Arthur C. Kreiger, II v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
ARTHUR C. KREIGER, II
MEMORANDUM OPINION *
v. Record No. 2317-99-2 PER CURIAM
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
(Arthur C. Kreiger, II, pro se, on brief).
No brief for appellee.
Arthur C. Kreiger (appellant) filed a timely appeal from an
order of the Circuit Court of the City of Petersburg (trial
court), finding him in civil contempt for failing to comply with
an earlier order of the court. Appellant contends the trial
court abused it discretion by refusing to assign a different
judge to preside over the show cause hearing. We conclude this
appeal is without merit and summarily affirm the judgment of the
trial court. See Rule 5A:27.
Background
On November 1, 1996, the trial court, Judge James F.
D'Alton, Jr., presiding, convicted appellant of maintaining a
public nuisance and fined him $2,500. The court suspended
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
$2,000 of that fine on the condition that appellant clean up the
subject property and make certain repairs to the house on the
property. Appellant filed a timely appeal from the trial
court's judgment.
On July 11, 1997, the Commonwealth filed a motion to
reinstate the case on the court's active docket and requested
that appellant be required to show cause why he should not be
held in contempt of court for failing to comply with the court's
November 1, 1996 order. Following a July 25, 1997 hearing, the
trial court continued the case. 1
On July 25, 1997, appellant filed a warrant in debt against
Judge D'Alton in Petersburg General District Court seeking
ninety dollars in lost wages and thirty dollars in court costs.
Appellant alleged in the warrant in debt that Judge D'Alton was
negligent in requiring him to appear in court on the
Commonwealth's motion to reinstate when the court did not have
jurisdiction. 2 The district court subsequently dismissed the
warrant in debt, and the record does not reflect that appellant
ever perfected an appeal to circuit court.
On July 30, 1999, after appellant had exhausted his appeals
of the nuisance conviction to this Court and the Supreme Court
1
The transcript from the July 25, 1997 hearing was not
timely filed and was not considered in addressing this appeal.
2
Appellant also filed a warrant in debt against the City
Attorney, who was prosecuting the criminal action against
appellant.
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of Virginia, the Commonwealth again petitioned the trial court
to have the matter reinstated on the court's active docket and
to require appellant to show cause why his suspended fine should
not be revoked due to his failure to comply with the conditions
of suspension. Appellant responded with a motion requesting
that "an impartial judge . . . be assigned" to the matter. On
August 24, 1999, without a hearing, Judge Oliver A. Pollard,
Jr., entered an order denying appellant's motion.
On August 30, 1999, following an August 27, 1999 hearing, 3
the trial court entered an order finding appellant in civil
contempt for his failure to comply with the court's November 1,
1996 order and reinstating the $2,000 balance of the fine
previously suspended.
Analysis
Canon 3(E) of the Canons of Judicial Conduct provides that
"[a] judge shall disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be
questioned." "The requirement of this Canon is clear; 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). Moreover,
"[j]udges are presumed to be aware of the provisions of Canon
3." Id. "[W]hether a trial judge should recuse himself or
3
No transcript or statement of facts was filed for this
hearing.
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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, 315, 416 S.E.2d 451,
459-60 (1992) (citations omitted), aff'd, 246 Va. 337, 437
S.E.2d 914 (1993).
In his motion seeking the assignment of a new judge to his
case, appellant asserted that his "rights to counsel, evidence
and proper procedures" were violated by Judge D'Alton. But
appellant did not specify how the trial judge had allegedly
violated these rights. Moreover, the lawsuit appellant filed
against the trial judge had been dismissed two years previously.
Appellant simply failed to state sufficient grounds justifying
the trial court in assigning a new judge. Accordingly, there
was no abuse of discretion in denying appellant's motion. 4
Affirmed.
4
In his opening brief, appellant asserts that Judge D'Alton
was unduly influenced by the City Attorney and that the judge
was biased against him because appellant had prevailed in an
appeal to circuit court in a case where Judge D'Alton had
presided over the case in general district court. Appellant did
not present these arguments in his original motion, and we will
not consider them for the first time on appeal. See Rule 5A:18.
We question why a judge other than the challenged judge
decided this motion without a hearing. Appellant did not
question this aspect of the court's ruling, and we will not
address it sua sponte.
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