Fishback v. Commonwealth

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice

RICHARD DAVID FISHBACK
OPINION BY
v. Record No. 991615 JUSTICE LAWRENCE L. KOONTZ, JR.
June 9, 2000
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we primarily consider whether a defendant

in a non-capital felony trial is entitled to have the jury

instructed that, pursuant to Code § 53.1-165.1, parole has been

abolished in Virginia.

BACKGROUND

Because our review is limited to the issue of whether the

trial court erred in failing to instruct the jury on the

abolition of parole, a succinct statement of the facts,

presented in the light most favorable to the Commonwealth as the

party prevailing below, will suffice.

On March 24, 1997, the grand jury of Fauquier County

returned indictments against Richard David Fishback charging him

with robbery, Code § 18.2-58, three counts of abduction, Code

§ 18.2-47, and four related firearm charges, Code § 18.2-53.1.

During a two-day bifurcated jury trial conducted in the Circuit

Court of Fauquier County, the Commonwealth’s evidence during the

guilt-determination phase showed that on the afternoon of
January 7, 1997, Fishback, armed with a handgun, robbed an

employee of a convenience store and unlawfully detained two

store employees and a customer with intent to deprive them of

their personal liberty. Based upon the evidence, the jury

convicted Fishback of all eight felony offenses charged in the

indictments.

During the penalty-determination phase, Fishback’s counsel

proffered jury instruction “No. S” stating that “there is no

parole in Virginia.” The trial court inquired whether counsel

had “authority for that instruction?” Counsel replied that she

did not have authority for this instruction, but asserted that

it “is just the current state of the law now.” The trial court

ruled that “[i]t is not an approved instruction,” refused to

give it to the jury, and noted counsel’s objection.

The trial court then addressed instruction “No. T”

proffered by Fishback’s counsel which directed the jury to

“assume that [the defendant] will actually serve all of the jail

or prison time you find to be an appropriate sentence and you

are not otherwise to concern yourselves with what may happen

afterwards.” The trial court again inquired whether counsel had

authority for this instruction. She replied that she had

“prepared this instruction knowing that many times a jury

returns with questions about the amount of time a person will

serve and probation and things of that nature. That is what

2
this instruction was designed by me to address.” The trial

court refused the instruction, but noted that “[i]f the jury

sends a question . . . about . . . probation or parole or how

much time [Fishback] is going to serve . . . then I will deal

with that issue should it arise.”

During its deliberations on sentencing, the jury sent a

note to the trial court, which read as follows:

Question:

1. Will these terms run
Consecutively?
Concurrently?

2. Can the sentence be reduced by the judge.

3. Can he qualify for parole
Robbery?
Abduction?
Firearms?

After a brief discussion of the questions with both

counsel, the trial court indicated that it would “propose giving

the model [jury] instruction” the Commonwealth had prepared.

This instruction stated that “[h]aving found [Fishback] guilty,

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 may happen afterwards.”

Fishback’s counsel did not object to this instruction or renew

her request that the trial court instruct the jury that parole

had been abolished.

3
 After further deliberations, the jury returned verdicts

sentencing Fishback to terms of imprisonment of thirty years for

robbery, seven years for each of the abductions, and a total of

eighteen years for the firearm offenses. Following receipt of a

pre-sentence report, the trial court imposed the jury’s

sentences to run consecutively, but suspended fifty-one years of

the sentences on condition that Fishback serve ten years

probation following his release.

Fishback filed a petition for appeal in the Court of

Appeals asserting issues related to the sufficiency of the

evidence to prove abduction and the firearm offenses predicated

on abduction, the denial of a suppression motion, the refusal of

an instruction defining abduction, and the refusal of the

instruction concerning the abolition of parole. By order dated

November 13, 1998, the Court of Appeals awarded an appeal for

the first four of these issues, but denied an appeal on the

parole issue. In that order, the Court of Appeals, quoting from

Briscoe v. Commonwealth, 26 Va. App. 415, 417, 494 S.E.2d 898,

899 (1998), noted that it had previously held that “a trial

court is not required to instruct the jury on a defendant’s

eligibility for parole in non-capital cases.” After oral

argument on the issues for which an appeal had been awarded, the

Court of Appeals affirmed Fishback’s convictions in an

4
unpublished opinion. Fishback v. Commonwealth, Record No. 1377-

98-4 (June 15, 1999).

Fishback filed a petition for appeal in this Court

reasserting the issues reviewed by the Court of Appeals in its

order and opinion. We awarded Fishback an appeal limited to the

issue of whether the trial court “erred in refusing appellant’s

proffered penalty phase instruction that parole has been

abolished in Virginia.” 1

DISCUSSION

In Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602

(1999), we noted that the abolition of parole pursuant to Code

§ 53.1-165.1 and the exclusion of prisoners serving life

sentences for class one felonies from being eligible for

geriatric release pursuant to Code § 53.1-40.01 rendered a

defendant convicted of capital murder parole-ineligible. See

id. at 368 n.7, 519 S.E.2d at 612 n.7. Reviewing the rule,

first stated in Coward v. Commonwealth, 164 Va. 639, 646, 178

S.E. 797, 799 (1935), that a jury should not be instructed upon

the possibility of parole, we held that “[t]he Coward rule

simply does not address [the] unique situation” in which a jury

must elect between a death sentence and a sentence of life

1
Accordingly, only Fishback’s sentences, and not his
convictions, are at issue in this appeal.

5
without possibility of parole. Yarbrough, 258 Va. at 372, 519

S.E.2d at 615. Accordingly, we further held that a defendant

convicted of capital murder was entitled to an instruction that

he would be parole-ineligible if sentenced to life imprisonment. 2

Id. at 374, 519 S.E.2d at 616.

In rendering our decision in Yarbrough, we recognized “that

the limitations placed upon the availability of parole by Code

§§ 53.1-40.01 and 53.1-165.1 may call into question the

continued viability of the Coward rule in a non-capital felony

case.” Id. at 373, 519 S.E.2d at 615. However, we emphasized

that our decision in Yarbrough was “limited to the effect of

Code § 53.1-165.1 on capital murder prosecutions.” Id.

Accordingly, this appeal presents the first opportunity since

that decision for this Court to examine the effect of the

statutory abolition of parole on the Coward rule in non-capital

cases.

Our decision in Yarbrough is not dispositive of the issue

presented in this case. This is so because a defendant

2
Such an instruction was already required where the
Commonwealth elected to present evidence of the defendant’s
future dangerousness to society. See Simmons v. South Carolina,
512 U.S. 154, 161-62 (1994) (plurality opinion); Mueller v.
Murray, 252 Va. 356, 362, 478 S.E.2d 542, 546-47 (1996). Our
decision in Yarbrough was not premised on the due process
concerns expressed in Simmons, but on the effect of the changes
in the statutes governing parole on the continued viability of
the Coward rule. Yarbrough, 258 Va. at 367, 519 S.E.2d at 612.
6
convicted of a non-capital felony committed after the effective

date of Code § 53.1-165.1, while no longer eligible for parole,

may nonetheless be eligible for geriatric release, Code § 53.1-

40.01, and may also qualify for a reduction in sentence through

an earned sentence credit calculation, Code §§ 53.1-202.2 et

seq., commonly referred to as a “good behavior credit.”

Although neither of these provisions is defined as “parole” in

the Code, they are nonetheless respectively a form of early

release and a form of sentence reduction available to a prisoner

under the administration of the executive branch of government.

Discussing the policy underlying the Coward rule, we have

noted that “[u]nder our system, the assessment of punishment is

a function of the judicial branch of government, while the

administration of such punishment is a responsibility of the

executive department. The aim of the rule followed in Virginia

is to preserve, as effectively as possible, the separation of

those functions during the process when the jury is fixing the

penalty, in full recognition of the fact that the average juror

is aware that some type of further consideration will usually be

given to the sentence imposed.” Hinton v. Commonwealth, 219 Va.

492, 496, 247 S.E.2d 704, 706 (1978). Accordingly, unlike the

unique circumstances of the sentencing decision to be made by a

jury in a capital murder trial, where the executive branch will

have no discretion to reduce a life sentence through parole or

7
geriatric release, it would be inaccurate to inform a jury that

a defendant convicted of a lesser felony would not be eligible

for early release in every instance.

One of the conundrums created by the interaction of Code

§§ 53.1-40.01, 53.1-165.1, and 53.1–202.2 et seq. is that,

depending on the length of the sentences imposed and the age of

the defendants, some persons convicted of non-capital felonies

will not be eligible for any form of early release, while others

may be able to benefit from geriatric release, good behavior

credits, or both. Moreover, it is apparent on the record of

this case, and of countless others reviewed by this Court and

the Court of Appeals, see, e.g., Clagett v. Commonwealth, 252

Va. 79, 94, 472 S.E.2d 263, 272 (1996); Mosby v. Commonwealth,

24 Va. App. 284, 287, 482 S.E.2d 72, 73 (1997), that juries

frequently have no comprehension of the current state of parole

eligibility in this Commonwealth, but remain concerned that

their sentencing decisions will be subjected to extensive

reductions by executive action. See, e.g., Yarbrough, 258 Va.

at 358, 519 S.E.2d at 607 (jury question to the trial court

asking whether a life sentence meant “your entire life or does

it have a certain limit such as 12 years?”). For these reasons

and in light of the significant limitations which are now placed

on the executive branch in modifying the sentences imposed on

defendants by the judicial branch as the result of the enactment

8
of Code §§ 53.1-40.01, 53.1-165.1, and 53.1–202.2, et seq. it is

not merely appropriate, but requisite, that we reconsider the

policy underlying the Coward rule. 3

We begin that reconsideration with the acknowledgement that

while “truth in sentencing” is a goal to be desired in the

judicial process, it is necessarily an elusive one when a jury

has the responsibility to fix punishment. This is so, in part,

because under our system, as we noted in Hinton, the assessment

of punishment against a defendant and the subsequent

administration of that punishment are separate functions of the

judicial and executive branches of government respectively.

However, the specific reason is that after imposition of the

jury’s punishment, the conduct of the defendant will control the

length of that punishment to a significant degree. In short,

there can be no guarantee that a defendant will earn some form

of statutorily permitted early release from the punishment fixed

by the jury and yet the jury may attempt to factor some form of

anticipated early release into its determination of punishment.

3
We are confirmed in this decision by the action of the
General Assembly, which, in its most recent session, amended
Code § 19.2-264 to codify the effect of our decision in
Yarbrough and in that same action directed “[t]hat the Virginia
Supreme Court, in conjunction with the Virginia State Bar,
investigate and recommend to the General Assembly on or before
January 1, 2001, model jury instructions for felonies, not
including capital murder, concerning the abolition of parole.”
House Bill 705 (2000).
9
 Nevertheless, to perform its responsibility a jury is

required to consider a broad range of punishment in terms of

years of confinement statutorily established by the legislature.

Pertinent to the present case, for example, Code § 18.2-58

provides for a range of punishment between a term of life to any

term not less than five years for robbery, and a violation of

Code § 18.2-47 is a Class 5 felony punishable by a term of not

less than one year nor more than ten years for abduction. See

Code § 18.2-10(e). However, within the permissible range of

punishment a jury is required to determine a specific term of

confinement that it considers to be an appropriate punishment

under all the circumstances revealed by the evidence in the

case. A jury should not be required to perform this critical

and difficult responsibility without the benefit of all

significant and appropriate information that would avoid the

necessity that it speculate or act upon misconceptions

concerning the effect of its decision. Surely a properly

informed jury ensures a fair trial both to the defendant and the

Commonwealth.

The question then becomes how a jury is to be instructed so

that it is properly informed and can render a fair trial to both

parties while preserving, as effectively as possible, the

separation of the functions of assessing punishment and

administering it. With regard to the issue of parole, the

10
answer lies primarily in the enactment of Code § 53.1-165.1

which, in pertinent part, provides that “[a]ny person sentenced

to a term of incarceration for a felony offense committed on or

after January 1, 1995, shall not be eligible for parole upon

that offense.”

Code § 53.1-165.1 is clear and, as to those offenses to

which it applies, it leaves no room for speculation by a jury as

to what might occur thereafter during the executive department’s

administration of the sentence imposed. Moreover, as a result

of the enactment of this statute the policy underlying the

Coward rule is eroded. The executive branch no longer has the

discretion to grant or deny parole because this statute

abolishes parole. Thus, in the context of achieving the goal of

“truth in sentencing,” it simply defies reason that this

information ought not to be provided to the jury by an

instruction of the trial court.

However, it is equally clear, as we have noted, that it

would be inaccurate to inform a jury that a defendant convicted

of a non-capital felony would not be eligible for early release

in every instance. Indeed, for every person convicted of a non-

capital felony offense committed on or after January 1, 1995,

the provisions of Code § 53.1-40.01 and Code §§ 53.1-202.2 et

seq. are implicated and conditionally provide for forms of early

release and sentence reduction. Because such early release and

11
sentence reduction provisions are not mandatory, the policy

concerns underlying the Coward rule logically remain viable,

although to a lesser extent. Nonetheless, because those

statutory provisions represent a clear departure from the broad

discretion given to the executive branch under the prior law

with regard to early release and sentence reduction, we believe

that strict adherence to the Coward rule is no longer

appropriate.

Although we have discussed Code § 53.1-40.01 and Code

§§ 53.1-202.2 et seq. in the context that these statutes provide

for forms of early release and sentence reduction, they are

distinctively different with regard to the issue of parole

eligibility in this appeal. The former is more in the nature of

a parole statute than the latter. Indeed, Code § 53.1-40.01, in

pertinent part provides that:

Any person serving a sentence imposed upon a
conviction for a felony offense, other than a Class 1
felony, committed on or after January 1, 1995, (i) who
has reached the age of sixty-five or older and who has
served at least five years of the sentence imposed or
(ii) who has reached the age of sixty or older and who
has served at least ten years of the sentence imposed
may petition the Parole Board for conditional release.

(Emphasis added).

In contrast, the Board of Corrections, pursuant to Code

§ 53.1-202.4, is required, among other things, to establish the

criteria upon which a person shall be deemed to have earned or

12
forfeited sentence credits. In addition, Code § 53.1-202.3

limits the maximum rate at which sentence credits may be earned.

However, for purposes of our present analysis with regard

to the Coward rule, the most significant distinction between the

statutory provisions for geriatric release and sentence

reduction for good behavior credit is a matter of application

and predictability. The determination of a prisoner’s

eligibility for geriatric release is essentially a mathematical

calculation. The age of the prisoner and the years served of

the sentence imposed are readily determinable and, thus, not

subject to speculation. A prisoner’s eligibility for early

release for good behavior credit does not involve such a clear-

cut calculation. Rather, under the applicable statutory

provisions, eligibility for sentence reduction for good behavior

credit necessarily involves the unpredictable conduct of a

prisoner, and to a significant degree the subjective assessment

of that conduct by employees of the Department of Corrections,

with regard to compliance with rules and participation in

various programs established and administered by the Board of

Corrections. Thus, when attempting to factor good behavior

credit into its determination of an appropriate sentence, a jury

would be required to speculate on the unpredictable conduct

thereafter of a particular defendant and the assessment of that

conduct by the executive branch of government. The avoidance of

13
such speculation underlies the Coward rule because speculation

by the jury is inconsistent with a fair trial both to the

defendant and the Commonwealth.

For these reasons, we are of opinion that a new rule is

both appropriate and mandated as a result of the statutory

enactments discussed above. Accordingly, we will direct that

henceforth juries shall be instructed, as a matter of law, on

the abolition of parole for non-capital felony offenses

committed on or after January 1, 1995 pursuant to Code § 53.1-

165.1. In addition, because Code § 53.1-40.01 is in the nature

of a parole statute, where applicable juries shall also be

instructed on the possibility of geriatric release pursuant to

that statute.

Under this new rule, the task of the trial courts will

require only that instructions with regard to the abolition of

parole be tailored to the facts of a particular case. Thus,

when a defendant’s age and the permissible range of punishment

for the offense in question totally negate the applicability of

Code § 53.1-40.01, the jury will be instructed that the

defendant is not eligible for parole in accordance with Code

§ 53.1-165.1. In those cases where geriatric release is a

possibility, then the jury will be instructed in accordance with

the applicable provisions of Code § 53.1-40.01 along with the

instruction that parole is otherwise abolished.

14
 This new rule, however, does not include the requirement

that juries also be instructed with regard to the provisions of

Code §§ 53.1-202.2 et seq. As explained above, at the time a

jury assesses punishment it does not, and cannot, have a factual

basis upon which to factor the provisions for good behavior

credit into its determination of an appropriate sentence in a

given case. Rather, such an effort would be an exercise in pure

speculation. Consequently, juries are not to be instructed with

regard to these statutory provisions. 4

In light of this new rule and the limitation we have placed

on it with regard to jury instructions concerning good behavior

credits and executive clemency, we will overrule Coward and its

progeny to the extent that they are inconsistent with this

opinion. In addition, because this is a new rule of criminal

procedure it is limited prospectively to those cases not yet

final on this date. See Mueller, 252 Va. at 361, 478 S.E.2d at

545.

4
For the same reasons, we now also hold that the
Commonwealth will not be permitted an instruction on the matter
of executive clemency. We take this opportunity to do so to
clarify the extent of the new rule we adopt today and to resolve
the issue left unresolved in Yarbrough. See Yarbrough, 258 Va.
at 376, 519 S.E.2d at 618 (Compton, J., dissenting).

15
 We now turn to the specific circumstances of Fishback’s

case. 5 Initially, we note that Fishback’s proposed instruction

“No. S” was not wholly accurate because it suggested that he

would not be eligible for any form of early release. Because

Fishback was forty-four years of age at the time the jury

considered its sentence, under the permissible sentencing range

for the robbery and abduction offenses for which he had been

convicted he would become eligible for geriatric release under

Code § 53.1-40.01 when he reached age sixty. In addition,

Fishback’s proposed instruction “No. T” was not accurate because

it would have told the jury to assume that he would serve the

entire sentence imposed even though under Code § 53.1-202.3 good

time credits can result in a reduction of a sentence by fifteen

percent. These deficiencies in his proffered instructions,

however, do not bar our consideration of the issue presented in

this appeal.

It is axiomatic that “[i]t belongs to the [trial] court to

instruct the jury as to the law, whenever they require

instruction, or either of the parties request it to be given.”

5
Fishback does not contend that the jury’s inquiry
concerning whether the terms of confinement will run
consecutively or concurrently and the further inquiry concerning
whether the sentence can be reduced by the judge were subject to
an instruction. Accordingly, we do not address those inquires
in this appeal.
16
Thornton v. Commonwealth, 65 Va. (24 Gratt.) 657, 662 (1874).

Moreover, pertinent here, we have stated that:

We adhere to the rule that the trial court is not
required to amend or correct an erroneous instruction,
but the rule is subject to the limitation that when
the principle of law is materially vital to a
defendant in a criminal case, it is reversible error
for the trial court to refuse a defective instruction
instead of correcting it and giving it in the proper
form. A jury should not be left in the dark on the
subject.

Whaley v. Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558

(1973).

The jury’s knowledge of the abolition of parole was

materially vital to Fishback’s case in the penalty-determination

phase of his trial. Under our holding above, he was entitled to

have the jury properly instructed on that matter. Thus, the

trial court erred in refusing to give a proper instruction to

the jury on the abolition of parole including the availability

of geriatric release.

CONCLUSION

Accordingly, Fishback’s sentences will be vacated, the

order appealed from reversed, and the case remanded to the Court

of Appeals with directions to remand the same to the trial court

for a new sentencing hearing.

Reversed and remanded.

JUSTICE KINSER, dissenting.

17
 In Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602

(1999), this Court acknowledged that “it has long been held in

this Commonwealth that it is error for the trial court to

instruct the jury that the defendant would be eligible for

parole or could benefit from an executive act of pardon or

clemency.” Id. at 369, 519 S.E.2d at 613 (citing Hinton v.

Commonwealth, 219 Va. 492, 496, 247 S.E.2d 704, 706 (1978);

Jones v. Commonwealth, 194 Va. 273, 279, 72 S.E.2d 693, 696-97

(1952); Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797,

799 (1935)). The policy underlying that rule is twofold.

First, a “jury should not be permitted to speculate on the

potential effect of parole, pardon, or an act of clemency on its

sentence because doing so would inevitably prejudice the jury in

favor of a harsher sentence than the facts of the case might

otherwise warrant.” Yarbrough, 258 Va. at 372, 519 S.E.2d at

615. Equally important is the separation of powers between the

judicial and executive branches of government. In our criminal

justice system, the judicial branch of government assesses

punishment, and the executive branch administers that

punishment. See Hinton, 219 Va. at 496, 247 S.E.2d at 706.

“The aim of the rule followed in Virginia is to preserve, as

effectively as possible, the separation of those functions

during the process when the jury is fixing the penalty . . . .”

Id.

18
 However, in Yarbrough, we created an exception to that rule

in capital murder cases because, with the abolition of parole in

Virginia, see Code § 53.1-165.1, and the unavailability of

geriatric release, see Code § 53.1-40.01, “[t]he Coward rule

simply does not address [the] unique situation” presented to a

jury when it must elect between imposing the death penalty or a

sentence of life. Yarbrough, 258 Va. at 372, 519 S.E.2d at 615.

There, we said that “this unique situation arises from the fact

that a defendant sentenced to life imprisonment for capital

murder, a class one felony, is not subject to ‘geriatric

parole.’” Id. Thus, in capital murder cases, under the rule

announced in Yarbrough, there is no danger that the judicial

branch will exceed its role in assessing punishment by taking

into account matters within the province of the executive

branch.

Today, the majority extends the exception recognized in

Yarbrough to non-capital felony cases even though in such cases,

the executive branch, in administering the sentence, continues

to have available certain forms of sentence reduction, such as

earned sentence credits, see Code §§ 202.2 through -202.4, and

geriatric release. Because I believe that the majority’s

decision will blur the lines between the judicial branch of

government and the executive branch, see Va. Const. art. I, § 5,

I respectfully dissent.

19
 The majority recognizes that it would be unfair to the

Commonwealth to instruct a jury that parole is no longer

available in Virginia without also, in appropriate cases,

advising the jury about geriatric release. However, the

majority also states its view that the jury should not be

instructed about executive clemency, see Code §§ 53.1-229

through -231, or earned sentence credits. While the majority’s

view on the propriety of instructing the jury about earned

sentence credits or executive clemency comports with the

doctrine of stare decisis in that it follows our long-standing

precedent, see Hinton, 219 Va. at 495, 247 S.E.2d at 706,

Coward, 164 Va. at 646, 178 S.E. at 799, precedent that the

majority overrules today in other respects, the majority reaches

its decision not by adhering to our prior decisions, which were

well-grounded in public policy, but rather by distinguishing

between what it considers to be the speculative nature of

various types of sentence reduction available to the executive

branch.

Claiming to find geriatric release and earned sentence

credits “distinctively different,” the majority posits that,

because the eligibility of a prisoner to petition the Parole

Board for conditional geriatric release can be easily

calculated, a jury’s knowledge of geriatric release would not

lead to speculation by it in determining an appropriate

20
sentence. However, in making this distinction, the majority

fails to recognize that the availability of geriatric release

and the award of earned sentence credits both involve the

discretion of the executive branch.

An examination of the statutes creating geriatric release

and earned sentence credits indicates that consideration of

either one by a jury in its sentencing decision would involve

speculation. The statute authorizing geriatric release provides

that a prisoner may petition the Parole Board for such release.

However, the statute does not mandate release when a prisoner

reaches age 65 and has served 5 years, or age 60 and has served

10 years, but authorizes the Parole Board to promulgate

regulations to implement the provisions of that statute. Code

§ 53.1-40.01. 6 Likewise, the executive branch is given

discretion in fashioning standards under which prisoners can

qualify for earned sentence credits. Code § 53.1-202.4. In

fact, the very same “unpredictable conduct of a prisoner, and

. . . subjective assessment of that conduct . . . with regard to

compliance with rules and participation in various programs

6
The Parole Board has not promulgated those regulations to
date, although it has issued manuals that contain rules
implementing the provisions of Code § 53.1-40.01. See Virginia
Parole Board, Virginia Parole Board Policy Manual (July 1997);
Virginia Parole Board, Virginia Parole Board Administrative
Procedures Manual Nos. 1.218 (revised May 21, 1996) and 1.226
(effective Nov. 14, 1995).

21
established and administered by the Board of Corrections,” which

the majority contends renders the earned sentence credit program

too speculative to tell the jury about, is similar to the

inquiry that the Parole Board must conduct before it can

discharge any inmate on geriatric release. Virginia Parole

Board, Virginia Parole Board Administrative Procedures Manual

No. 1.226 (effective Nov. 14, 1995) (Parole Board uses same

criteria for determining prisoner’s suitability for geriatric

release as it does “for assessing offenders eligible for parole

consideration”). 7

If “truth in sentencing” is a goal of our system of

justice, it seems that, if a jury is told anything about the

availability or unavailability of parole or geriatric release,

it should also be instructed about earned sentence credits and

any other matter that could affect the amount of time that a

defendant may actually serve. 8 Otherwise, a jury will be

7
Among those criteria are “[w]hether the individual’s
history, physical and mental condition and character, and the
individual’s conduct . . . reflect the probability that the
individual will lead a law-abiding life . . .,” as well as an
evaluation of the individual’s “[g]eneral [a]djustment” to the
institutional experience, including the individual’s behavior
and relationships with the prison staff and other inmates.
Virginia Parole Board, Virginia Parole Board Policy Manual 2-3
(July 1997). See also Code § 53.1-155(A).
8
I do not mean to suggest that a jury should be told about
the power of the trial court and this Court to set aside a
22
receiving a “half-truth,” and the Commonwealth will be

prejudiced because a jury could believe that a defendant will

serve all of a sentence imposed when, in fact, that is not

always what happens in a non-capital felony case. 9

However, if a jury receives all relevant information so

that neither a defendant nor the Commonwealth is prejudiced, I

fear that juries may become confused, will speculate on the

effect of any applicable sentence reduction methods available to

the executive branch, and perhaps will resort to the use of a

calculator in attempting to fashion an appropriate sentence. We

have previously noted that “the average juror is aware that some

type of further consideration will usually be given to the

sentence imposed,” Hinton, 219 Va. at 496, 247 S.E.2d at 706,

but have warned against encouraging speculation by a jury. “[I]f

it is thought necessary to tell the jury not to speculate about

the information given, it is safer not to give the information

at all.” Jones, 194 Va. at 278, 72 S.E.2d at 696.

jury’s sentence. See Frye v. Commonwealth, 231 Va. 370, 395-96,
345 S.E.2d 267, 284-85 (1986).
9
Our prior cases have indicated a policy favoring a fully
informed jury, Yarbrough, 258 Va. at 373, 519 S.E.2d at 616,
Jones, 194 Va. at 278, 283, 72 S.E.2d at 696, 698 (majority,
Spratley, J. concurring), although at least one of those cases
has recognized that such a goal may be superseded by other
concerns, Jones, 194 Va. at 279, 72 S.E.2d at 697.

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 I also believe that if a jury is advised about all the

factors that might impact the amount of time that a defendant

actually serves, the jury will, in essence, be considering

factors outside its control, and in doing so, will not only be

intruding upon the discretion afforded to the executive branch

in administering sentences, 10 but also nullifying the legislative

goal underlying earned sentence credits and other forms of

sentence reduction. A jury “should not fix a defendant’s

punishment with the view of preventing the operation of laws

that have been duly enacted for the handling of a prisoner after

sentence in a way considered by the lawmakers to be in the best

interests of the public and of the prisoner.” Id. at 279, 72

S.E.2d at 696.

Furthermore, this Court has already partially addressed the

question before us. In Peterson v. Commonwealth, 225 Va. 289,

302 S.E.2d 520, cert. denied, 464 U.S. 865 (1983), the jury

asked whether it was possible “to give a life sentence without

parole.” Id. at 296, 302 S.E.2d at 525. In response, the trial

court advised that jury that its responsibility was to impose

such sentence as it deemed just and that it was not to concern

itself with what may thereafter happen. Id. at 296-97, 302

10
The doctrine of “separation of powers” prevents such an
intrusion, as the executive and judicial branches are to be kept

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S.E.2d at 525. The defendant in that case, who was charged with

capital murder in the commission of armed robbery and had two

previous convictions for armed robbery, did not object to the

court’s answer. However, he argued before this Court that Code

§ 53.1-151(B1), which became effective July 1, 1982, and made a

person convicted of three separate offenses of armed robbery

ineligible for parole, changed the rule addressed in Hinton. We

did not consider the effect of that statutory amendment but

reaffirmed “the principle . . . that it is improper to inform

the jury as to the possibility of parole.” Peterson, at 297,

302 S.E.2d at 525. We further stated that “it would have been

improper for the trial court sua sponte to have offered a jury

instruction based upon the 1982 amendment, even if, as [the

defendant] now contends, the amendment applied to him” and

rendered him parole ineligible. Id.

Thus, I believe that the rule enunciated in Coward and

consistently followed until today in non-capital felony cases

remains viable and should not be discarded. The rule preserves

our system of government premised on the separation of powers

between the branches of government and also takes into account

practical considerations about how much information a jury

as separate and apart as possible. Winchester & Strasburg R.R.
Co. v. Commonwealth, 106 Va. 264, 270, 55 S.E. 692, 694 (1906).
25
should receive regarding sentencing while still maintaining

fairness to both the defendant and the Commonwealth.

For these reasons, I dissent and would affirm the judgment

of the Court of Appeals.

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