                        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.


                                - 2 -
     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


                                - 3 -
             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

                                           - 4 -
                       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

                                 - 5 -
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.

                               - 6 -
     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.




                               - 7 -
