Dwayne Ronald Harley v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
DWAYNE RONALD HARLEY
MEMORANDUM OPINION * BY
v. Record No. 2734-96-2 CHIEF JUDGE NORMAN K. MOON
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Matthew T. Paulk, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Dwayne Ronald Harley was convicted of robbery in violation
of Code § 18.2-58 and sentenced to twenty-five years in prison,
with thirteen years suspended, in a bench trial on July 7, 1995.
In an unpublished opinion, we found that the trial court failed
to consider the presentencing report and, thus, remanded the case
for resentencing.
Before the resentencing hearing, Harley's counsel moved the
judge to recuse himself based on his alleged statements
expressing displeasure with our decision, including an assertion
that the resentencing procedure was "a waste of taxpayers'
dollars." The judge replied, "Well, I really think it probably
was." He said that he had studied the case and read the
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
presentence report before imposing the original sentence, and he
"really [did not] know how [he] really could change things."
Nevertheless, the judge assured defense counsel that he had
not "made up [his] mind" regarding the sentence to be imposed,
though he was "not going to raise the sentence." Furthermore,
although he admitted that he was a "little upset" at our
remanding the case, he noted that "no matter how I felt about
this case or how mad I would get, I would not use it against
[Harley]. . . . I might have been a bit disappointed [that the
case was remanded], but it did not inflame my passions." The
judge then denied the recusal motion.
Defense counsel noted several corrections in the presentence
report and said the guidelines should be recalculated to range
from two years, four months to four years, seven months. The
Commonwealth argued that because Harley had unlawfully killed a
man seven years earlier, and in the instant case he had beaten
the victim badly to accomplish the robbery, a sentence of
twenty-five years with thirteen years suspended was appropriate.
The judge noted that he was not bound by the guidelines and
asserted that the circumstances of the crime and Harley's
background warranted a twenty-five- to fifty-year sentence. The
judge acknowledged the mitigating factors presented in the
presentencing report and then again sentenced Harley to
twenty-five years in prison, with thirteen years suspended.
Harley asserts that the judge abused his discretion in
refusing to recuse himself from the resentencing hearing. "It is
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within the trial judge's discretion to determine whether he
harbors bias or prejudice which will impair his ability to give
the defendant a fair trial." Terrell v. Commonwealth, 12 Va.
App. 285, 293, 403 S.E.2d 387, 391 (1991). The trial court's
determinations will be reversed only for abuse of that
discretion. Id.
As defense counsel noted, Canon 3 (C) of the Canons of
Judicial Conduct requires that "a judge must diligently avoid not
only impropriety but a reasonable appearance of impropriety as
well." Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d
741, 743 (1996). Nevertheless, "[e]ven when circumstances create
an appearance of bias, unless the conduct of the judge is shown
to have affected the outcome of the case," the court's
determination will not be reversed. Welsh v. Commonwealth, 14
Va. App. 300, 317, 416 S.E.2d 451, 461 (1992), aff'd, 246 Va.
337, 437 S.E.2d 914 (1993).
In denying Harley's recusal motion, the judge noted that he
believed he did not possess any bias or prejudice and that "no
matter how I felt about this case or how mad I would get, I would
not use it against [Harley]." The judge reviewed the
presentencing report, listened to counsel's arguments and
Harley's statement, and articulated the reasons for the length of
Harley's sentence. Based upon this record, we find that Harley
failed to demonstrate that the trial judge harbored such bias or
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prejudice so as to deny him a fair trial. Accordingly, we find
no abuse of discretion and affirm.
Affirmed.
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