                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


KEVIN CHASE NEWMAN
                                                MEMORANDUM OPINION *
v.      Record No. 0369-96-2                 BY JUDGE MARVIN F. COLE
                                                    JULY 1, 1997
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                        Charles L. McCormick, Judge
               Michael Morchower; Christopher C. Booberg
               (Morchower, Luxton & Whaley, on brief), for
               appellant.

               Ruth Ann Morken, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



        Kevin Chase Newman (defendant) was convicted in a jury trial

of seven felonies.      He contends that the trial court erred in

refusing to inform the jury that his sentence would be served

according to the truth-in-sentencing law which took effect in

1995.       We affirm the convictions.

        After the jury found the defendant guilty of all charges

against him, it retired to deliberate upon the punishment.      The

jury sent the following note to the trial judge:      "Has the new

violent offender law gone into effect in Virginia, and can the

accused get paroled?"      The trial judge made the following

response to the question:
               [T]he answer to that [question] is that
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
             I am not permitted to give you an answer.
                  I can only say to you that you are to do
             as you think appropriate insofar as
             sentencing is concerned, and that you [are]
             not to concern yourself with what might
             happen thereafter.
                  In other words, you are to impose such
             sentence as you think is appropriate under
             the circumstances of this case, and you are
             not to concern yourselves with what might
             happen after that.
                  That is the answer that the Court has to
             give you under the circumstances.


     The defendant argues that the case law precluding a parole

instruction to the jury applies to situations occurring before

parole was abolished in January 1995, when Code § 53.1-165.1 was

passed.   He asserts that the refusal of the trial court to inform

the jury of the current sentencing laws violated his due process

rights under the federal constitution, citing Simmons v. South

Carolina, 512 U.S. 154 (1994), as authority for his position.

     We find that the question raised in this case was recently

addressed in Mosby v. Commonwealth, 24 Va. App. 284, 482 S.E.2d

72 (1997).    At the sentencing phase, Mosby proffered an

instruction telling the jury that they were permitted to consider

that Virginia has abolished parole.     The trial judge refused the

instruction.    After deliberating on the sentence, the jury

tendered the following question to the trial judge:     "'[W]e [are]

unclear as to the status of parole in the state of Virginia and

[would] like an answer to that.'"      Id. at 287, 482 S.E.2d at 73.

The trial judge responded by stating:      "'[T]he status of the law

is that at this time the legislature has set a range [of



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punishment] that you are to consider, that range has been given

to you in your instructions and what happens after that is set by

other [parameters] that are not to concern you. . . .'"     On

appeal, we upheld the trial judge's decision and declared:
          The Simmons decision clearly requires that
          juries in Virginia must be informed of parole
          ineligibility when the Commonwealth argues
          future dangerousness in capital cases. See
          Mickens v. Commonwealth, 249 Va. 423, 457
          S.E.2d 9 (1995). However, Simmons imposes no
          such requirement in noncapital cases.

Id. at 290, 482 S.E.2d at 74.

     In Mosby, we further said that because Simmons did not

apply, "the established Virginia law controls; a trial judge is

not required to instruct juries on the status of a defendant's

eligibility for parole."   Id. at 290, 482 S.E.2d at 74-75

(citation omitted).

     As in this case, the defendant in Mosby argued that recent

legislative changes in the law reflected a shift in Virginia's

former policy which should require that juries now be told of a

convicted felon's parole eligibility.   This Court, in Mosby, did
not accept this assertion and held that Code § 19.2-295.1

contained no provisions requiring that the jury be told of a

defendant's parole eligibility.

     We find that the facts in Mosby are substantially similar to

the circumstances in this case and that the Mosby decision is

binding upon us.   Accordingly, we affirm the defendant's

convictions.



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    Affirmed.




4
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. 1    I therefore dissent.
                                   I.

     While deciding the proper sentence to impose upon Newman,

the jury asked the trial judge whether Newman could "get

paroled."   After the judge refused to answer the jury's question,

the jury imposed the maximum terms of imprisonment for each

offense.    The jury's effort to determine Newman'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 maximum prison sentences.

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

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
     1
      "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).




                                    5
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 [themselves] with

what might happen []after" the jury imposed its sentence.   By

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

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

jury's decision to impose the maximum terms of imprisonment

supports the inference that the jury probably concluded, though

erroneously, that Newman 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,
          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



                                  6
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

§ 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




                                   7
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.

     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).




                                   8
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

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




                                   9
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.




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