COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
RANDY WARREN JEFFERSON
MEMORANDUM OPINION * BY
v. Record No. 2797-99-1 JUDGE G. STEVEN AGEE
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Michelle J. Harris (Abrons, Fasanaro &
Sceviour, P.L.L.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, Randy Warren Jefferson, was convicted of
possession of cocaine with intent to distribute, possession of
heroin with intent to distribute, possession of a firearm while
in possession of cocaine and possession of a firearm by a
convicted felon. On appeal, he argues the trial court committed
reversible error in denying his motion for a new trial because
the trial judge had once represented the appellant. We disagree
and affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
The appellant was convicted of the hereinabove recited
charges at a bench trial.
At the sentencing hearing three months later, the appellant
moved for a new trial, alleging the trial judge had represented
him in 1977 on a grand larceny charge, but he provided no proof
of that fact. The appellant had not given his attorney this
information until a few weeks before the sentencing hearing.
The appellant's sole argument was "perhaps the Court would be
prejudiced" against him because of their past association.
The trial judge responded:
I have absolutely no recollection of this
man. I have no idea what my representation
was, what the nature of the charge was, and
didn't at the time the case was tried
. . . . [I]f I had any recollection
whatsoever of him or any feeling that I had
for him or against him or anything of that
sort, then I may have considered it; but at
this juncture, it's too little too late
. . . . I made a judgment in the case
without any knowledge about him or memory of
him whatsoever, and I find that there is no
prejudice or even appearance of impropriety
. . . .
The sentencing guidelines for the appellant ranged from six
years, six months to ten years, nine months. The Commonwealth's
attorney noted at the sentencing hearing that the appellant had
an extensive criminal record, having been convicted of ten
felonies, forty-five misdemeanors and three criminal traffic
offenses. Furthermore, he had been incarcerated four times with
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sentences over one year and thirty-two times for sentences of
less than one year. The appellant received a ten-year sentence.
The appellant appears to argue on appeal that the trial
judge's unrecalled representation of the appellant 22 years
earlier should in and of itself require a new trial. Further
the appellant argues his sentence, although within the
applicable sentencing guidelines, is proof of bias by the trial
judge.
Analysis
"[T]he trial judge must exercise discretion in determining
whether he or she harbors bias or prejudice that might impair
the judge's ability to give the defendant a fair trial." Davis
v. Commonwealth, 21 Va. App. 587, 592, 466 S.E.2d 741, 743
(1996) (citations omitted).
In this case, as in Davis, the trial judge had no
recollection of the appellant or his alleged prior
representation of him. Further, the appellant did not remember
the judge until after trial and before sentencing. The record
clearly reflects that the trial judge held no bias or prejudice
toward the appellant and, therefore, did not abuse his
discretion in refusing to recuse himself. The trial court did
not err in refusing to grant the motion for a new trial.
The appellant's argument regarding his sentence being at
the upper end of the applicable sentencing guidelines is without
merit. The sentences imposed were well within the statutory
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penalty ranges for the offenses. See Code §§ 18.2-248(C),
18.2-308.2, 18.2-308.4(B). Where the trial court imposes a
sentence falling within the limits set by the legislature, no
abuse of discretion occurs and the court's decision should not
be overturned on appeal. See Abdo v. Commonwealth, 218 Va. 473,
479, 237 S.E.2d 900, 903 (1977); Robinson v. Commonwealth, 13
Va. App. 540, 542, 413 S.E.2d 661, 662 (1992).
The appellant's convictions are affirmed.
Affirmed.
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Benton, J., concurring.
In pertinent part, the Cannons of Judicial Conduct for the
Commonwealth of Virginia provide that "[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." Canon 3(E)(1)(a). In
addition, we have held as follows:
As a constitutional matter, due process
considerations mandate recusal only where
the judge has "a direct, personal,
substantial, pecuniary interest" in the
outcome of a case. While bias may be so
pervasive as to offend due process, "only in
the most extreme of cases would
disqualification on this basis be
constitutionally required." In fact,
"matters of kinship, personal bias, state
policy, [and] remoteness of interest, would
seem generally to be matters merely of
legislative discretion." In Virginia,
whether a trial judge should recuse himself
or herself is measured by whether he or she
harbors "such bias or prejudice as would
deny the defendant a fair trial," and is a
matter left to the reasonable discretion of
the trial court.
Welsh v. Commonwealth, 14 Va. App. 300, 314-15, 416 S.E.2d 451,
459-60 (1992) (citations omitted).
The record establishes that the trial judge convicted Randy
Warren Jefferson at a bench trial on August 30, 1999. The
motion for recusal was made orally at the sentencing hearing on
November 23, 1999. At that time, Jefferson's counsel
represented to the trial judge that Jefferson informed her on
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November 2, 1999 of his recollection that the trial judge had
represented Jefferson in a criminal matter in 1977. The trial
judge did not have an independent recollection of Jefferson or
of the prior representation.
I would hold that the oral motion was insufficient to
establish partiality and was untimely. Clearly, under
appropriate circumstances evidence might reasonably establish
that an attorney's appraisal of his client during the course of
the attorney-client relationship may be such as to cause the
attorney, who later becomes a judge, to harbor personal bias
against the client. Jefferson's claim in this case, however,
relies on a mere allegation that the judge would be biased
against him solely because of the alleged prior representation.
I believe that the motion was legally insufficient because it
lacked an adequate factual basis. The mere existence of the
prior representation is not ipso facto evidence of partiality.
See Grimes v. State, 366 N.E.2d 639, 642 (Ind. 1977). The judge
stated on the record that he did not recall the representation.
Moreover, the cursory information Jefferson's counsel orally
provided the judge about the representation alleged no
circumstances that would suggest impartiality and, therefore,
was insufficient.
I also believe Jefferson's motion for a retrial was not
timely. Although Jefferson was in the presence of the judge
during the bench trial, he disclosed the allegation to his
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counsel only after the judge had convicted him. Jefferson's
counsel waited another three weeks after Jefferson's disclosure
until the sentencing hearing to notify the trial judge. No
explanation was given for the delay.
At the very least, Jefferson could have alerted the trial
judge and the prosecutor of this allegation by written motion as
soon as the problem became apparent. In that manner, the trial
judge could have researched the allegation to determine its
accuracy. As it was, the motion was made orally at the
sentencing hearing, almost ninety days after the finding of
guilt and without factual support. See Akers v. Commonwealth,
155 Va. 1046, 1053, 156 S.E. 763, 765 (1931) (holding that an
objection to the trial judge's sitting on the case made "after
one continuance, bail and an adverse verdict came too late").
The timing appears to be an attempt by Jefferson to shop for
another judge after his conviction in the hope of gaining a more
favorable outcome.
For these reasons, I concur in affirming the convictions.
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