                   COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judges Annunziata and Agee


WILLIAM TED WADE
                                           MEMORANDUM OPINION * BY
v.   Record No. 1790-00-3                   JUDGE G. STEVEN AGEE
                                              FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                  William N. Alexander, II, Judge

           (Timothy W. Allen, on brief), for appellant.
           Appellant submitting on brief.

           (Mark L. Earley, Attorney General; Linwood T.
           Wells, Jr., Assistant Attorney General, on
           brief), for appellee. Appellee submitting on
           brief.


     William Ted Wade (Wade) was convicted in a jury trial of

three counts of distribution of cocaine.    On appeal, Wade

contends the trial court erred in refusing to grant his motion

for a new sentencing hearing.   He contends he was entitled to a

new sentencing hearing because the jury was not instructed that

parole had been abolished in Virginia.   We disagree and affirm

the trial court's denial of the motion for a new sentencing

hearing.




     * 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.

     On May 10, 2000, a Franklin County jury found Wade guilty

of three counts of distribution of cocaine.      The jury was not

instructed that Wade would not be eligible for parole.      Wade did

not submit an instruction relating to his parole eligibility for

the court's consideration; he did not object to the instructions

given by the trial court, and the jury made no inquiry to the

trial court regarding the effect of parole or any other issue,

which might affect the sentence imposed.      After its sentencing

deliberations, the jury recommended a sentence of twenty years

and a $50,000 fine on each count.

     Wade subsequently moved the trial court for the preparation

of a pre-sentence report.    The trial court granted the motion

and set the formal sentencing for June 23, 2000.      Two weeks

prior to Wade's formal sentencing, the Supreme Court of Virginia

rendered its decision in Fishback v. Commonwealth, 260 Va. 104,

532 S.E.2d 629 (2000), on June 9, 2000.       At his June 23, 2000

appearance for formal sentencing, Wade moved for a new

sentencing hearing alleging the jury was not instructed that

parole had been abolished in the Commonwealth as required by

Fishback.   The trial court continued sentencing to June 29,

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2000, to consider the motion.     On the 29th, the trial court

overruled Wade's motion and imposed the jury's recommended

sentence.

                            II.   Analysis

     Wade contends on appeal that the trial court erred in

refusing to grant his motion for a new sentencing hearing.       He

argues the jury must be instructed on the abolition of parole

since his case was not yet final when the Supreme Court decided

Fishback.   On that basis, Wade argues his entitlement to the

jury instruction did not require counsel to timely request such

an instruction or the jury inquiring as to the possibility of

parole.   We disagree and find Wade's ultimate 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.   The jury during its deliberations, however, submitted

to the trial court the following inquiry regarding parole:       "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 have found the defendant guilty of
            murder in the second degree and abduction.
            You should impose such punishment as you

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          feel is just under the evidence and within
          the instructions of the Court. You are not
          to concern yourselves with what might happen
          afterwards.

     After the sentencing hearing, counsel for the defendant

asserted that the jury's concern whether Jerman would be

eligible for parole prejudiced its sentencing deliberations.

Counsel contended that the jury's inquiries demonstrated it

assumed parole and felt the defendant was deserving of less than

the sentences it determined.   The trial court imposed the

sentences the jury determined.

     Jerman appealed his conviction to this Court.   We vacated

the defendant's sentence and remanded the case to the trial

court for a new sentencing proceeding, holding that the trial

court had erred in failing to instruct the jury on the abolition

of parole, citing Fishback.    The Commonwealth appealed to the

Supreme Court.

     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 94,

556 S.E.2d at ____.   It held that its decision in Fishback, for

a jury to be instructed on the abolition of parole, does not

circumscribe the application of procedural rules.    Id.   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 any objections to the trial


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court's instruction and to ask the court for any other

instructions on the subject that he deems necessary.       Id. at 94,

556 S.E.2d at ___.

     In light of the Supreme Court's decision in Jerman, we find

Wade's challenge to the lack of a jury instruction on the

abolition of parole to be procedurally barred pursuant to Rule

5A:18.

     It is clear from the record that Wade failed to request any

jury instruction regarding parole or to object to the

instructions given at trial.    We, therefore, are barred from

considering the issue of whether the trial court erred in not

instructing the jury on the abolition of parole.

            No ruling of the trial court . . . will be
            considered as a basis for reversal unless
            the objection was stated together with the
            grounds therefor at the time of the ruling,
            except for good cause shown or to enable the
            Court of Appeals to attain the ends of
            justice.

Rule 5A:18.    "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).

            The laudatory purpose behind Rule 5A:18
            . . . is to require that objections be
            promptly brought to the attention of the
            trial court with sufficient specificity that
            the alleged error can be dealt with and
            timely addressed and corrected when


                                 - 5 -
          necessary. The rules promote orderly and
          efficient justice and are to be strictly
          enforced.

Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269,

272 (1997).   "[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 oneself of the

exception, a defendant must affirmatively show that a

miscarriage of justice has occurred."    Redman, 25 Va. App. at

221, 487 S.E.2d at 272 (citing Mounce v. Commonwealth, 4 Va.

App. 433, 436, 357 S.E.2d 742, 744 (1987)).

     Wade makes no argument on the application of Rule 5A:18 or

the ends of justice exception.    We see no basis to apply the

ends of justice exception to this appeal.

     A trial court, generally, does not have the affirmative

duty to instruct the jury, sua sponte, on a legal principle when

the parties fail to request such instruction and the jury does

not evidence a need to be instructed.    Fishback does not amend

this practice.

     For these reasons, we find this appeal procedurally barred,

and the trial court's denial of the motion for a new sentencing

hearing is affirmed.

                                                          Affirmed.




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