COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
TIMOTHY MICHAEL PRICE
MEMORANDUM OPINION * BY
v. Record No. 2643-01-1 JUDGE WALTER S. FELTON, JR.
OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
Michael D. Kmetz (Jones, Kmetz & Malone,
P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Timothy Price appeals the revocation of his probation. He
contends that the trial judge erred in not recusing himself from
the case because he was the Commonwealth's Attorney when the crime
was committed and when Price entered the plea agreement with the
Commonwealth. See Canons of Judicial Conduct Canon 3(E)(1). We
affirm the judgment of the trial court.
I. BACKGROUND
On December 1, 1999, Timothy Price was indicted for (1)
burglary, in violation of Code § 18.2-89, (2) conspiracy to
commit larceny, in violation of Code § 18.2-22, and (3) grand
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
larceny, in violation of Code § 18.2-95. On January 20, 2000,
Price, his attorney, and deputy Commonwealth's attorney Phillip
G. Evans entered into a plea agreement. The plea agreement
provided that Price would plead guilty to the burglary and grand
larceny charges and the Commonwealth would nolle prosequi the
conspiracy to commit larceny charge. Additionally, the
agreement provided that the court obtain a pre-sentence report
and then sentence Price within the sentencing guidelines. 1 Price
subsequently pled guilty, and a pre-sentence report was ordered.
On March 17, 2000, Price appeared before the trial court
for a pre-sentencing hearing. The court ordered him committed
to the Department of Corrections for a period not to exceed
sixty days, for evaluation and diagnosis to determine his
suitability for participation in the Boot Camp Incarceration
Program, the Diversion Center Incarceration Program, or the
Southampton Detention Incarceration Program. On June 22, 2000,
the court sentenced Price to five years in prison for burglary
and five years in prison for grand larceny. All ten years were
suspended, and he was placed on probation. The court also
granted the Commonwealth's nolle prosequi motion. 2
1
The record is silent as to what active role, if any,
Charles D. Griffith, the Commonwealth’s Attorney at the time,
took in this case.
2
The sentencing order reflects that the Commonwealth was
represented by Calvin R. Depew or his designee for this
sentencing proceeding.
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On June 13, 2001, the trial court issued a capias for
Price's arrest at the request of his probation officer, Samantha
Foster, for probation violations. On August 3, 2001, a
probation violation hearing was held. Prior to the initiation
of the proceeding, Price's attorney asked that Judge Charles
Griffith recuse himself. The following colloquy ensued:
MR. KMETZ [Price's attorney]: [W]ith all
due respect to the Court, on the probation
violation summary you are listed as the
Commonwealth's attorney at the sentencing,
and at the very least, I think there is an
appearance of impropriety in you hearing the
probation hearing report. At this time I
would ask that the case be transferred to
another court or continued to another date
for another judge of this court to hear the
violation.
THE COURT [Judge Griffith]: All right.
Okay. I've gotten an opinion from the
Judicial Inquiry Review Commission regarding
probation violations, and they advised me
that the critical factor for the Court to
consider whether or not I should or
shouldn't because of my time as
Commonwealth's attorney and recuse myself on
a case has to do with the time which would
have triggered the violation, not the time
of which violated the probation. In this
particular case, that probation didn't
commence until after I assumed my position
as a judge. In fact this particular
probation violation summary incorrectly
stated that I was Commonwealth's attorney,
so I'm going to deny that motion.
MR. KMETZ: Just note our objection for the
record.
THE COURT: Okay. Yes, sir.
MS. FINK [Commonwealth's attorney]: Judge,
for purposes of this hearing I would like to
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move for admission of the probation
violation summary prepared by Samantha
Foster with the date of June 27th, 2001,
with the correction that the Court just
mentioned.
THE COURT: I'll make that amendment.
* * * * * * *
THE COURT: Any objection to the violation
report being received in evidence?
MR. KMETZ: No, Judge.
The hearing proceeded, and the court revoked Price's probation.
It imposed the ten years imprisonment that was previously
suspended.
II. ANALYSIS
Price contends on appeal that the trial judge erred in not
recusing himself from the case because he was the Commonwealth's
Attorney when the crime was committed and when he and the
Commonwealth entered into the plea agreement. Price argues that
at the very least there was an appearance of impropriety at the
time the probation violation hearing occurred, and Judge
Griffith should have recused himself. We disagree.
Canon 3(E)(1) states in pertinent part:
E. Disqualification.
(1) A judge shall disqualify himself or
herself in a proceeding in which the
judge's impartiality might reasonably
be questioned, including but not
limited to instances where:
(a) The judge has a personal bias
or prejudice concerning a party or
a party's lawyer, or personal
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knowledge of disputed evidentiary
facts concerning the proceeding;
(b) The judge served as a lawyer
in the matter in controversy, or a
lawyer with whom the judge
previously practiced law served
during such association as a
lawyer concerning the matter, or
the judge has been a material
witness concerning it; . . . .
It is well settled that a judge must "diligently avoid not
only impropriety but a reasonable appearance of impropriety as
well. Exactly when a judge's impartiality might reasonably be
called into question is a determination to be made by that judge
in the exercise of his or her sound discretion." Davis v.
Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996)
(holding no error where trial judge refused to recuse himself in
case where, as Commonwealth’s Attorney, he had previously
prosecuted the defendant on another matter). "A trial judge must
exercise reasonable discretion to determine whether he possesses
such bias or prejudice as would deny the defendant a fair trial
[or hearing]." Justus v. Commonwealth, 222 Va. 667, 673, 283
S.E.2d 905, 908 (1981).
We cannot say on the record of this case that there was an
abuse of judicial discretion by Judge Griffith or that he harbored
a bias or prejudice against Price. At trial, Price premised his
recusal request solely on the basis that the probation violation
summary listed Judge Griffith as the Commonwealth's Attorney at
his June 22, 2000 sentencing. Judge Griffith noted that he had
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assumed his position on the bench before Price was sentenced to
probation and that the probation violation summary was incorrect.
Subsequently, the probation violation summary was amended to
reflect the correct Commonwealth's Attorney, and it was admitted
into evidence without objection. In United States v. Gipson, 835
F.2d 1323 (10th Cir. 1988), the Tenth Circuit held that the mere
fact that a judge was the "United States Attorney at the time
when, and in the district where, defendant's first prosecution
took place," did not mandate his recusal.3 Even if the
circumstances created an appearance of bias, "unless the conduct
of the judge is shown to have affected the outcome of the case,
the conviction will not be reversed, even though the judge may
have infringed an ethical duty imposed by Canons of Judicial
Conduct." Welsh v. Commonwealth, 14 Va. App. 300, 317, 416
S.E.2d 451, 459-60 (1992).
3
In Gipson, the court interpreted a federal statute
relating to disqualification of a judge who had previously
served as a United States Attorney [28 U.S.C. § 455]. The court
stated,
[I]n our opinion, before the presumption
arises that a judge is in fact partial
because of his past conduct as an attorney,
a party seeking disqualification must show
that the judge actually participated as
counsel. Mandatory disqualification then is
restricted to those cases in which a judge
had previously taken a part, albeit small,
in the investigation, preparation or
prosecution of a case.
Id. at 1326.
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Absent any showing of actual bias or judicial prejudice by
the trial judge in the record before us, we find no abuse of
discretion in his failing to recuse himself from presiding over
the revocation proceedings. See Scott v. Rutherford, 30 Va. App.
176, 189, 516 S.E.2d 225, 232 (1999); Motley v. Virginia State
Bar, 260 Va. 251, 261-62, 536 S.E.2d 101, 106 (2000).
The judgment of the trial court is affirmed.
Affirmed.
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