COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpa trick, Judge Willis and Senior Judge Overton Argued at Alex andria, 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 COUR T OF FAIRFAX COUNTY Jonathan C. Th acher, 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 abductio n. On appeal, he contends the jury should have been instructed that parole in Virg inia has been abolished. We agree, reverse his sent ence and remand to the trial court for a new sent encing hearing. I. On November 17, 1999, appe llant was conv icted of the second-degree murder and abductio n of Justin Radi gan. The jury was then instructed re garding the pena lty phase. Appellant did not request an instruct ion on the abolition of parole. During the course of delibe rations the jury posed two question s. The first inquired "At what po int in a sentence wi ll the defendant besubject to parole? In other words, what ar e the parame ters for parole eligibility?" The trial court, Commonwealth's attorney, and defense counse l agreed that th e jury should be instructed, "You have found the De fendant guilty of murder in the second degree and abduction. You should impose su ch punishment as you feel is just upon the evidence and within th e instructio ns of the Court. You are not to concern yo urselves with what may happen afterwards." Th is instruction ac curately reflecte d the law as of the date of trial. After furthe r deliberati ons, the jury imposed a sentence of fi ve years on the second-d egree murder charge and ten years on the abduct ion charge. On February 9, 2000, the trial judge imposed th e sentence recommende d by the jury. On February 11, 2000, appellant filed a motion to set aside the verdict and reques ted a new senten cing hearing be cause the jury should have been instru cted that parole had been abolished. On February 22, 2000, th e trial court de nied appellan t's motion. Appellant appe als from th is denial. II. On June 9, 2000, while appellant' s case was pe nding before this Court, the Supreme Court of Virginia decided Fishback v. Commonwealth , 260 Va. 104, 532 S.E.2d 629 (2000), wh ich 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-capita l felony offenses committed on or after January 1, 1995 pursuant to Code - 2 -§ 53.1-165 .1." Fishback , 260 Va. at 115-16, 53 2 S.E.2d at 634. "[B]ecause this is a ne w rule of crim inal procedure it is limited prospectively to those cases not yet final on this date." Id. at 116, 532 S.E.2d at 63 4 (emphasis adde d). Cases pe nding 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 deli neated as a gr ant for appeal on June 9, 2000, the Commonwe alth contends that appell ant waived his right to raise this issue becaus e he did not object to the instructions given to the jury and did not raise the issue until tw o 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; - 3 -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 instru ction as a basis for preservi ng his right to appeal the issue. The Court focused upon the tria l court's respon sibility to instruct the jury, holding that "'[i]t belongs to the [t rial] court to instruct the jury as to the law, whenever they require inst ruction, or either of the part ies request it to be given.'" Id. at 117, 532 S.E.2d at 63 5 (quoting Thornton v. Commonwealth , 65 Va. (24 Gratt.) 657, 662 (1874) (emphasis added) ). This duty arises even though appellant fail ed to object to th e instructio n at the sentencing hearing. See Campbell v. Commonwealth , 14 Va. App. 988, 991, 421 S.E.2d 652, 654 (1 992). Therefore, appellant did not waive his righ t 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 prof fered two jury instruct ions, one st ating that "there is no parole in Virginia" and the other stating that the jury "assume that [the defendant] will actu ally serve all of the jail or prison time you find to be an appropriate se ntence and you are not otherwise to concern your selves with what may happen afterwards." Id. at 109, 532 S.E.2d at 630. The trial court rejected both instru ctions. During deli berations the jury inquired of the court, "Can he qualify fo r parole[?]" The trial - 4 -court instructed the jury, "[h]av ing found [Fishbac k] guilty, you should impose such pu nishment as yo u feel is just under the evidence and within the instructions of the Court. You are not to concern yourselv es with what may ha ppen afterwards." Id. at 110, 532 S.E.2d at 631. Fishback's attorney "d id not object to this instruction or renew he r request that the tria l court inst ruct the jury that parole ha d been abolished." Id. In this case, the question propounded by the jury and the response given by the court without ob jection from appellant are factually simila r to those in Fishback . The sole difference is that appellant, in the instant case, did not request an instruction re garding the abolit ion of parole un til post-trial motions. 1 However, appellan t's failure to requ est 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 proces s, is subject to the new in struction 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 para meters for parole eligibility?" This question clearly indicated to the trial court that the jury as sumed that parole wo uld be available to appellant. Th is is the prec ise instance th e 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

.

- 5 -addressed by stating th at the jury required instruction from the court as to the "new rule" of law in pe nding cases. The trial court's response in this case failed to fulfill the re quirement of Fishback because it left th e jury with the be lief that parole would be available. Even though appellant failed to object or raise the issue du ring trial, the trial co urt had an affirmative duty to properly inst ruct the jury about th e matter because they evidenced a need for instruction by posing the qu estion to the court. Id. ; see also Campbell v. Commonwealth , 14 Va. App. 988, 991, 421 S.E.2d 652, 654 (1992). Thus, th is case is clearly within the time fram e and class of cases contemplated by the Supreme Court in its strictures for ad dressing the parole eligibility qu estion. Appellan t'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 cour t for a new sentencing hearing. Reversed and remanded.

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