COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp ∗
Argued at Alexandria, Virginia
DELORES CHAVIRA PAYAN, A/K/A
DELORES-ARMANDO PAYAN, A/K/A
ARMANDO PAYAN CHAVIRA, A/K/A
JOSE PALO PAYAN, A/K/A
CHAUIRA DELORES PAYAN
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2373-99-4 JUDGE ROSEMARIE ANNUNZIATA
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, Jr., Judge
S. Jane Chittom (Elwood Earl Sanders, Jr.,
Appellate Defender; Public Defender
Commission, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Delores Chavira Payan, 1 appellant, appeals his convictions
for possession with intent to distribute more than one half
ounce and less than five pounds of marijuana, and two counts of
∗
Retired Judge James E. Kulp took part in the consideration
of this case by designation, pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Payan has numerous aliases. He was indicted under the
name Delores Chavira Payan.
distribution of the same amount of marijuana, 2 on the ground that
the trial court erred when it considered at the sentencing
hearing, sua sponte, evidence the court refused to admit at the
plea hearing as a basis for exceeding the sentences recommended
by the voluntary sentencing guidelines established pursuant to
Code §§ 17.1-805 and 19.2-298.01. We find no error and affirm
his sentences.
BACKGROUND
At a plea hearing on April 7, 1999, Payan pled nolo
contendere to the charges against him, and the court accepted
his plea. During the hearing, the prosecution proffered the
evidence it could have presented at trial. This evidence
included, inter alia, three photographs of Payan showing him
standing next to a large airplane at an unidentified location in
Mexico. Payan objected that the photographs would be
inadmissible because they were irrelevant to the charges. The
court sustained the objection.
At the sentencing hearing held on June 28, 1999, the
Commonwealth introduced evidence through the testimony of
Investigator Alfred Buynar of the Page County Sheriff's
Department. Buynar testified, inter alia, that Payan was an
associate of an individual named Flores, who was known to engage
2
Each count is a Class 5 felony. See Code
§ 18.2-248.1(a)(2).
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in the distribution of illegal drugs brought to Virginia from
the Texas-Mexico border. The court asked Buynar to "describe"
the photographs of Payan and the airplane in Mexico, which the
court had rejected at the plea hearing. Payan again objected,
observing that the photos "weren't considered at the [plea
hearing], and I don't see what they have to do with sentencing.
If they were rejected at the [hearing], I don't see why [the
court] ought to consider them now." The court overruled the
objection, stating only that "Your objection is noted, but
overruled."
In imposing its sentence, the court noted that the
sentencing guidelines were "purely voluntary" and that it found
the guidelines on the distribution convictions "to be woefully
inadequate under the circumstances," stating several reasons for
its upward departure from them:
[T]he circumstances, which were exacerbating
in this case, are, number one, the large
amount of contraband which the Defendant was
arrested with, the large amount of money in
his possession, the record of narcotics
transactions, the evidence of being involved
in an air-freight operation, numerous
aliases that were used by him at different
times, even in this proceeding, and false
IDs a number of different false Ids,
substantiate, in this Court's judgement, the
seriousness of the crime.
(Emphasis added). Other than the photographs of Payan with the
airplane in Mexico, the Commonwealth adduced evidence that Payan
was associated with an individual named Flores, known to be
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engaged in the importation of illegal drugs into the
Commonwealth from Mexico. The trial court's reference to such
"an air-freight operation" therefore reflected its consideration
of the photos it had previously found, on Payan's objection on
grounds of relevancy, to be inadmissible on the issue of guilt.
Payan was sentenced to five years on each conviction, with
the two distribution counts running concurrently, but
consecutively with the possession count, which the court
suspended. This appeal followed.
ANALYSIS
"The sentencing guidelines are not binding on the trial
judge." Hunt v. Commonwealth, 25 Va. App. 395, 404, 488 S.E.2d
672, 677 (1997) (citing Belcher v. Commonwealth, 17 Va. App. 44,
45, 435 S.E.2d 160, 161 (1993)). "Rather, they are a tool
designed to assist the judge in fixing an appropriate
punishment." Id. "If [a] sentence was within the range set by
the legislature [for the crime of which the defendant was
convicted], an appellate court will not interfere with the
judgment." Hudson v. Commonwealth, 10 Va. App. 158, 160-61, 390
S.E.2d 509, 510 (1990).
During the sentencing phase of a bench trial, the court
should hear relevant, admissible evidence related to punishment.
See Runyon v. Commonwealth, 29 Va. App. 573, 576, 513 S.E.2d
872, 874 (1999) (citing Code § 19.2-295.1). "Determination of
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the admissibility of such evidence lies within the sound
discretion of the trial court." Id. (citing Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
The court "'must be allowed to consider . . . all relevant
evidence'" in the exercise of its discretion in sentencing.
Shifflett v. Commonwealth, 26 Va. App. 254, 259, 494 S.E.2d 163,
166 (1997) (en banc) (quoting Jurek v. Texas, 428 U.S. 262, 271
(1976)). Such evidence includes any "'responsible unsworn or
"out-of-court" information relative to the circumstances of the
crime . . . .'" Harris v. Commonwealth, 26 Va. App. 794, 809,
497 S.E.2d 165, 172 (1998) (citations omitted); see Shifflett,
26 Va. App. at 259, 494 S.E.2d at 166 ("For the determination of
sentences, justice generally requires consideration of more than
the particular acts by which the crime was committed and that
there be taken into account the circumstances of the offense
. . . ." 3 (quoting Pennsylvania v. Ashe, 302 U.S. 51, 55
3
In McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49
(1949), the Supreme Court of Virginia observed:
"Tribunals passing on the guilt of a
defendant always have been hedged in by
strict evidentiary procedural limitations.
But both before and since the American
colonies became a nation, courts in this
country and in England practiced a policy
under which a sentencing judge could
exercise a wide discretion in the sources
and types of evidence used to assist him in
determining the kind and extent of
punishment to be imposed within limits fixed
by law."
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(1937))). "This broad rule of inclusion is tempered by the
requirement that the information bear some indicia of
reliability." Moses v. Commonwealth, 27 Va. App. 293, 302, 498
S.E.2d 451, 456 (1998) (citing Alger v. Commonwealth, 19
Va. App. 252, 258, 450 S.E.2d 765, 768 (1994) (citing United
States v. Fatico, 579 F.2d 707, 712-13 (2d Cir. 1978), cert.
denied, 440 U.S. 1073 (1980))). However, such evidence is
admissible at the sentencing hearing if the defendant does not
dispute its truth. See Fatico, 579 F.2d at 713.
The trial court thus enjoyed broad discretion in its
consideration of evidence at Payan's sentencing hearing. Within
its sound discretion, the court was permitted to consider all
relevant evidence of the circumstances surrounding Payan's
crimes. Such evidence included any "responsible unsworn"
evidence before the court. Although such evidence generally
must bear "indicia of reliability," reliability is presumed if
the defendant does not challenge the veracity of the evidence.
At the plea hearing, the court agreed with Payan that the
photographs were irrelevant to the determination of his guilt on
the charges of possession and distribution of marijuana, and
accordingly rejected the Commonwealth's proffer of the
Id. at 859-60, 55 S.E.2d at 55 (quoting Williams v. New York,
337 U.S. 241, 246 (1949)). Thus, in imposing a sentence upon a
convicted criminal, the court is charged with making "the
punishment fit the offender and not merely the crime." Id. at
860, 55 S.E.2d at 55.
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photographs as evidence supporting Payan's guilt. Payan decided
not to contest the charges against him, 4 leaving the court free
to "'consider him guilty for the purposes of imposing judgment
and sentence.'" Jefferson v. Commonwealth, 27 Va. App. 477,
485, 500 S.E.2d 219, 223 (1998) (quoting Commonwealth v.
Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998)). In the
course of the sentencing hearing which followed, the court could
properly consider all relevant evidence concerning the
circumstances of Payan's crimes. Although the court had
previously determined that the photographs of Payan standing
next to a large airplane in Mexico were irrelevant to the
determination of his guilt of the crimes charged, the court was
not precluded from considering them relevant, "'responsible
unsworn . . . information relative to the circumstances of the
crime . . . .'" Harris, 26 Va. App. at 809, 497 S.E.2d at 172
(citation omitted). Investigator Buynar testified that his
investigation had revealed Payan's association with an
individual named Flores and that this individual was known to be
4
While "[a] plea of nolo contendere . . . is neither a
confession of guilt nor a declaration of innocence equivalent to
a plea of not guilty . . . [n]onetheless, by entering the plea
. . . the defendant implies a confession . . . of the truth of
the charge . . . [and] agrees that the court may consider him
guilty for the purposes of imposing judgment and sentence."
Allen v. Commonwealth, 27 Va. App. 726, 729 n.1, 501 S.E.2d 441,
442 n.1 (1998) (quoting Jefferson v. Commonwealth, 27 Va. App.
477, 484-85, 500 S.E.2d 219, 223 (1998)) (internal quotations
omitted).
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engaged in the importation of illegal drugs into the
Commonwealth from Mexico. He also testified that the
photographs were recovered from Payan's residence when the
police executed a search warrant. Taken together, the evidence
tended to establish Payan's involvement with the importation of
drugs as Buynar described. We hold the court did not abuse its
discretion in considering the photographs. Because the
sentences imposed, five years for each count, were well "within
the range set by the legislature" for Class 5 felonies in Code
§ 18.2-10, see Hudson, 10 Va. App. at 160-61, 390 S.E.2d at 510,
and the evidence considered at the hearing supported those
sentences, we affirm the court's decision.
Affirmed.
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