COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
WILLIAM TED WADE
MEMORANDUM OPINION * BY
v. Record No. 1790-00-3 JUDGE G. STEVEN AGEE
FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
(Timothy W. Allen, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General; Linwood T.
Wells, Jr., Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
William Ted Wade (Wade) was convicted in a jury trial of
three counts of distribution of cocaine. On appeal, Wade
contends the trial court erred in refusing to grant his motion
for a new sentencing hearing. He contends he was entitled to a
new sentencing hearing because the jury was not instructed that
parole had been abolished in Virginia. We disagree and affirm
the trial court's denial of the motion for a new sentencing
hearing.
* 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.
On May 10, 2000, a Franklin County jury found Wade guilty
of three counts of distribution of cocaine. The jury was not
instructed that Wade would not be eligible for parole. Wade did
not submit an instruction relating to his parole eligibility for
the court's consideration; he did not object to the instructions
given by the trial court, and the jury made no inquiry to the
trial court regarding the effect of parole or any other issue,
which might affect the sentence imposed. After its sentencing
deliberations, the jury recommended a sentence of twenty years
and a $50,000 fine on each count.
Wade subsequently moved the trial court for the preparation
of a pre-sentence report. The trial court granted the motion
and set the formal sentencing for June 23, 2000. Two weeks
prior to Wade's formal sentencing, the Supreme Court of Virginia
rendered its decision in Fishback v. Commonwealth, 260 Va. 104,
532 S.E.2d 629 (2000), on June 9, 2000. At his June 23, 2000
appearance for formal sentencing, Wade moved for a new
sentencing hearing alleging the jury was not instructed that
parole had been abolished in the Commonwealth as required by
Fishback. The trial court continued sentencing to June 29,
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2000, to consider the motion. On the 29th, the trial court
overruled Wade's motion and imposed the jury's recommended
sentence.
II. Analysis
Wade contends on appeal that the trial court erred in
refusing to grant his motion for a new sentencing hearing. He
argues the jury must be instructed on the abolition of parole
since his case was not yet final when the Supreme Court decided
Fishback. On that basis, Wade argues his entitlement to the
jury instruction did not require counsel to timely request such
an instruction or the jury inquiring as to the possibility of
parole. We disagree and find Wade's ultimate 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. The jury during its deliberations, however, submitted
to the trial court the following inquiry regarding parole: "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 have found the defendant guilty of
murder in the second degree and abduction.
You should impose such punishment as you
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feel is just under the evidence and within
the instructions of the Court. You are not
to concern yourselves with what might happen
afterwards.
After the sentencing hearing, counsel for the defendant
asserted that the jury's concern whether Jerman would be
eligible for parole prejudiced its sentencing deliberations.
Counsel contended that the jury's inquiries demonstrated it
assumed parole and felt the defendant was deserving of less than
the sentences it determined. The trial court imposed the
sentences the jury determined.
Jerman appealed his conviction to this Court. We vacated
the defendant's sentence and remanded the case to the trial
court for a new sentencing proceeding, holding that the trial
court had erred in failing to instruct the jury on the abolition
of parole, citing Fishback. The Commonwealth appealed to the
Supreme Court.
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 94,
556 S.E.2d at ____. It held that its decision in Fishback, for
a jury to be instructed on the abolition of parole, does not
circumscribe the application of procedural rules. Id. 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 any objections to the trial
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court's instruction and to ask the court for any other
instructions on the subject that he deems necessary. Id. at 94,
556 S.E.2d at ___.
In light of the Supreme Court's decision in Jerman, we find
Wade's challenge to the lack of a jury instruction on the
abolition of parole to be procedurally barred pursuant to Rule
5A:18.
It is clear from the record that Wade failed to request any
jury instruction regarding parole or to object to the
instructions given at trial. We, therefore, are barred from
considering the issue of whether the trial court erred in not
instructing the jury on the abolition of parole.
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
Rule 5A:18. "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).
The laudatory purpose behind Rule 5A:18
. . . 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
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necessary. The rules promote orderly and
efficient justice and are to be strictly
enforced.
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,
272 (1997). "[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 oneself of the
exception, a defendant must affirmatively show that a
miscarriage of justice has occurred." Redman, 25 Va. App. at
221, 487 S.E.2d at 272 (citing Mounce v. Commonwealth, 4 Va.
App. 433, 436, 357 S.E.2d 742, 744 (1987)).
Wade makes no argument on the application of Rule 5A:18 or
the ends of justice exception. We see no basis to apply the
ends of justice exception to this appeal.
A trial court, generally, does not have the affirmative
duty to instruct the jury, sua sponte, on a legal principle when
the parties fail to request such instruction and the jury does
not evidence a need to be instructed. Fishback does not amend
this practice.
For these reasons, we find this appeal procedurally barred,
and the trial court's denial of the motion for a new sentencing
hearing is affirmed.
Affirmed.
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