COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Richmond, Virginia 

EDWARD HAKSPIEL 

 MEMORANDUM OPINION* BY 

v. Record No. 0662-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 19, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 Dwight F. Jones (Judith M. Barger; Office of 

the Public Defender, on briefs), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Amicus Curiae: Virginia College of Criminal 

Defense Attorneys (Marvin D. Miller, on 

briefs), for appellant. 

 Appellant, Edward Hakspiel, was convicted by a jury of 

aggravated manslaughter. During sentencing deliberations, the 

jury asked the court, "At what point in his sentence would he be 

eligible for parole, i.e., if we sentence him for three years 

when would he be eligible?" In response, the court instructed 

the jury, "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." 

The jury returned a sentence recommendation of seven years. 

Appellant contends that the court erred in refusing to instruct 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the jury concerning the abolition of parole in the Commonwealth. 

 We disagree and affirm appellant's sentence. 

 The disposition of this appeal is governed by the recent 

panel decisions of this Court in Mosby v. Commonwealth, 24 Va. 

App. 284, 482 S.E.2d 72 (1997), and Walker v. Commonwealth, 24 

Va. App. __, __ S.E.2d __ (1997). Appellant had no Due Process 

right under Simmons v. South Carolina, 512 U.S. 154 (1994), to 

have his jury instructed that parole has been abolished in 

Virginia with respect to all felony offenses. See Mosby, 24 Va. 

App. at 288-90, 482 S.E.2d at 73-74. And, under Virginia law, 

except in the limited circumstances addressed in Simmons, 

information concerning parole eligibility or ineligibility is not 

relevant evidence to be considered by the jury. E.g., id. at 

290, 482 S.E.2d at 74-75. Accordingly, we hold that the trial 

court properly instructed the jury.1

 Appellant's sentence is affirmed. 

Affirmed.

 

 1We find no support for appellant's further contention that 

the jury failed to follow the trial court's instruction in the 

present case. "[A] jury is presumed to follow the instructions 

given to it." Pugh v. Commonwealth, 233 Va. 369, 375 n.*, 355 

S.E.2d 591, 595 n.* (1987). Appellant reasons that because the 

jury posed a hypothetical question to the court which referenced 

a three-year term, but, ultimately imposed a longer term, the 

jury must have improperly and without accurate information 

considered the issue of parole. The conclusion appellant urges 

upon this Court rests on conjecture and speculation and is 

insufficient to rebut the presumption that the jury followed the 

court's instruction. 
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Benton, J., dissenting. 

 By statute the General Assembly has mandated 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. I would hold that 

the trial judge erred in refusing to inform the jury, in response 

to its question about the availability of parole, that parole has 

been abolished in Virginia.2

 I therefore dissent. 

 I. 

 While deciding the proper sentence to impose upon Edward 

Hakspiel, the jury sent to the trial judge the following written 

inquiry: 

 1. At what point in his sentence would he be 

eligible for parole, i.e., if we sentence him 

for three years when would he be eligible? 

 2. What about time he has already served? 

After the judge refused to answer the jury's question, the jury 

fixed Hakspiel's sentence at seven years of imprisonment. The 

jury's effort to determine Hakspiel's parole eligibility 

conclusively establishes that the jury was uninformed about the 

law and that the issue of parole had an impact on the jury's 

decision to impose the seven year sentence. 

 It is error not to instruct the jury when the jury may make 

 2"The essence of parole is release from prison, before the 

completion of sentence, on the condition that the prisoner abide 

by certain rules during the balance of the sentence." Morrissey 

v. Brewer, 408 U.S. 471, 477 (1972). 
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findings based upon a mistaken belief of the law. See Martin v. 

Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per 

curiam). After the jury asked about parole, the judge knew the 

jury was unaware that parole has recently been eliminated in 

Virginia. Under these circumstances, I would hold that the trial 

judge erred in refusing to answer the jury's question. See

Walker v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, 

___ (1997) (Benton, J., dissenting) ("The courts should not 

permit jurors to sentence based upon the erroneous belief that 

parole release still exists."). 

 To exacerbate matters, the trial judge responded to the 

question by telling the jury "not to concern [them]selves with 

what may happen" after the jury imposed its sentence. By 

referring to parole as something that "may happen," the judge 

implied that parole was, in fact, available. Moreover, the 

jury's decision to impose seven years of imprisonment after 

indicating that it was considering a three year term of 

imprisonment supports the inference that the jury probably 

concluded, though erroneously, that Hakspiel could be eligible 

for parole. 

 It is true, as the State points out, that 

the trial court admonished the jury that "you 

are instructed not to consider parole" and 

that parole "is not a proper issue for your 

consideration." Far from ensuring that the 

jury was not misled, however, this 

instruction actually suggested that parole 

was available but that the jury, for some 

unstated reason, should be blind to this 

fact. . . . While juries ordinarily are 

presumed to follow the court's instructions, 
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we have recognized that in some circumstances 

"the risk that the jury will not, or cannot, 

follow instructions is so great, and the 

consequences of failure so vital to the 

defendant, that the practical and human 

limitations of the jury system cannot be 

ignored." 

Simmons v. South Carolina, 512 U.S. 154, 170-71, 114 S. Ct. 2187, 

2197 (1994) (plurality opinion) (citations omitted). The trial 

judge's response to the jury's question did not aid in 

alleviating the confusion, and in fact, it may have misled the 

jury. Thus, I would hold that the trial judge erred by providing 

a jury instruction that was misleading. Cf. Blevins v. 

Commonwealth, 209 Va. 622, 628, 166 S.E.2d 325, 330 (1969). 

 II. 

 The majority opinion essentially relies upon this Court's 

recent decision in Mosby v. Commonwealth, 24 Va. App. 284, 482 

S.E.2d 72 (1997), and cases decided upon proceedings that arose 

under recently abandoned sentencing procedures and before parole 

was abolished. Although this Court in Mosby held "that in 

noncapital felony cases a trial judge is not required to instruct 

the jury that the defendant, if convicted, will be ineligible for 

parole," id. at 286, 482 S.E.2d at 72, I believe that decision 

fails to take into account the effect of the dramatic statutory 

changes in Virginia law. 

 In addition to abolishing parole, the General Assembly 

revised jury sentencing procedures to provide for bifurcated jury 

trials in non-capital felony prosecutions. See Code 
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§ 19.2-295.1. The new procedure under Code § 19.2-295.1 

fundamentally changed the way sentencing proceedings are now 

conducted before juries in prosecutions for non-capital offenses. 

 As a result, the reasons that previously justified depriving the 

jury of information concerning parole no longer exist. 

 Under the previous jury sentencing scheme, juries in 

non-capital cases would both determine guilt and impose a 

sentence after a single unitary trial. The only criteria juries 

could consider in sentencing were the range of punishment for the 

offense and the facts germane to the commission of the offense. 

"The theory of our [previous] unitary jury trial [procedure was] 

that the jury [was] to sentence the offense rather than the 

offender." Smith v. Commonwealth, 223 Va. 721, 725-26, 292 

S.E.2d 362, 365 (1982) (Russell, J., dissenting). Thus, evidence 

of aggravating and mitigating factors was not admissible before 

the jury at the trial of a non-capital criminal offense. See

Weeks v. Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 

(1994); Duncan v. Commonwealth, 2 Va. App. 342, 345-47, 343 

S.E.2d 392, 394-95 (1986). By contrast, under the new procedure, 

"the Commonwealth shall present the defendant's prior criminal 

convictions," Code § 19.2-295.1, and the defendant may introduce 

relevant mitigating evidence. See Pierce v. Commonwealth, 21 Va. 

App. 581, 466 S.E.2d 130 (1996). The new bifurcated procedure 

therefore permits an inquiry that is significantly broader in 

scope. 
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 In addition, within the context of the former unitary trial 

procedure, the Supreme Court enunciated the rule that in a 

non-capital jury sentencing "the trial [judge] should not inform 

the jury that its sentence, once imposed and confirmed, may be 

set aside or reduced by some other arm of the State." Hinton v. 

Commonwealth, 219 Va. 492, 495, 247 S.E.2d 704, 706 (1978). 

Significantly, the Supreme Court noted that "[t]he aim of the 

rule . . . [was] to preserve, as effectively as possible, the 

separation of [the] functions [of the judicial and executive 

branches] 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." Id. at 496, 247 S.E.2d at 706. In 

crafting the new sentencing scheme, however, the General Assembly 

eliminated parole -- the mechanism utilized by the executive 

branch to reduce juries' sentences. Thus, the need to separate 

the sentencing function of the judiciary from the role of the 

executive branch in granting parole is no longer a consideration. 

 The Supreme Court also reasoned in Jones v. Commonwealth, 

194 Va. 273, 72 S.E.2d 693 (1952), that a jury should not be 

informed of parole eligibility because "[s]uch a practice would 

permit punishments to be based on speculative elements, rather 

than on the relevant facts of the case, and would lead inevitably 

to unjust verdicts." Id. at 279, 72 S.E.2d at 697. However, 

because the law today is unambiguous -- parole is completely 
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unavailable to all convicted felons -- the jury's consideration 

of that fact would not be speculative. On the contrary, 

informing the jury of the now certain fact that parole has been 

abolished would eliminate the very speculation that previously 

concerned the Supreme Court. 

 In view of the legislature's abolition of the long standing 

tradition of parole and the new bifurcated jury sentencing 

procedure, we mislead jurors and prejudice defendants when we 

fail to inform jurors that parole is no longer available and 

cannot be used to temper whatever sentence the jury opts to levy. 

 I dissent.