Dwayne Ronald Harley v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 23, 1996
• Docket: 1717952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick Argued at Richmond, Virginia

DWAYNE RONALD HARLEY MEMORANDUM OPINION * BY v. Record No. 1717-95-2 JUDGE JAMES W. BENTON, JR. JULY 23, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Cullen D. Seltzer, Assistant Public Defender (David J. Johnson, Public Defender, on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Dwayne Ronald Harley was convicted of robbery. On this

appeal, he contends that the trial judge deprived him of his

right to a fair sentencing hearing. We agree and remand for

resentencing.

Harley was indicted for robbery and malicious wounding, and

he was tried for those offenses at a bench trial. At the

conclusion of the evidence, the trial judge found Harley guilty

of robbery and took under advisement the verdict on the malicious

wounding charge. Harley's counsel requested a presentence

report.

At the sentencing hearing, as Harley's counsel recited two

items in the presentence report that were incorrect, the trial * Pursuant to Code § 17-116.010 this opinion is not designated for publication. judge indicated that he did not have a copy of the presentence

report. After the probation officer provided the judge with a

copy of the report, Harley's counsel asked the trial judge if he

would like the opportunity to read the report. The judge

declined.

Harley's counsel made statements on Harley's behalf and

suggested a sentence within the guidelines. After Harley made a

statement, the trial judge found him not guilty of malicious

wounding and sentenced him on the robbery charge to twenty-five

years in prison, with thirteen years suspended. Harley's counsel

filed a motion for a sentence rehearing because the trial judge

did not read the presentence report prior to sentencing Harley.

The trial judge denied the motion. Code § 19.2-299 reads in pertinent part as follows: When a person is tried in a circuit court upon a felony charge . . . and is adjudged guilty of such charge, the court . . . on the motion of the defendant shall, before imposing sentence direct a probation officer of such court to thoroughly investigate and report upon the history of the accused, including a report of the accused's criminal record as an adult and available juvenile court records, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. The probation officer, after having furnished a copy of this report at least five days prior to sentencing to counsel for the accused and the attorney for the Commonwealth for their permanent use, shall submit his report in advance of the sentencing hearing to the judge in chambers, who shall keep such report confidential.

By the explicit terms of the statute, "[a] defendant convicted of

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investigation and report prepared upon his request and submitted

to the court prior to the pronouncement of sentence." Duncan v.

Commonwealth, 2 Va. App. 342, 345-46, 343 S.E.2d 392, 394 (1986).

See also Smith v. Commonwealth, 217 Va. 329, 330, 228 S.E.2d

557, 558 (1976).

The Commonwealth argues that the statute "does not require

the trial judge to read the pre-sentence report as long as he considers the information contained in the report." We disagree.

"The General Assembly, in carrying out its appropriate

legislative function, has established a system for the

ascertainment of punishment for those who have been convicted of

crime." Duncan, 2 Va. App. at 344, 343 S.E.2d at 393. A

defendant's "entitle[ment] to this pre-sentence procedure as a

matter of right," Smith, 217 Va. at 330, 228 S.E.2d at 558, would

be a hollow right, indeed, if the trial judge had no obligation

to read the presentence report. The sentencing procedure is not

merely an abstraction that is satisfied by a trial ritual. We

hold that concomitant with the defendant's right to the

presentence report is the right to have the sentencing judge read

the report before passing sentence.

Accordingly, that portion of the final order imposing

sentence is reversed and the case is remanded for resentencing

consistent with the direction of this opinion. Affirmed in part, reversed in part and remanded.

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