COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Agee 

Argued at Salem, Virginia 

AMPAZZIO WALLETI WARREN, S/K/A 

 AMPAZZO WARREN 

 MEMORANDUM OPINION* BY 

v. Record No. 2831-00-3 JUDGE G. STEVEN AGEE 

 APRIL 2, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 William R. Light for appellant. 

 (Randolph A. Beales, Attorney General; 

H. Elizabeth Shaffer, Assistant Attorney 

General, on brief), for appellee. Appellee 

submitting on brief. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Ampazzio Walleti Warren (Warren) was convicted in a jury 

trial of possession of cocaine with the intent to distribute, in 

violation of Code § 18.2-248, possession of a firearm while 

simultaneously in possession of cocaine, in violation of Code 

§ 18.2-308.4, and carrying a concealed weapon, second offense, 

in violation of Code § 18.2-308. On appeal, Warren contends the 

trial court erred in failing to instruct the jury that parole 

had been abolished. We find no error by the trial court and 

affirm Warren's sentence. 
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. 

 A Danville jury found Warren guilty of possession of 

cocaine with the intent to distribute, possession of a firearm 

while simultaneously in possession of cocaine and carrying a 

concealed weapon. During the penalty phase of the trial, the 

jury was not instructed that parole had been abolished in 

Virginia and, therefore, Warren would not be eligible for 

parole. Warren did not submit a jury instruction relating to 

parole eligibility for the court's consideration, and he did not 

object to the jury instructions given by the trial court. 

 Shortly after jury deliberations began, the jury submitted 

a written inquiry to the trial court, which the trial judge 

answered to the jury as follows: 

[W]hat percentage of the sentence must be 

served? The response to that question is 

that you are not to concern yourself with 

what may happen to the defendant, after he 

has been sentenced. 

 Warren did not object to the trial judge's reply to the 

jury's inquiry, nor did he request that the jury be instructed 

that parole had been abolished. 

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II. Analysis 

 Warren contends on appeal that the trial court erred in 

failing to instruct the jury on the abolition of parole. He 

argues he was entitled to a jury instruction on the abolition of 

parole pursuant to Fishback v. Commonwealth, 260 Va. 104, 532 

S.E.2d 629 (2000). We disagree and find Warren's 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. Also, as in the case at bar, the Jerman jury 

submitted an inquiry regarding parole to the trial court: "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 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 might happen 

afterwards. 

The trial court imposed the sentences the jury determined. 

 Jerman appealed his convictions to this Court, citing 

Fishback. We vacated the defendant's sentences and remanded the 

case to the trial court for a new sentencing proceeding, holding 

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that the trial court had erred in failing to instruct the jury 

on the abolition of parole. 

 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 

93-94, 556 S.E.2d at 757. It held that its decision in Fishback

does not circumscribe the application of procedural rules. Id.

at 94, 556 S.E.2d at 758. 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 his 

objections to the trial court's instruction and to ask the court 

for any other instructions he deems necessary. Id. at 94, 556 

S.E.2d at 757-58. 

 It is clear from the record that Warren failed to request 

any jury instruction regarding parole or to object to the 

instructions given at trial. We, therefore, are barred by Rule 

5A:18 from considering the issue of whether the trial court 

erred in not instructing the jury on the abolition of parole. 

 "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). "[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 

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oneself of the exception, a defendant must affirmatively show 

that a miscarriage of justice has occurred." Redman v. 

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) 

(citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 

742, 744 (1987)). 

 Warren has made no showing that a miscarriage of justice 

has occurred in this case. In view of the clear and unequivocal 

decision by the Supreme Court in Jerman under Rule 5:25, we see 

no basis to apply the ends of justice exception to this appeal. 

 For these reasons, we find this appeal procedurally barred, 

and Warren's sentences are affirmed. 

Affirmed.

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