a

“search,” in violation of Code § 3.1-388, was nol prossed by the Commonwealth. Parker was

proceeded against and convicted only in accordance with Code §§ 3.1-398.1 and 3.1-418 – each

- 13 -
of which, as applied to Parker, merely required Parker not to operate her food manufacturing

establishment without an appropriate inspection.

“As a general rule, where a statute is constitutional as applied to a litigant, the litigant has

no standing to challenge the statute on the ground that it may be unconstitutional on its face, that

is, as applied to a third person in a hypothetical situation.” Esper Company v. Commonwealth,

222 Va. 595, 597, 283 S.E.2d 185, 186 (1981). Thus, it is clear that, on this record, Parker lacks

standing to challenge the constitutional facial validity of these statutes.

We further find no merit in Parker’s contention that Code § 3.1-398.1 is a civil versus

criminal offense, thereby depriving the general district court, and thus the circuit court on de

novo review, of subject matter jurisdiction. Parker concedes that Code § 3.1-398.1 falls within

the ambit of Code § 3.1-418, providing the penalty for failure to comply, upon demand, with the

requirements of “Chapters 20 (§ 3.1-361 et seq.), 21 (§ 3.1-420 et seq.), and 30 (§ 3.1-867 et

seq.) of this title.” Indeed, “[a]ll statutes on the same subject matter, i.e., those standing in pari

materia, must be considered together and harmonized if possible.” Dalton v. Commonwealth, 29

Va. App. 316, 336, 512 S.E.2d 142, 152 (1999), rev’d on other grounds by Commonwealth v.

Dalton, 259 Va. 249, 524 S.E.2d 860 (2000). Moreover, “[i]n construing statutes, courts are

charged with ascertaining and giving effect to the intent of the legislature.” Crown Cent.

Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997). “[A] fundamental rule of

statutory construction requires that courts view the entire body of legislation and the statutory

scheme to determine the ‘true intention of each part.’” Virginia Real Estate Bd. v. Clay, 9

Va. App. 152, 157, 384 S.E.2d 622, 625 (1989) (quoting McDaniel v. Commonwealth, 199 Va.

287, 292, 99 S.E.2d 623, 627 (1957)). In light of this, we have little doubt that the legislature

intended, by enacting Code § 3.1-418, to make a failure to comply with Code § 3.1-398.1 a

criminal offense. Code § 3.1-398.1 is clearly a criminal statute when read in pari materia with
- 14 -
Code § 3.1-418. Thus, Parker’s argument in this regard, once again, does not rise to the level of

a subject matter jurisdictional claim, rendering her conviction void. See Edwards, 41 Va. App. at

767, 589 S.E.2d at 451.

As stated above, although the record reflects that Parker, acting pro se, filed a motion

before the general district court seeking to amend the summons to include Code § 3.1-418,

Parker contended only that the summons “incorrectly” stated the offense as a Class 1

misdemeanor and requested the court to amend the summons to indicate that the offense was

“punishable under § 3.1-418,” as an unclassified misdemeanor. Parker did not contend then, as

she does now on appeal, that the offense charged was not “criminal” without an accompanying

reference in the summons to Code § 3.1-418. Furthermore, the record contains no ruling on

Parker’s motion, although no amendment is apparent on the summons.

In addition, contrary to the statement in the dissent, the record reflects that Parker never

claimed below that the summons failed to state a criminal offense. Instead, Parker argued:

[T]here is one other matter, that you have to read 3.1-398.1 with
3.1-418 [sic]. . . . 3.1-418 says that if you don’t comply upon
demand, then you’re guilty of a misdemeanor . . . . So there is also
an issue – our position was there was [sic] no showing of a demand
that she allow inspection by the Commissioner. . . . It has to be the
Commissioner himself that does the inspection.

(Emphases added). Thus, it is clear that Parker raises this specific claim – that Code § 3.1-398.1

creates a civil versus criminal offense – for the first time on appeal. Defects in the charging

instrument are ordinarily waived unless raised before trial. See Rule 3:A9(b)(1). Accordingly,

and because we have found that this claim is not “jurisdictional” in nature, we refuse to consider

it on the merits because the record demonstrates that Parker failed to properly preserve the claim

for purposes of appeal. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

- 15 -
S.E.2d 484, 489 (1998) (“The Court of Appeals will not consider an argument on appeal which

was not presented to the trial court.”).

Furthermore, we find no reason on this record to invoke an exception to Rule 5A:18.

Indeed, this is not a case - as suggested by the dissent - where a defendant was convicted of a

“non-existent” offense.

Under Rule 5A:18 we do not notice the trial errors for which no
timely objection was made except in extraordinary situations when
necessary to enable us to attain the ends of justice. The laudatory
purpose behind Rule 5A:18, and its equivalent Supreme Court
Rule 5:25, frequently referred to as the contemporaneous objection
rules, is to require that objections be promptly brought to the
attention of the trial court with sufficient specificity that the
alleged error can be dealt with and timely addressed and corrected
when necessary. The rules promote orderly and efficient justice
and are to be strictly enforced except where the error has resulted
in manifest injustice. Errors can usually be corrected in the trial
court, particularly in a bench trial, without the necessity of appeal.
Because our function is to review the rulings of the trial court,
rather than superintend the proceedings, we will notice error for
which there has been no timely objection only when necessary to
satisfy the ends of justice.

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989) (citation omitted).

It is true that “[a] summons must describe the offense charged. Rule 3A:4(b). This

description must comply with Rule 3A:6(a), which provides that an indictment must give an

accused notice of the nature and character of the offense charged against him.” Williams v.

Commonwealth, 5 Va. App. 514, 516, 365 S.E.2d 340, 341 (1988). It is also true that, in this

case, the summons failed to meet this test by its failure to reference Code § 3.1-418. Indeed, it

charged only an offense under Code § 3.1-398.1 – a statute that, standing alone, does not create a

criminal offense. See Cook v. Commonwealth, 20 Va. App. 510, 513, 458 S.E.2d 317, 319

(1995) (“[A] crime is made up of two parts, forbidden conduct and a prescribed penalty.”).

- 16 -
 However, it is equally true that both parties understood Parker to be charged with a

criminal offense pursuant to both Code §§ 3.1-398.1 and 3.1-418. Although, as the dissent

accurately points out, the Commonwealth stated during argument on Parker’s motion to dismiss

that she was not charged with a violation of Code § 3.1-418 and the judge responded, “she’s not

charged with that,” Parker continued to argue the Commonwealth’s failure to comply with Code

§ 3.1-418 throughout the trial. Moreover, Parker was explicitly sentenced pursuant to “[Code

§ 3.1-]418.” Perhaps more significantly, Parker continues to argue on appeal that the

Commonwealth “fail[ed] to prove a ‘demand’ under [Code §] 3.1-418.” Thus, the record belies

the dissent’s assertion that the trial court rendered a formal “ruling” that Parker was not charged

with an offense pursuant to Code § 3.1-418. Indeed, the trial court’s ruling on Parker’s motion to

dismiss was not based upon the application or non-application of Code § 3.1-418.

In addition (as discussed more fully below in connection with our holding on the merits

of the issues presented), unlike the cases relied upon by the dissent, Parker’s conviction pursuant

to both subsections was fully supported by the evidence and, thus, did not allow the trial court to

convict Parker of otherwise innocent conduct. Cf. Bundy v. Commonwealth, 220 Va. 485, 488,

259 S.E.2d 826, 828 (1979) (reversing a conviction where the “jury was given free rein either to

convict the defendant of [a] no-longer existing offense . . . or to convict him of” an existing

offense, and the evidence supported only the conviction under the non-existent offense); Ball v.

Commonwealth, 221 Va. 754, 758-59, 273 S.E.2d 790, 793 (1981) (reversing a conviction for

capital murder where the defendant was “convicted of a crime of which under the evidence he

could not properly be found guilty” (emphasis added)); Jimenez v. Commonwealth, 241 Va. 244,

251, 402 S.E.2d 678, 681 (1991) (reversing a conviction because the judge’s “instruction omitted

some essential elements of the offense” and “no evidence was produced relating to those

elements” (emphasis added)).
- 17 -
 Accordingly, we do not find this case to represent an “extraordinary situation” under

which we must invoke an exception to Rule 5A:18 to enable us to attain the ends of justice.

Brown, 8 Va. App. at 131, 380 S.E.2d at 10; Phoung v. Commonwealth, 15 Va. App. 457, 463,

424 S.E.2d 712, 716 (1992).

Parker’s final contention regarding the validity of this Court’s judgment in McClellan v.

Commonwealth, 39 Va. App. 759, 576 S.E.2d 785 (2003), must also fail. Even assuming,

although we do not here decide, that Parker has some standing to collaterally attack this Court’s

decision in McClellan, it is clear that Parker’s claim does not equate to a subject matter

jurisdictional argument rendering the judgment void. Indeed, Parker raises no issue concerning

this Court’s subject matter jurisdiction over the class of the case reviewed in McClellan, but only

argues that this Court lacked the authority to exercise jurisdiction in that particular case. Such a

claim, if true, would merely render the judgment voidable, and not void for want of subject

matter jurisdiction. See Nelson, 262 Va. at 281, 285, 552 S.E.2d at 75, 78.9 Based upon the

above discussion, we deny each of Parker’s respective motions.

9
In addition, we note that our decision in McClellan reflects that Parker’s counsel also
represented McClellan in her appeal before this Court. See McClellan, 39 Va. App. at 759, 576
S.E.2d at 785. Nevertheless, in that case, McClellan’s counsel failed to raise the issues now
raised by Parker in an attempt to collaterally attack that judgment. Thus, even assuming
(although we do not have the record from that case before us on this unrelated appeal) that the
circuit court judgment in that case and, thus, this Court’s judgment, were “voidable” because of
some procedural or technical error, neither the circuit court, nor this Court were “bound to
declare void what theretofore had been merely voidable.” Nelson, 262 Va. at 285, 552 S.E.2d at
78. Indeed, Parker’s motion in this regard – in fact, all of her motions filed after her initial briefs
on appeal – appear to be repeated attempts to correct her counsel’s past oversights by raising
entirely new issues on appeal. While the temptation to cast such omissions or oversights on the
part of counsel in the light of “jurisdictional” defects, and thus, to seek an unlimited and
unrestrained avenue of review, may be irresistible - we admonish counsel that fairness to the
opposing party and the orderly consideration and disposition of the cases before us mandate
adherence to the procedural rules of this Court. This includes requesting leave of Court to
expand the issues presented, to exceed the page limit for briefing, or to otherwise deviate from
the Rules of Court. See Rules 5A:12; 5A:19.
- 18 -
 B.

Turning to the merits of Parker’s Questions Presented on appeal, Code § 3.1-392 states as

follows:

It shall be the duty of each attorney for the Commonwealth, to
whom the Commissioner reports any violation of this article, to
cause appropriate proceedings to be instituted in the proper courts
without delay and to be prosecuted in the manner required by law.
Before any violation of this article is reported to any such attorney
for the institution of a criminal proceeding, the person against
whom such proceeding is contemplated shall be given appropriate
notice and an opportunity to present his views before the
Commissioner or his designated agent, either orally or in writing,
in person or by attorney, with regard to such contemplated
proceeding.

(Emphasis added).

Parker contends that because the only notice she received, the November 2000 notice,

alleged a refusal to permit entry for inspection (a violation under Code § 3.1-388) VDACS could

not report a violation of Code § 3.1-398.1 without first providing her with yet another notice and

opportunity to be heard. Doing so, Parker argues, effectively deprived her of due process and

thereby deprived the court of jurisdiction to hear the matter. We disagree.

The Due Process Clauses of the Federal and Virginia Constitutions provide that no

person shall be deprived of life, liberty, or property without due process of law. U.S. Const.

amend. XIV, § 1; Va. Const. art. I, § 11. Thus, “procedural due process guarantees a litigant the

right to reasonable notice and a meaningful opportunity to be heard.” Etheridge v. Medical

Center Hospitals, 237 Va. 87, 97, 376 S.E.2d 525, 530 (1989). This particular guarantee does

not create a constitutionally protected interest; instead, the purpose of the guarantee is to provide

procedural safeguards against a government’s arbitrary deprivation of certain interests. Id.

Accordingly, the rule “guarantees that a person shall have reasonable notice and opportunity to

- 19 -
be heard before any binding order can be made affecting the person’s rights to liberty or

property.” McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759, 763 (1995) (emphasis added).

In the present case, Parker has pointed to no liberty or property interest of which she was

deprived by VDACS in merely reporting an allegation of criminal activity to the

Commonwealth’s Attorney. Indeed, Parker does not allege that VDACS entered any “binding

order” which affected her rights in any manner. Moreover, Parker does not contend that she was

denied due process with regard to the criminal proceedings which took place below. The record

demonstrates that Parker was present during trial, was allowed to testify in her own behalf, and

to cross-examine the Commonwealth’s witnesses. Thus, we find no error in the trial court’s

determination that the facts at issue reflected no deprivation of due process to Parker.

We further find no error in the determination of the trial court that VDACS complied

with the charge of Code § 3.1-392. In fact, the plain language of Code § 3.1-392 requires

VDACS to do nothing more than notify Parker of “any violation” of the statute, and provide her

with an opportunity to be heard, prior to reporting the violation to the Commonwealth’s

Attorney. “Notice” of an alleged criminal violation generally contemplates sufficient

information to give the accused notice of the nature and character of the accusations against him

or her, so that he or she may adequately prepare to defend the allegations. Griffin v.

Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991). Such “notice” was clearly

provided here.

Code § 3.1-398.1 provides that it is a violation of the Virginia food and beverage laws for

any person to “operate a food manufacturing plant, food storage warehouse, or retail food store until

it has been inspected by the Commissioner.” In early 2000, VDACS began contacting Parker

“about trying to work with her to inspect her farm, to get it in compliance, because it was not under

inspection.” Agents from VDACS even mailed Parker information concerning the
- 20 -
Commonwealth’s food and beverage laws and appropriate compliance. Several months after doing

so, agents attempted to inspect Parker’s establishment, specifically informing her that the

Commonwealth must have the opportunity to inspect any establishment “manufacturing products

that are being offered for sale for food.” After again providing Parker with information concerning

compliance with food and beverage laws, VDACS notified Parker of its intent to report her

violations to the Commonwealth’s Attorney. In particular, in its letter to Parker of September 8,

2000, an agent of VDACS notified her that refusal to permit “attempted inspection of [her] goat

cheese manufacturing operation” represented “a serious violation of the Virginia Food Laws.”

Parker did not attend the hearing provided by VDACS, but responded by letter, indicating that she

was no longer making “goat cheese for sale,” but that she would notify VDACS if she intended to

do so in the future. VDACS did not pursue charges against Parker at that time, but did so only after

Parker was observed selling her products, without having notified VDACS of her operation.

Although the main thrust of VDACS’s November 8, 2000 letter to Parker was her refusal to

permit an inspection, a violation of Code § 3.1-388, both the letter and VDACS’s continued

communications with Parker sufficiently put her on notice that her “operation” of such a plant,

without an inspection, was a violation of the law. VDACS provided Parker with an opportunity to

present her views as to this ongoing communication, and Parker did so by letter. There was simply

no requirement, under the statute, that VDACS notify Parker of these potential violations yet again,

when she was observed engaging in the exact same questioned activity, less than one year after the

initial notice and hearing had been provided.

C.

We further find no merit in Parker’s contention that it must be the Commissioner of

VDACS who personally reports such alleged violations to the Commonwealth’s Attorney.

- 21 -
Although Code § 3.1-392 states that “[i]t shall be the duty of each attorney for the Commonwealth,

to whom the Commissioner reports any violation of this article, to cause appropriate proceedings to

be instituted . . . ,” the statute does not explicitly require the Commissioner to personally report such

violations, and does not bar the Commissioner from complying with this duty through designated

agents. Code § 3.1-392; see also Code § 2.2-604.

Moreover, several code sections throughout Chapter 20 indicate that the Commissioner may

carry out his or her duties through designated agents.10 Indeed, Code § 3.1-404 provides that:

It shall be the duty of the Commissioner to make a complaint
against the manufacturer or vender of any such food or drink or
dairy products as are adulterated, impure or unwholesome, in
contravention of the laws of this Commonwealth, and furnish all
evidence thereof to obtain a conviction of the offense charged.
The Commissioner, or any person appointed by him for that
purpose, may make complaint and cause proceedings to be
commenced against any person for enforcement of the laws
relative to adulteration, impure or unwholesome food or drink, and
in such cases he shall not be obliged to furnish security for costs.

(Emphasis added.); see also Code § 2.2-604.

In the construction of statutes, the courts have but one object, to
which all rules of construction are subservient, and that is to
ascertain the will of the legislature, the true intent and meaning of
the statute, which are to be gathered by giving to all the words used
their plain meaning, and construing all statutes in pari materia in
such manner as to reconcile, if possible, any discordant feature
which may exist, and make the body of the laws harmonious and
just in their operation.

Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914); see also Waller v. Commonwealth, 192

Va. 83, 89, 63 S.E.2d 713, 716 (1951); The Covington Virginian, Inc. v. Woods, 182 Va. 538,

548-49, 29 S.E.2d 406, 411 (1944).

10
See e.g. Code §§ 3.1-383, 3.1-385, 3.1-385.6, 3.1-391, 3.1-399, 3.1-406, 3.1-408,
3.1-411, 3.1-414.
- 22 -
 Considering these statutes in pari materia, it is clear that the legislature intended the

Commissioner to designate agents for the purpose of aiding him or her in carrying out the duties

set forth in the Virginia food and beverage laws. To hold otherwise would render the statute

absurd, creating a situation where the Commissioner must act personally in many instances, with

no ability to delegate authority and responsibility in carrying out his or her legislative charge.

See Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992) (“The plain,

obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained

construction; a statute should never be construed so that it leads to absurd results.”).

Accordingly, we find no error in the trial court’s decision to deny Parker’s motions to

dismiss and strike in this regard. Further, because we find no error in the judgment of the trial

court that VDACS complied with the relevant statutes, we do not address Parker’s claim that the

circuit court lacked jurisdiction on these grounds.

D.

Turning to Parker’s next contention, we note first that this Court has previously held that

a home kitchen, similar to Parker’s, may constitute a “food manufacturing plant” within the

context of Code § 3.1-398.1. McClellan, 39 Va. App. at 767, 576 S.E.2d at 785. Indeed, since

Parker filed her briefs on appeal, the Supreme Court of Virginia has refused the petition for

appeal in that case. We thus need not address further her argument that her home could not

constitute a “food manufacturing plant” within the meaning of the statute.

We find that Parker’s next allegation, that the Commonwealth failed to prove she actually

manufactured the cheese, versus simply selling it, is baseless. The evidence below clearly

established that Parker sold the cheese, that she told the VDACS agent that she made the product

- 23 -
by “infusing” the cheese with oil, and that the label on the product bore an address for the Sassy

Springs Farm in Gloucester.

As we stated in McClellan, “manufacturing requires ‘transformation of a raw material

into an article of substantially different character.’” Id. at 766, 576 S.E.2d at 788 (quoting

Commonwealth v. Orange-Madison Coop., 220 Va. 655, 658, 261 S.E.2d 532, 534 (1980)); see

also Green v. Commonwealth, 266 Va. 81, 104, 580 S.E.2d 834, 847 (2003) (“When reviewing

the sufficiency of evidence on a question of fact, we consider the evidence in the light most

favorable to the prevailing party below, in this case the Commonwealth, and accord that party’s

evidence all reasonable inferences.”); see also Shackleford v. Commonwealth, 262 Va. 196, 209,

547 S.E.2d 899, 906 (2001) (“When reviewing the sufficiency of the evidence after a conviction,

we consider that evidence in the light most favorable to the Commonwealth, and we affirm the

conviction unless it is plainly wrong or without evidence to support it.”). We find the evidence

here sufficient to support the fact finder’s determination that Parker “made” the cheese product

or “manufactured” it.

For this same reason, Parker’s contentions (raised in these specific terms for the first time

on appeal) that the trial court lacked “territorial jurisdiction” because the Commonwealth failed

to prove the product was manufactured in Virginia and that venue was improper are likewise

without merit. We thus find no error in the trial court’s refusal to grant her motions to dismiss

and strike in this regard. See Gordon v. Commonwealth, 38 Va. App. 818, 822-23, 568 S.E.2d

452, 454 (2002) (“[W]here the defendant claims that the evidence failed to prove that the offense

occurred in the Commonwealth, we have found the claim is not subject to waiver.”). Indeed,

Parker explicitly informed VDACS’s agent that she made the products and the products admitted

as exhibits bore a label showing the Sassy Springs Farm’s address in Gloucester – the same place

where Parker resided and manufactured such products less than one year earlier. See Code
- 24 -
§ 19.2-244 (“Except as otherwise provided by law, the prosecution of a criminal case shall be

had in the county or city in which the offense was committed.”).

E.

Finally, Parker contends that the Commonwealth failed to prove that VDACS

“demanded” that Parker comply with Code § 3.1-398.1. Parker contends that such a “demand” is

required pursuant to Code § 3.1-418. While we agree that a demand is required as a prerequisite

to prosecution, we find no error in the trial court’s implicit determination that such a “demand”

was made in this case.

As stated above, Code § 3.1-418 provides that “[a]ny manufacturer, dealer or person who

refuses to comply upon demand with the requirements of Chapters 20 (§ 3.1-361 et seq.), 21

(§ 3.1-420 et seq.), and 30 (§ 3.1-867 et seq.) of this title . . . shall be guilty of a

misdemeanor . . . .” VDACS continually notified Parker that she could not operate a

manufacturing establishment and offer her cheeses for sale unless she complied with Virginia

food and beverage laws, including permitting an inspection of her facility. Such notification,

coupled with VDACS’s demand to inspect Parker’s facility, its certified letter to her concerning

her alleged violation of the food laws, and the related hearing on the matters, clearly satisfied a

“demand” as contemplated by Code § 3.1-418.

Accordingly, we find no error in the decisions of the trial court to deny Parker’s motions

on these grounds. We thus affirm Parker’s conviction.

Affirmed.

- 25 -
Benton, J., dissenting.

The trial judge convicted Brenda Parker of a criminal misdemeanor offense for violating

a statute that does not designate the prescribed conduct as a criminal offense. I would reverse the

conviction and dismiss the warrant.

I.

The record established that a misdemeanor summons charged Brenda Parker with

“unlawfully [o]perat[ing] a food manufacturing plant without it having been inspected by the

Commissioner [of Agriculture] . . . in violation of [Code § ] 3.1-398.1.” In pretrial motions and

argument, Parker’s attorney contended that a criminal misdemeanor charge could be imposed

only if the judge “read[s] [Code § ] 3.1-398.1 with [Code § ] 3.1-418.” He moved the judge to

dismiss the warrant and argued that no criminal offense existed because the indictment did not

allege a demand for inspection. See Code § 3.1-418 (providing, in pertinent part, that “[a]ny . . .

person who refuses to comply upon demand with the requirements of Chapter 20 (§ 3.1-361 et

seq.) . . . shall be guilty of a misdemeanor”). The prosecutor responded that Code § 3.1-418 was

not implicated because “[Parker is] not charged under that.” The judge, confirming the

prosecutor’s statement, then ruled, “She’s not charged with that,” and denied the motion. The

prosecutor’s statement and the judge’s ruling unambiguously established that Parker’s trial

encompassed no more than the conduct alleged in the warrant and the application of Code

§ 3.1-398.1.

At the conclusion of the Commonwealth’s evidence, the judge found the following facts

in overruling Parker’s motion to strike the evidence:

So the fact that she refused an inspection was not the thrust of what
the officers are doing. What they want to find out is about her
operation and explain to her she needs to be inspected before she
can proceed. If it was simply the failure to inspect that they were

- 26 -
 [alleging] to let them in, then they wouldn’t have dropped it,
because any violation that occurred had already occurred.

The judge convicted Parker of violating Code § 3.1-398.1 and later entered a conviction order

that provides as follows:

This day came the defendant, Brenda Parker, . . . who stands
charged with a misdemeanor, to-wit: “Operate a food
manufacturing plant without it having been inspected by the
Commissioner” . . . .

After hearing argument of counsel, the Court finds the defendant
GUILTY of the following offense:

CASE OFFENSE OFFENSE VA CODE
NO. DESCRIP. DATE SECT.

02-35 Operate Food Manufact. 08-04-01 3.1-398.1
Plant without it having been
inspected by Comr.

The Court sentences the defendant to:

Incarceration in jail for the term of 30 days.

A fine of $100.00

II.

Code § 3.1-398.1 does not encompass or charge a substantive criminal offense. The

entire text of the statute provides as follows:

No person shall operate a food manufacturing plant, food
storage warehouse, or retail food store until it has been inspected
by the Commissioner. This section shall not apply to food
manufacturing plants operating under a grant of inspection from
the Bureau of Meat and Poultry Inspection or a permit from the
Bureau of Dairy Services of the Virginia Department of
Agriculture and Consumer Services and Grade A fluid milk
manufacturing plants and shellfish and crustacea processing plants
operating under a permit from the Virginia Department of Health.

Code § 3.1-398.1.

- 27 -
 Courts do not have the power to prescribe conduct as criminal where the legislature has

not specified by statute that the conduct is criminal. Indeed, we have previously held that the

absence of a statutorily prescribed penalty prevents a trial judge from imposing a penalty.

“[A] crime is made up of two parts, forbidden conduct and a
prescribed penalty. The former without the latter is no crime.”
Criminal penalties “should be provided with that degree of clarity
that characterizes all criminal law, to the end that its application
must not be left to conjecture.” If a criminal statute or ordinance
does not specify a penalty, it is beyond our province to prescribe
one on the assumption that the deficiency was simply an
“oversight.” “Defining crimes and fixing penalties are legislative,
not judicial, functions.”

Cook v. Commonwealth, 20 Va. App. 510, 513, 458 S.E.2d 317, 319 (1995) (citations omitted).

Thus, we reversed the conviction in Cook because the “[d]efendant was . . . convicted for

conduct which constituted no crime.” 20 Va. App. at 514, 458 S.E.2d at 319.

Although Virginia statutorily recognizes some common law crimes by reference and

specifically prescribes punishment for those common law crimes, operating a food

manufacturing plant that has not been inspected is not a common law crime. Significantly, the

Commonwealth points to no statute, which provides, either explicitly or by reference, that a

violation solely of the provisions of Code § 3.1-398.1 constitutes a criminal offense. Indeed, at

trial, the prosecutor explicitly denied relying on any other statute, especially eliminating Code

§ 3.1-418, and sought a conviction upon proof that Parker violated only the prohibitions of Code

§ 3.1-398.1. The conviction order only references Code § 3.1-398.1. This statute, however, is

part of a general administrative scheme to regulate food and drinks. See Chapter 20 (Code

§ 3.1-361 et seq.). Within this statutory scheme, the legislature has provided various civil

remedies that may be enforced when a person violates a duty proscribed by the statutes. See,

e.g., Code § 3.1-398 (authorizing the Board “to promulgate regulations for the efficient

enforcement of this article”); Code § 3.1-408 (authorizing seizure of food and products produced
- 28 -
or held in violation of the statutes); Code § 3.1-411 (authorizing forfeiture of food and goods).

See also Code § 3.1-389 (providing, in addition to other remedies, authorization to the

Commissioner to seek a temporary or permanent injunction for persons violating the statutory

prohibitions).

A general characteristic of administrative law is the existence of civil remedies for

violations of duties imposed by administrative statutory schemes. See Kissinger v. Reporters

Committee, 445 U.S. 136, 148-49 (1980) (holding that legislatures do enact statutes with

language that “merely ‘proscribes certain conduct’” with the intent of “provid[ing]

administrative remedies for violation of the [statutory] duty”); Volkswagen of America, Inc. v.

Smit, 266 Va. 444, 448, 587 S.E.2d 526, 529 (2003) (describing a provision of the Motor

Vehicle Dealers Act that makes “unlawful” a car distributor’s failure to allocate monthly to the

dealer the appropriate number of new vehicles and that requires the Commissioner of the

Department of Motor Vehicles to make a finding of the distributor’s method of allocation at the

dealer’s request). Similar to a myriad of other statutes, Code § 3.1-398.1 proscribes conduct that,

when violated, may give rise to a civil enforcement. See e.g., Code § 51.5-41 (barring as a civil

prohibition an “employer [from] discriminat[ing] in employment or promotion practices against

an otherwise qualified person with a disability solely because of such disability”); Code

§ 40.1-51.4:4 (rendering as a civil prohibition that “it shall be unlawful for any law-enforcement

agency as defined in [Code] § 9.1-500 . . . to require any employee to submit to a lie detector test

. . . except . . . [when] related to a particular internal administrative investigation concerning

allegations of misconduct or criminal activity”); Code § 38.2-4312 (requiring as a regulatory

practice that “[n]o health maintenance organization or its representative may cause or knowingly

permit the use of . . . advertising that is untrue or misleading . . . .”).

- 29 -
 In summary, Code § 3.1-398.1 is a part of an administrative regulatory scheme and the

express language of Code § 3.1-398.1 does not create a substantive criminal offense. Therefore,

the trial judge did not have the authority to adjudicate a violation of Code § 3.1-398.1 as a

criminal offense.

III.

Because the legislature did not create Code § 3.1-398.1 to be a criminal statute without

reference to some other conduct, the trial judge exceeded his power when he convicted Parker of

a misdemeanor criminal offense. On several occasions, the Supreme Court has reversed criminal

convictions of defendants for non-existent offenses. In Bundy v. Commonwealth, 220 Va. 485,

259 S.E.2d 826 (1979), the Court ruled as follows:

We believe that the weapons verdict in this case . . . plainly
convicts the defendant of the use of a firearm while committing,
not murder, but some undesignated other felony. Under the
weapons statute as it read prior to 1976, such a verdict might have
been proper.

* * * * * * *

[A]s a result of the 1976 amendment to Code § 18.2-53.1,
the use of a firearm “while committing a felony” no longer is
sufficient to constitute a violation of the statute. Now, a violation
occurs only when a firearm is used with respect to the specified
felonies of murder, rape, robbery, burglary, and abduction.

The offense in this case and the prosecution therefor took
place after the effective date of the amendment to Code
§ 18.2-53.1. Yet, under instructions erroneously framed to permit
such action, the jury was given free rein either to convict the
defendant of the no-longer existing offense of using a firearm in
the commission of a felony or to convict him of using a firearm
while committing murder. The jury convicted the defendant of the
non-existent offense. Clearly, therefore, the defendant’s firearms
conviction must be reversed.

Id. at 487-88, 259 S.E.2d at 828. See also Jimenez v. Commonwealth, 241 Va. 244, 251, 402

S.E.2d 678, 681 (1991) (reversing a conviction because the judge’s “instruction omitted some

- 30 -
essential elements of the offense” and permitted the jury to convict Jimenez “of a non-offense”);

Ball v. Commonwealth, 221 Va. 754, 758-59, 273 S.E.2d 790, 793 (1981) (reversing a

conviction for capital murder because the evidence proved a homicide during an attempted

robbery, which was not then one of the statutorily defined predicate offenses of capital murder);

Marshall v. Commonwealth, 26 Va. App. 627, 637, 496 S.E.2d 120, 125 (1998) (noting that “we

would be permitted to invoke the ends of justice exception to reverse . . . a conviction for a

non-existent offense”).

Simply put, a circuit court lacks the power to convict an accused criminal defendant of a

“non-existent offense.” A conviction of a “non-existent offense” implicates the circuit court’s

subject matter jurisdiction and, thus, is cognizable on a direct appeal from such a conviction.

Indeed, the Supreme Court has held “that ‘[s]ubject matter jurisdiction is granted by constitution

or statute,’ that ‘[i]t cannot be waived,’ that ‘any judgment rendered without it is void ab initio,’

and that ‘lack of subject matter jurisdiction “may be raised at any time, in any manner, before

any court, or by the court itself.’”” Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75

(2001) (citation omitted). Nothing in the constitution or statutes of Virginia permits a judge to

convict a person of a criminal offense for violating a statute that merely proscribes conduct.

Because the judge convicted Parker of a non-existent criminal offense, I would hold that

the judge exceeded his jurisdictional power in so doing. I would, therefore, reverse the

conviction and dismiss the warrant.

- 31 -