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Advising jury of life sentence for sodomy correctly excluded

Where appellant, charged with three counts of sodomizing a child younger than 13, did not request that a jury impose his sentence, the trial court correctly refused to let appellant tell the jury that if convicted, he would be given a mandatory life sentence.


“Appellant requested a jury trial on the charges but did not request sentencing by a jury. … Before trial appellant confirmed to the court that he wanted a jury trial.

“The Commonwealth then asked the trial court to rule on its previously filed motion in limine to exclude any mention to the jury of the mandatory life sentences appellant would receive if convicted of the sodomy charges.

“It argued that because appellant had not requested that a jury fix his sentence, he had no statutory right to notify the jury of the mandatory life sentences.

“Appellant disagreed, maintaining that the law allowed him to tell the jury that the convictions would carry mandatory life sentences. The court noted appellant’s objection and granted the Commonwealth’s motion.”


Appellant “argues the trial court erred in granting the Commonwealth’s motion to exclude mention of possible sentences to the jury, even though he never requested jury sentencing. He cites Code § 19.2-262.01, enacted in 2020, which allows those selected as potential jurors to receive information about the possible sentence ‘to ascertain if the person or juror can sit impartially in the sentencing phase of the case.’…

“Because understanding appellant’s arguments regarding Code § 19.2-262.01 requires some historical background, this Court first introduces that background. …

“In Virginia, before 2021, if a jury determined a defendant’s guilt, the same jury would also determine the defendant’s punishment. …

“Despite Virginia juries’ dual roles, Virginia courts repeatedly rejected attempts by defendants to notify juries during the trial’s guilt phase of the sentences defendants would face if convicted.

“In Walls v. Commonwealth, 38 Va. App. 273, 276, 281 (2002), this Court held a defendant had no right to tell the jury during the guilt phase of his trial that he would face a mandatory minimum sentence of two years if convicted.

“The Court explained that ‘[t]he law applicable to determining the appropriate sentence for a defendant found guilty of the charged offense is not relevant and, therefore, falls outside the scope of permissible argument in the guilt phase.’ …

“Such a conclusion, the Court wrote, is consistent with the purpose of mandatory-minimum laws, which the General Assembly enacted because ‘[it] has determined that commission of the offense is serious enough to require the specified minimum sentence even if mitigating circumstances exist.’ …

“The Court further concluded that ‘the only purpose served by allowing defense counsel to present argument about the mandatory minimum sentence during the guilt phase is to encourage the jury to acquit the defendant even though the evidence might prove him guilty.’ …

“The Supreme Court agreed, confirming that ‘in a non-capital case, neither the defendant nor the Commonwealth has a constitutional or statutory right to question a jury panel about the range of punishment that may be imposed upon the defendant.’ Commonwealth v. Hill, 264 Va. 315, 319 (2002); see also Thomas v. Commonwealth, 279 Va. 131, 165 (2010).

But in 2020, the General Assembly enacted Code § 19.2-262.01, which, in relevant part, states, ‘The court and counsel for either party may inform any [venireperson] or juror as to the potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case.’ …

“The following year, Virginia ended mandatory jury sentencing. … The law now mandates that ‘the court shall ascertain’ the punishment, ‘unless the accused is tried by a jury and has requested that the jury ascertain punishment.’”

Statute interpreted

“In the instant appeal, appellant contends that Code § 19.2-262.01 grants him a statutory right to disclose to the jury that he would receive multiple life sentences if convicted of all charges.”

However, “[b]y its own terms, Code § 19.2-262.01 allows the court or parties to notify ‘any person who is called as a juror’ of the sentencing range for a single, specific purpose: ‘to ascertain if the … juror can sit impartially in the sentencing phase of the case.’

“Appellant, however, never requested that a jury sentence him. … In such a case, the court determines sentencing. … The court and parties therefore had no need to ascertain whether the jurors could ‘sit impartially in the sentencing phase of the case.’ …

“Nor did the jurors have any other legitimate need for information about the possible sentences the defendant could receive, as the possible sentences were irrelevant to the issue of guilt. …

“Accordingly, cases in which a defendant has not requested jury sentencing fall outside of the relevant provision of Code § 19.2-262.01, and instead the principles outlined in Walls, Hill, and Thomas still control.”


“Code § 19.2-262.01’s straightforward language dictates a straightforward rule: the relevant provision of the statute applies only where a defendant has requested jury sentencing. The trial court therefore did not err in granting the Commonwealth’s motion in limine.”


Rock v. Commonwealth, Record No. 0343-22-3, Jan. 24, 2023. CAV (published opinion) (Huff). From the Circuit Court of Alleghany County (Stein). Charles S. Moore for appellant. Virginia B. Theisen, Jason S. Miyares for appellee. VLW 023-7-033, 14 pp.

VLW 023-7-033

Virginia Lawyers Weekly