COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
AMPAZZIO WALLETI WARREN, S/K/A
AMPAZZO WARREN
MEMORANDUM OPINION * BY
v. Record No. 2831-00-3 JUDGE G. STEVEN AGEE
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
William R. Light for appellant.
(Randolph A. Beales, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Ampazzio Walleti Warren (Warren) was convicted in a jury
trial of possession of cocaine with the intent to distribute, in
violation of Code § 18.2-248, possession of a firearm while
simultaneously in possession of cocaine, in violation of Code
§ 18.2-308.4, and carrying a concealed weapon, second offense,
in violation of Code § 18.2-308. On appeal, Warren contends the
trial court erred in failing to instruct the jury that parole
had been abolished. We find no error by the trial court and
affirm Warren's sentence.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Background
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
A Danville jury found Warren guilty of possession of
cocaine with the intent to distribute, possession of a firearm
while simultaneously in possession of cocaine and carrying a
concealed weapon. During the penalty phase of the trial, the
jury was not instructed that parole had been abolished in
Virginia and, therefore, Warren would not be eligible for
parole. Warren did not submit a jury instruction relating to
parole eligibility for the court's consideration, and he did not
object to the jury instructions given by the trial court.
Shortly after jury deliberations began, the jury submitted
a written inquiry to the trial court, which the trial judge
answered to the jury as follows:
[W]hat percentage of the sentence must be
served? The response to that question is
that you are not to concern yourself with
what may happen to the defendant, after he
has been sentenced.
Warren did not object to the trial judge's reply to the
jury's inquiry, nor did he request that the jury be instructed
that parole had been abolished.
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II. Analysis
Warren contends on appeal that the trial court erred in
failing to instruct the jury on the abolition of parole. He
argues he was entitled to a jury instruction on the abolition of
parole pursuant to Fishback v. Commonwealth, 260 Va. 104, 532
S.E.2d 629 (2000). We disagree and find Warren's issue on
appeal to be procedurally barred. See Commonwealth v. Jerman,
263 Va. 88, 556 S.E.2d 754 (2002).
In Jerman, the defendant did not request a jury instruction
on the abolition of parole or object to the instructions given
at trial. Also, as in the case at bar, the Jerman jury
submitted an inquiry regarding parole to the trial court: "At
what point in a sentence will the defendant be subject to
parole? In other words, what are the parameters for parole
eligibility?" By agreement of the parties, the trial court
instructed the jury, pursuant to the law in effect on the date
of trial, as follows:
You should impose such punishment as you
feel is just under the evidence and within
the instructions of the Court. You are not
to concern yourselves with what might happen
afterwards.
The trial court imposed the sentences the jury determined.
Jerman appealed his convictions to this Court, citing
Fishback. We vacated the defendant's sentences and remanded the
case to the trial court for a new sentencing proceeding, holding
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that the trial court had erred in failing to instruct the jury
on the abolition of parole.
The Supreme Court reversed our decision, finding a
challenge to the lack of a jury instruction on the abolition of
parole to be procedurally barred by its Rule 5:25. Id. at
93-94, 556 S.E.2d at 757. It held that its decision in Fishback
does not circumscribe the application of procedural rules. Id.
at 94, 556 S.E.2d at 758. For a defendant to maintain the right
to appeal a trial court's jury instructions or its failure to
properly instruct the jury, a defendant is required to state his
objections to the trial court's instruction and to ask the court
for any other instructions he deems necessary. Id. at 94, 556
S.E.2d at 757-58.
It is clear from the record that Warren failed to request
any jury instruction regarding parole or to object to the
instructions given at trial. We, therefore, are barred by Rule
5A:18 from considering the issue of whether the trial court
erred in not instructing the jury on the abolition of parole.
"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." Phoung v. Commonwealth, 15 Va. App. 457, 463, 424
S.E.2d 712, 716 (1992). "[T]he ends of justice exception is
narrow and is to be used sparingly." Brown v. Commonwealth, 8
Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). "In order to avail
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oneself of the exception, a defendant must affirmatively show
that a miscarriage of justice has occurred." Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)
(citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d
742, 744 (1987)).
Warren has made no showing that a miscarriage of justice
has occurred in this case. In view of the clear and unequivocal
decision by the Supreme Court in Jerman under Rule 5:25, we see
no basis to apply the ends of justice exception to this appeal.
For these reasons, we find this appeal procedurally barred,
and Warren's sentences are affirmed.
Affirmed.
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