dissenting.
Respectfully, I dissent.
I.
The trial judge ought to have surrendered the case pursuant to the timely motion of recusation.1 The Commonwealth recommended a 5-year effective sentence; the trial judge was initially disposed to accept the recommendation; but, to accommodate Jailer Salmons, the court resolved to impose a harsher penalty; the jury fixed the sentence for the Salmons burglary at 5 years; bound by the verdict as to the term, the court nevertheless sentenced Nichols to 10 years by ordering consecutive service. That is what appears from this proceeding, making it one not distinguished for an appearance of integrity.
The Code of Judicial Conduct provides that “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned,” including but not limited to instances where he has a personal bias or prejudice concerning a party, or a known interest which could be substantially affected by the outcome. SCR 4.300 Canon 3 C(l)(a) and (d)(iii). Cf. *267KRS 26A.015(2). I suggest that the judge here as much as confessed partiality, interest, and bias when he stated on the record that his sentencing decision would be influenced by whether the result would make Mr. Salmons “mad at the Judge.”2
The majority would have it that the judge’s concern for Mr. Salmons was no more than that due any burglary victim pursuant to KRS 421.500, dealing with victim-impact information as a factor in sentencing. I do not fault a trial court for its concern for a victim, as a victim. Here, however, it is evident that the trial court’s solicitude toward Jailer Salmons was due not to the impact of the crime upon the victim, but due to the personal relationship between the victim and the court: “Well, I certainly don’t want Mr. Salmons mad at the Judge.” While there are a number of salutary reasons for considering genuine victim-impact information, not counted among them, because not relevant to tailoring the penalty to the crime, is the preservation of an individual’s personal esteem for the judge.
Moreover, no genuine victim-impact information is to be found in this record. KRS 421.500(3)(c) requires law enforcement personnel to inform the victim as to the “criminal justice process as it involves the participation of the victim”; and subsection (5)(b) requires the prosecutor, “[i]f the victims so desire,” to notify a victim of his/her “right to make an impact statement for consideration by the court at the time of sentencing.” This right to make an impact statement is more fully discussed in KRS 421.520, which, being more specific (and headed “Victim Impact Statement”), must control where it is inconsistent with Section .500. Section .520 implies that “the victim has the right to submit a written victim impact statement” (emphasis added), which “may contain, but need not be limited to, a description of the nature and extent of any physical, psychological or financial harm suffered by the victim ... and the victim’s recommendation for an appropriate sentence.” The statute purports to compel the court to consider the statement prior to making its sentencing decision.
First, deaf to cries of nitpicking, I observe that the present record is devoid of written victim-impact statements. One may also, as I have, search in vain for even an oral statement by any victim. Where does the statute provide for, and why should we (or a trial court) countenance, the prosecutor’s hearsay reports of victims’ statements?
Second, what the prosecutor did report was that the three victims’ objections “boil down to they do not believe in concurrent sentencing for someone who has committed so many offenses.” Where in this is any “recommendation for an appropriate sentence”? Where is any information as to impact of a crime upon a victim? I venture that the statute intends that a victim may recommend a “sentence” (that is, a term of years — KRS 532.060) appropriate for the crime committed against him/her, but not consecutive sentencing for crimes committed against others. This view is neatly supported by the definition of “victim” found in KRS 421.500(1):
“[Vjictim” means an individual who suffers direct or threatened physical, financial, or emotional harm as the result of the commission of a crime....
(Emphasis added.) Cf. KRS 421.520(2). A victim-impact statement is not a committee report. Perhaps the court would have had to consider victim A’s (written!) opinion that Nichols should draw 999 years for burglarizing A’s home; but the court’s consideration of (indeed, deference to) A’s opinion that Nichols should be sentenced more harshly (or consecutively) for other crimes, of which A was not a victim, went far beyond the intent of the statute.
*268Furthermore, it went far beyond the bounds of due process. Concede that the impact upon an individual victim ought to be considered in fixing a sentence for a crime. Concede even that the impact upon each victim is relevant to determining whether multiple sentences should run concurrently or consecutively. But do not concede, I say, that the discretion to assess the effect of accumulated offenses rests elsewhere than in an impartial jury and/or an impartial judge; do not concede that it may be delegated, even in part, to a (justifiably) biased victim.
II.
The trial court erred in refusing to suppress evidence of Nichols’ incriminating statements and other evidence obtained as a result of those statements.
Indeed, true to its word, the Commonwealth recommended throughout that Nichols be sentenced to all-concurrent terms. But the Commonwealth’s bad faith occurred long before the court proceedings. When the plea agreement was forged, Nichols was incarcerated in Ohio, not going anywhere soon. He was represented by an Ohio attorney (whose conversance with Kentucky law we may not presume). Apparently Nichols was informed by the Commonwealth’s Attorney that the court would not be bound by a plea agreement. Likely he was not informed that the victims of his crimes could make victim-impact statements which might affect the court’s receptivity to the bargain. Certainly he was not informed that the Commonwealth had breached its statutory duty to consult with the victims about disposing of the case by a negotiated plea. KRS 421.500(6).3
Had the Commonwealth obeyed the law, it would have been in a position to know that its recommendation might not carry its usual weight in this case, and would have been constrained by good faith to apprise Nichols of the victims’ attitudes and rights. The Commonwealth may not now claim good faith in ignorance when the ignorance would have been dispelled by compliance with the law. I cannot agree that Nichols “assumed the risk” {ante at 266) that the law enforcement authorities would violate the law and negotiate a plea arrangement without consulting with the victims. To the contrary, Nichols was entitled to assume that such consultation had token place and, from the Commonwealth’s silence, that the victims had voiced no objections to the agreement. As it happened, Nichols got much less than he had bargained for, much less than he had a right to expect.
STEPHENS, C.J., and LEIBSON, J., join in this dissent.. For what it’s worth, and contrary to the majority’s implication, the issue is whether the trial court erred in denying a defense motion recus-ing, not whether the judge should have acted sua sponte. (Ante at 266.) The defense motion alleged that "[a]t least two complaining witnesses in the case work directly with the Honorable Trial Judge in the day to day function of the Greenup County Circuit Court.” It is wholly fair to conclude that the judge knew that one of the witnesses referred to was Jailer Salmons. Although no order was entered, the court calendar reflects that the motion was “overruled” two days after filing.
. It is also interesting to note that, whereas the defendant had requested an expeditious transfer out of Mr. Salmons’ jail due to hard feelings, the order to transport the prisoner recited: “The defendant is being sent to the Boyd County Jail for holding because he is accused of the burglary of the home of the Greenup County Jailer, and the Greenup County Jailer has stated that they do not desire to have the defendant lodged in the jail.” The jailer’s statement was not made on the record.
. KRS 421.540 provides that "The failure to provide a right, notice or privilege to a victim ... under KRS 421.510 to 421.550 ... shall not be grounds for the defendant to seek to have the conviction or sentence set aside.” One, this section by its terms does not apply to KRS 421.500. Two, the statute does not purport to prohibit suppression of evidence, prior to a conviction or sentence.