Petition for Writ of Certiorari — Douglas Fauconier, Petitioner v. Virginia

Supreme Court briefJul 10, 2024

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APPENDIX A

FILED: February 5, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6116

(l:22-cv-00460-TSE-IDD)

DOUGLAS FAUCONIER

Plaintiff - Appellant

COMMONWEALTH OF VIRGINIA

Defendant - Appellee

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

J his judgment shall take effect upon issuance of this court's mandate in

accorda nee with Fed. R. App P. 41

/s/ NWAMAKA ANOWI. CLERK

A. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6116

DOUGLAS FAUCONIER,

Plaintiff - Appellant,

COMMONWEALTH OF VIRGINIA,

Defendant - Appellee.

Appea) from the United States District Court for the Eastern District of Virginia, at

Alexar dria. T. S. Ellis, 111, Senior District Judge. (1:22-cv-00460-TSE-IDD)

Decided: February 5, 2024

Submitted: January 30, 2024

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dough s Leigh Fauconier, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

A.2

PER CURIAM:

Douglas Fauconier appeals the district court’s order dismissing his 42 U.S.C. § 1983

comp aint. We have reviewed the record and find no reversible error. Accordingly, we

affirrr the district court’s order. See Fauconier v. Virginia, No. l:22-cv-00460-TSE-IDD

(E.D. Va. Jan. 4, 2023). We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aiid the decisional process

AFFIRMED

A.3

FILED: March 12, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6116

(l:22-cv-00460-TSE-IDD)

DOUGLAS FAUCONIBR

Plaintiff - Appellant

COMMONWEALTH OF VIRGINIA

Defendant - Appellee

ORDER

The petition for rehearing en banc was circulated to the full court. No judge

requested a poll under Fed. R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/Nwamaka Anowi, Clerk

A.4 '■

APPENDIX B

WOOC 1X4-1,V-UU40U- I C3t-IUU

Document 25 Filed 01/04/23 Page l of 1 PagelD# lio

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Douglas Fauconier,

Plaintiff,

)

Comnonwealth of Virginia,

Defendant.

l:22cv460 (TSE/IDD)

FINAL ORDER

For the reasons stated in the accompanying Memorandum Opinion, defendant’s motion to

dismiss [Dkt. No. 16], is GRANTED; and it is further

ORDERED that plaintiff’s motions to amend [Dkt No. 22] and in opposition to the

motioji to dismiss [Dkt No. 23] are DENIED.

This is a final Order for the purposes of appeal. To appeal this decision, plaintiff must file

a writt in notice of appeal with the Clerk’s office within thirty (30) days of the date of this

Order.

Fed. R. App. P. 4(a). A written notice of appeal is a short statement indicating a

desire n appeal and including the date of the Order the plaintiff wishes to appeal. Failure to file a

timely notice of appeal waives the right to appeal this decision.

The Clerk is directed, pursuant to Fed. R. Civ. P. 58, to enter final judgment in favor of

defend mt; to send a copy of the Memorandum Opinion and this Order to plaintiff pro se and to

counse l of record for defendants; and to closerthis civil action.

Entered this

day of

2023.

Alexandria, Virginia

T.S. Ellis, HI

United States Dist

? •

B.l

Judge

)ase l:22-CV-00460-TSE-IDD Document 25 Filed 01/04/23 page i ot iu nageiLw xuv

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Douglas Fauconier,

Plaintiff,

Commonwealth of Virginia,

Defendant.

)

l:22cv460 (TSE/IDD)

MEMORANDUM OPINION

Douglas Fauconier (“Fauconier” or “Plaintiff’), a Virginia inmate proceeding pro §e,

filed a civil rights action under 42 U.S.C. § 1983. (Diet No. 1]. Plaintiff alleges that the

Commonwealth of Virginia violated his right to equal protection because he was not made parole

eligible by an amendment to Virginia Code § 53.1-165.1 effective April 22,2020, which made

inmates “sentenced by a j ury prior to June 9,2000, for any felony offense committed on or after

January 1,1995, and who remained incarcerated for such offense on July 1,2020,” eligible for

parole. The bill was enacted and signed by the Governor on April 22,2020. §ee 1994,2nd Sp.

Sess., cc. 1,2; 2020, cc, 2,529,1200,1272 (“2020 Amendment”). Plaintiff admits he was

—?' - .

convicted of “a felony” in 1998, and as noted below, the online records of the Circuit Court of

Arlington County, Virginia indicate he pleaded guilty in 1998 and 1999 to ten felonies that

occurred in 1996 and was not sentenced by a j ury.

The Attorney General was served with the complaint and has filed a motion to dismiss,

with a brief in support. [Dkt. No. 16,17]. Plaintiff was advised of his right to file responsive

materials to the motion to dismiss pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.

1975), and Local Rule 7(K). Plaintiff filed an opposition to the motion to dismiss and a

supporting memorandum, and he also moved for leave to amend. [Dkt. Nos. 22-24] . The motion

to amend Seeks to add additional defendants (the Attorney General of Virginia, all current

\\ V

B. 2

■' .vT?

Qase l:22-CV-00460-TSE-IDD Document 25 Filed 01/04/23 Page 2 of 10 Page ID# 101

members of the Virginia General Assembly, and the Governor of the State of Virginia, Glenn

Youngkin). [Dkt. No. 22 at 1]. Accordingly, this matter is now ripe for disposition. For the

reasons that follow, the Commonwealth of Virginia’s motion to dismiss must be granted, and

Plaintiffs motion for leave to amendjmust be denied because he has failed to state a claim and

his proposed amendment would be fiitile.

I. Background

Plaintiff is an inmate in the Virginia Department of Corrections (“VDOC”), currently

incarcerated at the Augusta Correctional Center. Plaintiff s complaint reflects that in 1998 he

pled guilty to a felony that involved conduct that occurred in 1996 and that, because he pled

guilty, he was sentenced by a judge and not a jury. [Dkt. No. 1 at 3]. The online records of the

Circuit Court of Arlington County, Virginia establish that Plaintiff pleaded guilty to ten

felonies.1 Seven of the felonies occurred on July 3, 1996 — two counts of use of a firearm in the

commission of a felony in violation of Virginia Code § 18.2-53.1; two counts of robbery in

violation of Virginia Code § 18.2-58; two counts of abduction in violation of Virginia Code

§ 18.2-48, and one count of animate sexual object. penetration in violation of Virginia Code

§ 18.2~67.2.2 The other three felonies occurred on August 6,1996

one count each of

abduction, robbery, and use of a firearm. At the time of his conviction, Plaintiff was ineligible

for parole under Virginia Code § 53.1-165.1(A), which provided that “[ajny person sentenced to

rrikyptpperly tacejudicialnoticeof matters of public record.”).

2 Plaintiffpied guilty to the animate object penetration indictment on March 23, 1999. He had previously pleaded

guilty to the other nine felonies on November 17,1998.

B. 3

Case l:22-cv-00460-tSE-IDD Document 25 Filed 01/04/23 Page 3 of 10 PagelD# 102

a term of incarceration for a felony offense committed on or after January 1, 1995, shall not be

eligible for parole upon that offense.”

In 2000, the Supreme Court of Virginia considered a case in which a trial court denied a

defendant’s request for ajrny instruction informing the jury that parole had been abolished m

Virginia.

v. Commonwealth, 260 Va. 104,110,532 S.E.2d 629,631 (2000) (the appeal

was 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’”).3 The Supreme Court of Virginia

in Fishback reversed its prior decision in Coward v. Commonwealth, 164 Va. 639 , 178 S.E. 797

(1935), which had held that “a jury should not be instructed upon the possibility of parole,

because it would allow the jury to speculate on “what might occur thereafter during the executive

department’s administration of the sentence imposed ” 260 Va. at 111,114,532 S.E.2d at 631,

633

. In Fishback. the Supreme Court of Virginia noted that significant statutory enactments since

Coward limited the executive branch’s ability to “modifyQ the sentences imposed on defendants

by the judicial branch” and that it was not only “appropriate, but requisite [sic], that we

reconsider the policy underlying the Coward rule.” Fishback, 260 Va. at 112-13,532 S.E.2d at

632. With the abolition of parole, Fishback found “[t]he executive branch no longer ha[d) the

discretion to grant or deny parole because [Virginia Code § 53.1-165.1(A)] abolishes parole....

[and that] in the context of achieving thergoal of‘truth in sentencing,’ it simply defie[d] reason

that” a jury should not be instructed that parole had been abolished, 260 Va. at 114,532 S.E,2d

at 633. To address the abolition of parole and other forms of early release and sentence

reduction, Fishback held

mmasEBBSsmsm

KKroV” Fishback. 260 Va. at 110,532 S.El2d at 631.

B74

]

D;bcument

25 Filed 01/04/23 Page 4 of 10 PagelD# 103

Qase l:22-cv-00460-TSE-IDD

that henceforth juries shall be instructed, as a matter of law. on the abolition of

parole for non-capital felony offenses committed on or after January 1, 1995

pursuant to Code § 53.l465.jf. in addition, because Code § 53.1-40.01 is m the

nature ofa parole statute, where applicable juries shall also be instructed on the

possibility of geriatric release pursuant to that statute,

260 Va. at 115-116,532 S.E.2d at 634. Fishback expressly held that this “new rule of criminal

procedure [was] limited prospectively to those cases not yet final on” June 9,2000. Id at 116,

532 S.E.2d at 634.

At a special Session of the Virginia General Assembly in 2020, the General Assembly

amended § 53.1-105.14 by adding the following language:

B The provisions of this article shall apply to any person who was sentenced by a

iury prior to June 9, 2000, for any felony offense committed on or after January 1,

1995 and who remained incarcerated for such offense on July 1,2020, othei than

(i) a Class 1 felony or (ii) any of the following felony offenses where the victim

was a minor: (a) rape in violation of § 18.2-61; (b) forcible sodomy in violation

of s i g 2-67.1; (c) object sexual penetration in violation of § 18.2-67.2; (d)

aggravated sexual battery in violation of § 18.2-67.3; (e) an attempt to commit a

violation of clause (a), (b), (c), or (d); or (f) carnal knowledge in violation of §

18,2-63,18.2-64.1. or 18.2-64.2.

C The Parole Board shall establish procedures for consideration of parole of

persons entitled under subsection B consistent with the provisions of § 53.1-154,

D Any person who meets eligibility criteria for parole under subsection B and

pursuant to § 534-151 as of July 1,2020, shall be scheduled for a parole

interview no later than July 1, 2021, allowing for extension of time for reasonable

cause.

Thus, the question presented by the motion to dismiss is whether plaintiff has

stated a claim for a violation of his equal protection rights based on the 2020 Amendment

The

260

sim

teoMois, search -SB 7«"> (lea viewed Jan. %

2023),

B. 5

Gase l:22-cv-00460-TSE-IDD Document 25 fried 01/04/23 Page 5 of 10 PagelD# 104

only providing a remedy to those sentenced by a jury prior to June 2000 and nor

providing an opportunity for parole for those, like plaintiff, sentenced by a judge.

II. Standard of Review

“A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims pled in

a complaint.” ACAFin. Guar. Coro, v. Citv of Buena Vista, 917 F.3d 206,211 (4th Cir. 2019).

The Federal Rules of Civil Procedure require that the pleading contain “a short and plain

statement of the claim showing that the pleader is entitled to relief .” Fed. R. Civ. P. 8(a). This

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” AsWoftv. Iabal. 556 U.S. 662,678 (2009). “Labels, conclusions, recitation of a

claim’s elements, and naked assertions devoid of further factual enhancement will not suffice to

meet the Rule 8 pleading standard.” ACAFin. Guar. Corp., 917 F.3d at 211.

To meet the Rule 8 standard and “survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Iabal. 556 U.S. at 678 (quoting Bell Atlantic Corp. v, Twomblv. 550 U.S. 544, 570 (2007)). To

contain sufficient factual matter to make a claim plausible, the factual content must “allow the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. “Although the truth of well-pleaded facts is presumed, a court is not bound by the ‘legal

conclusions drawn from the facts’ and ‘need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments RiAtick v. Watson. 503 F. Supp. 3d 399,410 (E.D.

Va, 2020) (quoting K. Shore Mkts- Inc, v. J.D. Assocs, Ltd. P’ship, 213 F.3d 175,180 (4th Or.

2000)).

To succeed on an equal protection claim, Plaintiff “must first demonstrate that he has

been treated differently from others with whom he is similarly situated and that the unequal

B.5 6

Qase l:22-cv-00460-TSE-IDD Documeht25 Filed 01/04/23 Page 6 of 10 PagelD# 105

ft.-. ,

f; : r

;

•

foj.

treatment was the result of intentional or purposeiui discrimination.” Morrison v,_Garraghty, 239

F.3d 648,654 (4th Cir. 2001). Only if he has satisfied both elements of an equal protection claim

will a court consider, in the prison context, whether a classification was “reasonably related to

legitimate penological interests.” Id. at 655 (quoting Turner v. Safley, 482 U.S. 78,89 (1987)).

But that showing does not sec ure the claim, as the plaintiff must also plausibly

allege that the disparity was dpt justified under the appropriate level of scrutiny.

[Martin v.Duffv. 858 F.3d 239,252 (4th Cir. 2017)]. To account for the unique

health and welfare concerns in the prison context, our review of a plaintiffs

challenge to a prison decision Or policy is more demanding, as we “accord

deference to die appropriate prison authorities.” Turnery. Safley, 482 U.S. 78,85

(1987). Under this deferential standard, the prisoner must allege that “the

disparate treatment [was not] reasonably related to any legitimate penological

interests.” Venev v. Wvche. 293 F.3d 726, 732 (4th Cir. 2002) (cleaned up).

Fauconier v. Clarke. 966 F.3d 265,277 (4th Cir. 2020).

The Equal Protection Clause, however, “does not take from the States all power of

classification,” Personnel Adm’r v. Feeney. 442 U.S. 256,271 (1979). Indeed, “[l]awmaking by

its nature requires that legislatures classify, and classifications by their nature advantage some

and disadvantage others.” Helton v. Hunt 330 F.3d 242,245 (4th Cir. 2003). “Defining the class

of persons subject to a regulatory requirement—much like classifying governmental

beneficiaries—‘inevitably requires that some persons who have an almost equally strong claim to

favored treatment be placed on different sides of the line, and the fact [that] the line might have

been drawn differently at some points is a matter for legislative, rather than judicial,

consideration.’” FCC v. Beach Communications. Inc., 508 U.S. 307,315-16 (1993) (quoting

United States R.R. Retirement Bd. v. Fritz. 449 U.S. 166,179 (1980)); see,also Wilkins v.

Gaddv. 734 F.3d 344,347 (4th Cir. 2013) (quoting Heller v. Doe, 509 U.S. 312,319 (1993)).

«(€«

[U]nless a statute affects a fundamental right or some protected class, courts generally accord

the legislation a ‘strong presumption of validity’ by applying a rational basis standard of

review.”). Since “classification is the veiy essence of the art of legislation,” a challenged

B. 7

Qase l:22-cv-00460-TSE-IDD Document 25 Filed 01/04/23 Page 7 of 10 PagelD# 106

classification is “presumed to be constitutional under the equal protection clause. Moss v. Clark,

886 F.2d 686,689 (4th Cir. 1989).

To survive a constitutional challenge under the Equal Protection Clause, the classification

in question “need only be rationally related to a legitimate state interest unless it violates a

fundamental right or is drawn upon ajsuspect classification such as race, religion, or gender....”

and the Fourth Circuit does not “recognize prisoners as ‘a suspect class.’” Giarratano.,v. Johnson,

521 F.3d 298,303 (4th Cir. 2008) (quoting Roller v. Gunn. 107 F.3d 227,233 (4th Cir. 1997));

accord Moss v. Clark. 886 F.2d 686,690 (4th CiK i"989) (“Prisoners are not a suspect class.”).

In discussing judicial review of a legislative classification, Heller observed that the Equal

Protection Clause does not

authorize “the judiciaiy [to] sit as a superlegislature to judge the wisdom or

desirability of legislative policy determinations made in areas that neither affect

fundamental rights nor proceed along suspect lines.” For these reasons, a

classification neither involving fundamental rights nor proceeding along suspect

lines is accorded a strong presumption of validity . Stich a classification cannot run

afoul of the Equal Protection Clause if there is a rational relationship between the

disparity of treatment and some legitimate governmental purpose. Further, a

legislature that creates these categories need not “actually articulate at any time

the purpose or rationale supporting its classification.” Instead, a classification

“must be upheld against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.”

509 U.S. at 319-320 (citations omitted).

III. Analysis

The Commonwealth of Virginia argues that Plaintiff has neither stated a claim that he

was treated any differently from others similarly situated nor has plaintiff demonstrated facts in

the complaint that the alleged unequal treatment was the result of intentional or purposeful

discrimination. [Dkt. No. 17 at 2-3]. In response, Plaintiff seeks to add individual defendants and

argues his right to equal protection has been violated because his post-January 1,1995

B. 8

25 Filed 01/04/23 Page 8 of 10 PagelD# 107

Gase l:22-cv-00460-TSE-IDD document

conviction is not covered by the 2020 Amendment. Plaintiffs arguments have no merit, and his

{

complaint will be dismissed because'amendment is futile.

Plaintiff alleges he is similarly situated to the inmates who were made parole eligible

under the 2020 Amendment and that the failure to provide a remedy to him is a violation of his

equal protection rights. Section 53.1465.1(B) and (D),5 however, only applies to those inmates

whose juries were deprived of the information that parole had been abolished in Virginia. In

Virginia, trial judges, unlike juries, are presumed to know the law.6

Moreover, even assuming Plaintiff could establish that he was similarly situated to

inmates made eligible for parole by the 2020 Amendment, there is no evidence of intentional or

purposeful discrimination. To the contrary, the General Assembly enacted a statute -the 2020

Amendment - clearly intended to provide only a remedy for inmates sentenced by juries between

January 1 , 1995 and June 9,2000, where the juries were not instructed that parole had been

abolished in Virginia. Finally, the enactment has a rational basis and the “fact [that] the line

might have been drawn differently” is “a matter for legislative, rather than judicial,

consideration.

Rgflrh Communications. Inc., 508 U.S. at 315-16; see, e.g., Mahfouz v.

T nrkhflrfc 826 F.2d 791,794 (8th Cir.) (“The state’s decision to distinguish sex offenders as a

group from other inmates and exclude them from the work release program is rationally related

* violation of § it*#,*.®*)*,**

COT”“ vt

64.2.

nature of the felony.

he L convicted of. felony, h. docs no. sfefe the

•* ’ a

neatiiesce therein and if the legislature intends to countermand such appellate decision it must do so

172 i».3", 578 S.E.2d 88, 91 n.3 (2003) (whet* a Judge is

sSng wkhoSW“[tp judgeffpresumed to know the law and to apply it correctly in each case. ) (citmg Storks

v?S£eag2S k'4S,k 301 S.R2d 152,156 (1983)).

B. 9

, (Jase l:22-cv-00460-TSE-IDD Document 25 Filed 01/04/23 Page 9 of 10 PagelD# 108

to the legitimate government purpose of preventing sex crimes and thus does not violate the

equal protection clause.”).

In sum, plaintiff falls outside the plain language of the 2020 Amendment which therefore

has no application to his case. Moreover, plaintiff cannot state an equal protection claim based

on his exclusion from the remedy prodded by the 2020 Amendment because the General

Assembly had a rational basis to distinguish between those inmates sentenced by juries, who

would not have been aware of the unavailability of parole, and those inmates sentenced by

judges, who are presumed to be aware of changes to the law sttch as the unavailability Of parole.

Accordingly, plaintiff cannot state an equal protection violation and the motion to dismiss must

be granted.

Plaintiff also seeks leave to amend his complaint to add additional defendants, apparently

in response to the portion of the motion to dismiss seeking dismissal of the Commonwealth as a

defendant. [Dkt No. 22 at 1-2]. Leave to amend “shall be freely given when justice so requires.”

Fed. R. Civ. P. 15(a). “A motion to amend should be denied ‘only when the amendment would

be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or

the amendment would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231,242 (4th Cir.

1999) (internal quotation marks omitted). In this instance, the amendment would be futile. Even

assuming that the proposed amendment was allowed, the complaint would nevertheless foil at the

threshold because it fails to state an equal protection violation. In short, the proposed

amendment would not cure the complaint’s lack of merit.7

7 See UR Airline Pilots Ass’n v. A WAPPA, LLC, 615 F.3d 312,320 (4th Cir. 2010) (holding that the district court

did hot abuse its discretion in denying leave to amend where the proposed amendment “would liave no impact on the

outcome of the motion to dismiss”); see. e.g., Pettawav v. Nat’l Recovery Sols., LLC. 955 F.3d 299,304 (2d Cir.

2020) (holding the district bourt did not bit in denying the plaintiffs application to amend her complaint because the

B.10

D dbcument 25 Filed 01/04/23 Page 10 of 10 PagelD# 109

«Oase l:22-cv-00460-TSE-IDD

!■

)

;

TV. Conclusion

For the foregoing masons, Defari»f> motion to dismiss (Dkt No. t6J most belted,

ioti to the motion to dismiss [Dkt Nos.

and Plaintiffs motions for leave to amjsnd and in oppostoon

22.23] must be denied

. ^ appropriate order >vill issue alongside this memorandum opinion.

Entered this

,2023.

Alexandria, Virginia

tat MW

T.S.EUis,HI

United States District Judge

r•

dismiss”).

B.ll

APPENDIX C

§ 53.1-165.1. Limitation on the application of parole statutes.

A. The provisions of this article, except §§ 53.1-160 and 53.3-160.1, shall not apply to any

sentenc 2 imposed or' to any prisoner incarcerated upon a conviction for a felony offense

committed on or after January 1, 1995. Any 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.

B. Fhe provisions of this article shall apply to any person who was sentenced by a jury prior

to June 9, 2000, for any felony offense committed on or after January 1, 1995, and who remained

incarcerated for such offense on July 1, 2020, other than (i) a Class 1 felony or (ii) any of the

following felony offenses where the victim was a minor: (a) rape in violation of § 18.2-61; (b)

forcible sodomy in violation of § 18.2-67.1; (c) object sexual penetration in violation of §

18.2-67 2; (d) aggravated sexual battery in violation of § 18.2-67.3; (e) an attempt to commit a

violation of clause (a), (b), (c), or (d); or (f) carnal knowledge in violation of § 18.2-63,

18.2-64.1, or 18.2-64.2.

c. : 'he Parole Board shall establish procedures for consideration of parole of persons entitled

under subsection B consistent with the provisions of § 53.1-154.

D. Any person who meets eligibility criteria for parole under subsection B and pursuant to §

53.1-15 as of July 1. 2020, shall be scheduled for a parole interview no later than July 1,2021,

allowing for extension of time for reasonable cause.

E. Notwithstanding the provisions of subsection A or any other provision of this article to

the confary, any person sentenced to a term of life imprisonment for a single felony or multiple

felonies committed while the person was a juvenile and who has served at least 20 years of such

sentence shall be eligible for parole and any person who has active sentences that total more than

20 years for a single felony or multiple felonies committed while the person was a juvenile and

who has served at least 20 years of such sentences shall be eligible lor parole. The Board shall

review and decide the case of each prisoner who is eligible for parole in accordance with §

53.1 -15Z and rules adopted pursuant to subdivision 2 of § 53.1-136.

(1994, 2nd Sp. Sess,, cc. 1, 2; 2020, cc. 2, 529, 1200, 1272.)

The 2020 amendments. - The 2020 amendments by cc. 2 and 529 are identical and added

subsectio n E.

VACODE

restrictions a id terms and conditions of the Matthew Bender Master .Agreement.

C.l

The 2020 amendments by cc. 1200 and 1272, effective April 22, 2020, are identical, and added

subsect ons B through D.

Lav review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749

(2000).

For article, "Virginia's Capital Jurors," 44 Wm. & Mary L. Rev. 2063 (2003).

For article, "Sentencing Juvenile Homicide Offenders: A 50-State Survey," see 5 Va. J. Grim. L. 130

(2017).

IVlicliie's Jurisprudence. - For related discussion, see 10A M.J. Instructions, § 36; 14A M.J. Pardon,

Probation and Parole, § 5.

CASE NOTES

Jury instructions. - When evidence of prior sentences may lead the jury to speculate that parole is

still available to the defendant, a trial judge is required to instruct the jury that the defendant, if convicted,

will be in eligible for parole. Hartigan v. Commonwealth, 31 Va. App. 243, 522 S.E.2d 406 (1999).

Juries shall be instructed, as a matter of law, on the abolition of parole for non-capital felony offenses

committed on or after January 1, 1995, pursuant to this section. Fishback v. Commonwealth, 260 Va. 104,

532 S.E.2d 629 (2000) (pursuant to the legislative summary the 2020 amendments to § 53.1-165.1 by

Acts 202 D, cc. 1200 and 1272 were in response to this case).

VACODE

restrictions a id terms and conditions of the Matthew Bender Master Agreement.

C. 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.