COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Willis and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

TIMOTHY JERMAN 

 OPINION BY 

v. Record No. 1183-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 FEBRUARY 13, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

 John A. Keats for appellant. 

 Robert H. Anderson, III, Senior Assistant 

Attorney General (Mark L. Earley, Attorney 

General, on brief), for appellee. 

 Timothy Jerman (appellant) was convicted in a jury trial of 

second-degree murder and abduction. On appeal, he contends the 

jury should have been instructed that parole in Virginia has been 

abolished. We agree, reverse his sentence and remand to the trial 

court for a new sentencing hearing. 

I. 

 On November 17, 1999, appellant was convicted of the 

second-degree murder and abduction of Justin Radigan. The jury 

was then instructed regarding the penalty phase. Appellant did 

not request an instruction on the abolition of parole. During the 

course of deliberations the jury posed two questions. The first 

inquired "At what point in a sentence will the defendant be 
subject to parole? In other words, what are the parameters for 

parole eligibility?" The trial court, Commonwealth's attorney, 

and defense counsel agreed that the jury should be instructed, 

"You have found the Defendant guilty of murder in the second 

degree and abduction. You should impose such punishment as you 

feel is just upon the evidence and within the instructions of the 

Court. You are not to concern yourselves with what may happen 

afterwards." This instruction accurately reflected the law as of 

the date of trial. After further deliberations, the jury imposed 

a sentence of five years on the second-degree murder charge and 

ten years on the abduction charge. On February 9, 2000, the trial 

judge imposed the sentence recommended by the jury. On 

February 11, 2000, appellant filed a motion to set aside the 

verdict and requested a new sentencing hearing because the jury 

should have been instructed that parole had been abolished. On 

February 22, 2000, the trial court denied appellant's motion. 

Appellant appeals from this denial. 

II. 

 On June 9, 2000, while appellant's case was pending before 

this Court, the Supreme Court of Virginia decided Fishback v. 

Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), which overruled 

Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 (1935). The 

Court held that "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 

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§ 53.1-165.1." Fishback, 260 Va. at 115-16, 532 S.E.2d at 634. 

"[B]ecause this is a new rule of criminal procedure it is limited 

prospectively to those cases not yet final on this date." Id. at 

116, 532 S.E.2d at 634 (emphasis added). Cases pending before 

this Court on June 9, 2000 are governed by Fishback because they 

are not yet final. See Hartigan v. Commonwealth, 32 Va. App. 873, 

531 S.E. 2d 63 (2000). 

 Although appellant's case was pending in this Court with the 

parole instruction delineated as a grant for appeal on June 9, 

2000, the Commonwealth contends that appellant waived his right to 

raise this issue because he did not object to the instructions 

given to the jury and did not raise the issue until two days after 

the trial judge imposed the jury's sentence. The Commonwealth 

relies upon the Supreme Court's discussion of Fishback's 

proposed jury instructions to support its argument. We find no 

merit to this argument. We note that Fishback's proposed 

instruction was an improper statement of the law and, thus, 

unless the principle of law was "materially vital to [the] 

defendant" it was not reversible error for the trial court to 

have refused to correct the defective instruction and give it in 

proper form. Atkins v. Commonwealth, 257 Va. 160, 178, 510 

S.E.2d 445, 456 (1999). However, although the Court found that 

the "jury's knowledge of the abolition of parole was materially 

vital" to Fishback's case, the Court did not hold that the trial 

judge erred in failing to correct the defective statement; 

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rather, the Court stated that the "deficiencies in [Fishback's] 

proffered instructions . . . do not bar our consideration of the 

issue." Fishback, 260 Va. at 117, 532 S.E.2d at 635. Thus, the 

Court did not rely upon Fishback's proposed jury instruction as a 

basis for preserving his right to appeal the issue. The Court 

focused upon the trial court's responsibility to instruct the 

jury, holding 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.'" Id. at 117, 532 

S.E.2d at 635 (quoting Thornton v. Commonwealth, 65 Va. (24 

Gratt.) 657, 662 (1874) (emphasis added)). This duty arises even 

though appellant failed to object to the instruction at the 

sentencing hearing. See Campbell v. Commonwealth, 14 Va. App. 

988, 991, 421 S.E.2d 652, 654 (1992). Therefore, appellant did 

not waive his right to raise this issue when he failed to object 

to the instruction given to the jury. 

 The facts of this case are similar to Fishback. In Fishback, 

the appellant proffered two jury instructions, one stating that 

"there is no parole in Virginia" and the other stating that the 

jury "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." Id. at 109, 532 S.E.2d at 630. The trial court 

rejected both instructions. During deliberations the jury 

inquired of the court, "Can he qualify for parole[?]" The trial 

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court instructed the jury, "[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." Id. at 110, 

532 S.E.2d at 631. Fishback's attorney "did not object to this 

instruction or renew her request that the trial court instruct the 

jury that parole had been abolished." Id.

 In this case, the question propounded by the jury and the 

response given by the court without objection from appellant are 

factually similar to those in Fishback. The sole difference is 

that appellant, in the instant case, did not request an 

instruction regarding the abolition of parole until post-trial 

motions.1 However, appellant's failure to request an instruction 

does not end our analysis. Fishback clearly states that any case 

"not yet final," i.e., still in the breast of a proper trial court 

or appellate process, is subject to the new instruction 

requirements. Id. at 116, 532 S.E.2d at 634. The jury inquired 

of the court, "At what point in a sentence will the defendant be 

subjected to parole? In other words, what are the parameters for 

parole eligibility?" This question clearly indicated to the trial 

court that the jury assumed that parole would be available to 

appellant. This is the precise instance the Supreme Court 

 1

 As previously indicated, Fishback's proposed jury 

instruction regarding the abolition of parole was not 

significant to the Court's decision in Fishback. 

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addressed by stating that the jury required instruction from the 

court as to the "new rule" of law in pending cases. The trial 

court's response in this case failed to fulfill the requirement of 

Fishback because it left the jury with the belief that parole 

would be available. Even though appellant failed to object or 

raise the issue during trial, the trial court had an affirmative 

duty to properly instruct the jury about the matter because they 

evidenced a need for instruction by posing the question to the 

court. Id.; see also Campbell v. Commonwealth, 14 Va. App. 988, 

991, 421 S.E.2d 652, 654 (1992). Thus, this case is clearly 

within the time frame and class of cases contemplated by the 

Supreme Court in its strictures for addressing the parole 

eligibility question. Appellant's case was "not yet final" and 

the "new rule" is applicable. Accordingly, appellant's sentence 

will be vacated and the case remanded to the trial court for a new 

sentencing hearing. 

 Reversed and remanded.

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