188
Stevens, J., dissenting
Perhaps recognizing that problem, the plurality shifts ground. It is not, the plurality says, "only" whether parole ineligibility under state law has been determined "at the time of sentencing," but whether there is "no possibility" of parole eligibility at that time. Ante, at 169. In other words, the plurality says that Simmons applies when there is "conclusive proof" at the time of sentencing that the defendant will (in the future) "inevitabl[y]" be found parole ineligible. Ante, at 170, 173-174. In Ramdass' case, the plurality continues, he would not inevitably be parole ineligible, because, under Virginia law, his Domino's Pizza robbery verdict could have been set aside under Virginia Supreme Court Rule 3A:15(b) (1999). That Rule permits a trial court to set aside a guilty verdict up to 21 days after final judgment has been entered. Ante, at 174-175.9
But again, this is not a fact that distinguishes Ramdass' case from Simmons'. Like Virginia, South Carolina permitted (and still permits) the court to entertain post-trial motions to set aside a verdict and such a motion could have
a later date). Finally, if Simmons' parole ineligibility had been legally and conclusively resolved by the time of his trial, there would have been no need for the plurality to discuss (and reject) possibilities that might have undermined Simmons' eventual finding of parole ineligibility. See infra, at 201-203.
The Simmons plurality did say that "an instruction informing the jury that petitioner is ineligible for parole is legally accurate." 512 U. S., at 166; ante, at 166-167. But in the very next sentence the plurality wrote: "Certainly, such an instruction is more accurate than no instruction at all." 512 U. S., at 166 (emphasis added). This made it clear that "accuracy," in the sense used there, is a relative term, not an absolute conclusive determination of legal status.
9 At the time of Ramdass' trial, Rule 3A:15(b) read: "(b) Motion to Set Aside Verdict.—If the jury returns a verdict of guilty, the court may, on motion of the accused made not later than 21 days after entry of a final order, set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction."
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