Dwayne Ronald Harley v Commonwealth

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.

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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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a felony has an absolute right to have a presentence
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.