COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Elder 

Argued at Richmond, Virginia 

DWAYNE RONALD HARLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 2734-96-2 CHIEF JUDGE NORMAN K. MOON 

 NOVEMBER 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Matthew T. Paulk, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Dwayne Ronald Harley was convicted of robbery in violation 

of Code § 18.2-58 and sentenced to twenty-five years in prison, 

with thirteen years suspended, in a bench trial on July 7, 1995. 

 In an unpublished opinion, we found that the trial court failed 

to consider the presentencing report and, thus, remanded the case 

for resentencing. 

 Before the resentencing hearing, Harley's counsel moved the 

judge to recuse himself based on his alleged statements 

expressing displeasure with our decision, including an assertion 

that the resentencing procedure was "a waste of taxpayers' 

dollars." The judge replied, "Well, I really think it probably 

was." He said that he had studied the case and read the 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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presentence report before imposing the original sentence, and he 

"really [did not] know how [he] really could change things." 

 Nevertheless, the judge assured defense counsel that he had 

not "made up [his] mind" regarding the sentence to be imposed, 

though he was "not going to raise the sentence." Furthermore, 

although he admitted that he was a "little upset" at our 

remanding the case, he noted that "no matter how I felt about 

this case or how mad I would get, I would not use it against 

[Harley]. . . . I might have been a bit disappointed [that the 

case was remanded], but it did not inflame my passions." The 

judge then denied the recusal motion. 

 Defense counsel noted several corrections in the presentence 

report and said the guidelines should be recalculated to range 

from two years, four months to four years, seven months. The 

Commonwealth argued that because Harley had unlawfully killed a 

man seven years earlier, and in the instant case he had beaten 

the victim badly to accomplish the robbery, a sentence of 

twenty-five years with thirteen years suspended was appropriate. 

 The judge noted that he was not bound by the guidelines and 

asserted that the circumstances of the crime and Harley's 

background warranted a twenty-five- to fifty-year sentence. The 

judge acknowledged the mitigating factors presented in the 

presentencing report and then again sentenced Harley to 

twenty-five years in prison, with thirteen years suspended. 

 Harley asserts that the judge abused his discretion in 

refusing to recuse himself from the resentencing hearing. "It is 
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within the trial judge's discretion to determine whether he 

harbors bias or prejudice which will impair his ability to give 

the defendant a fair trial." Terrell v. Commonwealth, 12 Va. 

App. 285, 293, 403 S.E.2d 387, 391 (1991). The trial court's 

determinations will be reversed only for abuse of that 

discretion. Id. 

 As defense counsel noted, Canon 3 (C) of the Canons of 

Judicial Conduct requires that "a judge must diligently avoid not 

only impropriety but a reasonable appearance of impropriety as 

well." Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 

741, 743 (1996). Nevertheless, "[e]ven when circumstances create 

an appearance of bias, unless the conduct of the judge is shown 

to have affected the outcome of the case," the court's 

determination will not be reversed. Welsh v. Commonwealth, 14 

Va. App. 300, 317, 416 S.E.2d 451, 461 (1992), aff'd, 246 Va. 

337, 437 S.E.2d 914 (1993). 

 In denying Harley's recusal motion, the judge noted that he 

believed he did not possess any bias or prejudice and that "no 

matter how I felt about this case or how mad I would get, I would 

not use it against [Harley]." The judge reviewed the 

presentencing report, listened to counsel's arguments and 

Harley's statement, and articulated the reasons for the length of 

Harley's sentence. Based upon this record, we find that Harley 

failed to demonstrate that the trial judge harbored such bias or 
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prejudice so as to deny him a fair trial. Accordingly, we find 

no abuse of discretion and affirm. 

 Affirmed.