                  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.


     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.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                          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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