                    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.
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.



     1
      We 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.




                               - 2 -
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).




                                  - 3 -
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,


                                - 4 -
             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




                                 - 5 -
§ 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.




                                - 6 -
     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



                                 - 7 -
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.




                               - 8 -
