                   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

                               - 6 -
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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