Fishback v. Com.

• Decision Date: 09 June 2000
• Docket Number: Record No. 991615.
• Citation: 532 S.E.2d 629,260 Va. 104
• Parties: Richard David FISHBACK v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

532 S.E.2d 629

260 Va. 104

Richard David FISHBACK v. COMMONWEALTH of Virginia.

Record No. 991615.

Supreme Court of Virginia.

June 9, 2000.

S. Jane Chittom, Richmond (Elwood Earl Sanders, Jr., Woodbridge, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ and KINSER, JJ., and POFF, Senior Justice.

KOONTZ, Justice.

In this appeal, we primarily consider whether a defendant in a non-capital felony trial is entitled to have the jury instructed that, pursuant to Code § 53.1-165.1, parole has been abolished in Virginia.

BACKGROUND

Because our review is limited to the issue of whether the trial court erred in failing to instruct the jury on the abolition of parole, a succinct statement of the facts, presented in the light most favorable to the Commonwealth as the party prevailing below, will suffice.

On March 24, 1997, the grand jury of Fauquier County returned indictments against Richard David Fishback charging him with robbery, Code § 18.2-58, three counts of abduction, Code § 18.2-47, and four related firearm charges, Code § 18.2-53.1. During a two-day bifurcated jury trial conducted in the Circuit Court of Fauquier County, the Commonwealth's evidence during the guilt-determination phase showed that on the afternoon of January 7, 1997, Fishback, armed with a handgun, robbed an employee of a convenience store and unlawfully detained two store employees and a customer with intent to deprive them of their personal liberty. Based upon the evidence, the jury convicted Fishback of all eight felony offenses charged in the indictments.

During the penalty-determination phase, Fishback's counsel proffered jury instruction "No. S" stating that "there is no parole in Virginia." The trial court inquired whether counsel had "authority for that instruction?" Counsel replied that she did not have authority for this instruction, but asserted that it "is just the current state of the law now." The trial court ruled that lilt is not an approved instruction," refused to give it to the jury, and noted counsel's objection.

The trial court then addressed instruction "No. T" proffered by Fishback's counsel which directed the jury to "assume that [the defendant] will actually serve all of the jail or prison time you find to be an appropriate sentence and you are not otherwise to concern yourselves with what may happen afterwards." The trial court again inquired whether counsel had authority for this instruction. She replied that she had "prepared this instruction knowing that many times a jury returns with questions about the amount of time a person will serve and probation and things of that nature. That is what this instruction was designed by me to address." The trial court refused the instruction, but noted that "MI' the jury sends a question ... about ... probation or parole or how much time [Fishback] is going to serve . then I will deal with that issue should it arise."

During its deliberations on sentencing, the jury sent a note to the trial court, which read as follows:

Question:

1. Will these terms run Consecutively? Concurrently? 2. Can the sentence be reduced by the judge. 3. Can he qualify for parole Robbery? Abduction? Firearms?

After a brief discussion of the questions with both counsel, the trial court indicated that it would "propose giving the model [jury] instruction" the Commonwealth had prepared. This instruction stated that "[h]aving found [Fishback] guilty, 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." Fishback's counsel did not object to this instruction or renew her request that the trial court instruct the jury that parole had been abolished.

After further deliberations, the jury returned verdicts sentencing Fishback to terms of imprisonment of thirty years for robbery, seven years for each of the abductions, and a total of eighteen years for the firearm offenses. Following receipt of a pre-sentence report, the trial court imposed the jury's sentences to run consecutively, but suspended fifty-one years of the sentences on condition that Fishback serve ten years probation following his release.

Fishback filed a petition for appeal in the Court of Appeals asserting issues related to the sufficiency of the evidence to prove abduction and the firearm offenses predicated on abduction, the denial of a suppression motion, the refusal of an instruction defining abduction, and the refusal of the instruction concerning the abolition of parole. By order dated November 13, 1998, the Court of Appeals awarded an appeal for the first four of these issues, but denied an appeal on the parole issue. In that order, the Court of Appeals, quoting from Briscoe v. Commonwealth, 26 Va.App. 415, 417, 494 S.E.2d 898, 899 (1998), noted that it had previously held that "a trial court is not required to instruct the jury on a defendant's eligibility for parole in non-capital cases." After oral argument on the issues for which an appeal had been awarded, the Court of Appeals affirmed Fishback's convictions in an unpublished opinion. Fishback v. Commonwealth, Record No. 1377-98-4, 1999 WL 1129966 (June 15, 1999).

Fishback filed a petition for appeal in this Court reasserting the issues reviewed by the Court of Appeals in its order and opinion. We awarded Fishback an appeal limited to the issue of whether the trial court "erred in refusing appellant's proffered penalty phase instruction that parole has been abolished in Virginia."¹

DISCUSSION

In Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (1999), we noted that the abolition of parole pursuant to Code § 53.1-165.1 and the exclusion of prisoners serving life sentences for class one felonies from being eligible for geriatric release pursuant to Code § 53.1-40.01 rendered a defendant convicted of capital murder parole-ineligible. See id. at 368 n. 7, 519 S.E.2d at 612 n. 7. Reviewing the rule, first stated in Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 799 (1935), that a jury should not be instructed upon the possibility of parole, we held that "[t]he Coward rule simply does not address [the] unique situation" in which a jury must elect between a death sentence and a sentence of life without possibility of parole. Yarbrough, 258 Va. at 372, 519 S.E.2d at 615. Accordingly, we further held that a defendant convicted of capital murder was entitled to an instruction that he would be parole-ineligible if sentenced to life imprisonment.² Id. at 374, 519 S.E.2d at 616.

In rendering our decision in Yarbrough, we recognized "that the limitations placed upon the availability of parole by Code §§ 53.1-40.01 and 53.1-165.1 may call into question the continued viability of the Coward rule in a non-capital felony case." Id. at 373, 519 S.E.2d at 615. However, we emphasized that our decision in Yarbrough was "limited to the effect of Code § 53.1-165.1 on capital murder prosecutions." Id. Accordingly, this appeal presents the first opportunity since that decision for this Court to examine the effect of the statutory abolition of parole on the Coward rule in non-capital cases.

Our decision in Yarbrough is not diapositive of the issue presented in this case. This is so because a defendant convicted of a noncapital felony committed after the effective date of Code § 53.1-165.1, while no longer eligible for parole, may nonetheless be eligible for geriatric release, Code § 53.1-40.01, and may also qualify for a reduction in sentence through an earned sentence credit calculation, Code §§ 53.1-202.2 et seq., commonly referred to as a "good behavior credit." Although neither of these provisions is defined as "parole" in the Code, they are nonetheless respectively a form of early release and a form of sentence reduction available to a prisoner under the administration of the executive branch of government.

Discussing the policy underlying the Coward rule, we have noted that "blinder our system, the assessment of punishment is a function of the judicial branch of government, while the administration of such punishment is a responsibility of the executive department. The aim of the rule followed in Virginia is to preserve, as effectively as possible, the separation of those functions 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." Hinton v. Commonwealth, 219 Va. 492, 496, 247 S.E.2d 704, 706 (1978). Accordingly, unlike the unique circumstances of the sentencing decision to be made by a jury in a capital murder trial, where the executive branch will have no discretion to reduce a life sentence through parole or geriatric release, it would be inaccurate to inform a jury that a defendant convicted of a lesser felony would not be eligible for early release in every instance.

One of the conundrums created by the interaction of Code §§ 53.1-40.01, 53.1-165.1, and 53.1-202.2 et seq. is that, depending on the length of the sentences imposed and the age of the defendants, some persons convicted of non-capital felonies will not be eligible for any form of early release, while others may be able to benefit from geriatric release, good behavior credits, or both. Moreover, it is apparent on the record of this case, and of countless others reviewed by this Court and the Court of Appeals, see, e.g., Clagett v. Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996)

; Mosby v. Commonwealth, 24 Va.App. 284, 287, 482 S.E.2d 72, 73 (1997), that juries frequently have no comprehension of the current state of parole eligibility in this Commonwealth, but remain concerned that their sentencing decisions will be subjected to extensive reductions by executive action. See,...