COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Humphreys and Friedman
FELIX MARTINEZ PACHECO
MEMORANDUM OPINION* BY
v. Record No. 1044-21-3 CHIEF JUDGE MARLA GRAFF DECKER
JUNE 21, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
(John M. Bodenhamer; Big Law Valley, PLLC, on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior
Assistant Attorney General; on brief), for appellee. Appellee
submitting on brief.
Felix Martinez Pacheco appeals the revocation of his previously suspended sentence. He
argues that the trial court erred by failing to consider a significant relevant factor and by
sentencing him to serve six years of active time. The active sentence imposed was within the
statutory maximum and was not an abuse of discretion. Therefore, we affirm the decision of the
trial court.
I. BACKGROUND1
The instant appeal involves the appellant’s third revocation proceeding. In 2009, the
appellant was convicted of taking indecent liberties with a child, failing to register as a sex
offender, and making an obscene display in a public place. The trial court imposed a total of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
On appeal of the revocation of a suspended sentence, we review the evidence in the
light most favorable to the Commonwealth, as the party who prevailed below. Jacobs v.
Commonwealth, 61 Va. App. 529, 535 (2013).
fifteen years and twelve months for those offenses and suspended eight years and twelve months.
Later that same year, the appellant was convicted of assaulting a law enforcement officer. He
received a sentence of five years, with three years and five months suspended. In all, the
appellant had eight years and seven months of active time to serve in prison with the remaining
time suspended.
The first revocation proceeding occurred in June 2019. At that time, the trial court found
that the appellant violated his probation due to a new charge of assault on a law enforcement
officer while he was incarcerated. The violation report also reflected that the appellant had
committed twenty-two disciplinary infractions while he was incarcerated. Those infractions
included “lewd or obscene acts directed toward or in the presence of another, . . . indecent
exposure, attempting to commit/engaging in sexual acts with others by consent, . . . and sexual
assault upon or making forcible sexual advances toward an offender.” The court revoked the
previously suspended sentence and resuspended a portion of it, leaving him with twelve months
to serve. The appellant was released from incarceration in September 2019.
Two weeks after his release, the appellant’s probation officer filed a violation report for
his failure to contact the probation office, triggering a second revocation proceeding. The trial
court found that the appellant violated his probation. The court revoked the suspended sentence
and resuspended part of it, leaving him with two years to serve. The appellant was released in
June 2021.
Three days later, the appellant’s probation officer filed a report alleging a violation
because the appellant failed to contact him. At the resulting third revocation hearing in August
2021, the appellant did not contest that he committed the charged violation. The only issue was
his sentence.
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The sentencing guidelines recommended that the appellant serve one to four years. The
appellant asked for leniency based on the technical nature of his violation. He testified that he
registered for the sex offender registry on the day of his release and he did not believe that he
was on probation at the time. His attorney asked him several times if he would comply with the
conditions under which he was released on probation, but the appellant did not respond. The
Commonwealth requested that the court not resuspend any of the remaining time, arguing that
the appellant’s history and statements in court reflected that he was not “amenable” to supervised
probation. The Commonwealth introduced evidence of the prior probation violations as well as
the appellant’s criminal history.
The trial court found that the appellant violated his supervised probation. It revoked his
suspended sentence and resuspended three years and five months, leaving six years for him to
serve. In doing so, the court found that the appellant had “a history of dangerous sexual behavior
and dangerous behavior to law enforcement.” The court also commented that the appellant had
“basically stated he will not comply with probation.” It concluded that no conditions could
“ensure the safety of the people of the Commonwealth.”
II. ANALYSIS
The appellant challenges the sentence imposed upon the revocation of the suspension of
his sentence.2 He claims that the trial court “failed to take into account the incredibly short time
[he] was on probation before proceeding on a violation.” The appellant also contends that the
court failed to consider the fact that he had registered with the sex offender registry promptly
2
He does not challenge the underlying decision to revoke his suspended sentence.
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upon his release.3 He argues that the six-year sentence of active time imposed was an abuse of
discretion.
After imposing a sentence, a trial “court may suspend imposition of sentence or suspend
the sentence in whole or part and in addition may place the defendant on probation under such
conditions as the court shall determine.” Code § 19.2-303. If a trial court subsequently finds
good cause to believe that a defendant violated the terms of his suspended sentence, “then the
court may revoke the suspension and impose” a new sentence. Code § 19.2-306(C).
“The statutes dealing with probation and suspension are remedial and intended to give the
trial court valuable tools to help rehabilitate an offender . . . .” Howell v. Commonwealth, 274
Va. 737, 740 (2007). “When coupled with a suspended sentence, probation represents ‘an act of
grace on the part of the Commonwealth to one who has been convicted and sentenced to a term
of confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Pierce v.
Commonwealth, 48 Va. App. 660, 667 (2006)).
A trial court’s ruling in a revocation proceeding “will not be reversed [on appeal absent]
a clear showing of abuse of discretion.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013)
(quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “[T]he phrase ‘abuse of
discretion’ means that the [trial] court ‘has a range of choice, and that its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of law.’”
Ellis v. Commonwealth, 68 Va. App. 706, 711 (2018) (first alteration in original) (quoting
3
Neither party mentions Code § 19.2-306.1, which took effect July 1, 2021. See 2021
Va. Acts Spec. Sess. I ch. 538. Similarly, the appellant did not argue below that this code section
applied to his case. Therefore, we do not address whether the statute is retroactive. See Rule
5A:18 (providing that generally an objection must be made below for a ruling to constitute “a
basis for reversal”); Rule 5A:20(e) (requiring an appellant to state clearly the “argument . . .
relating to each assignment of error”). See generally Green v. Commonwealth, __ Va. App. __,
__ (June 14, 2022) (holding that Code § 19.2-306.1 did not apply because both the crime
occurred and the prosecution began before the statute’s effective date).
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Sauder v. Ferguson, 289 Va. 449, 459 (2015)). “Only when reasonable jurists could not differ
can we say an abuse of discretion has occurred.” Minh Duy Du v. Commonwealth, 292 Va. 555,
564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). “This bell-shaped
curve of reasonability governing . . . appellate review rests on the venerable belief that the judge
closest to the contest is the judge best able to discern where the equities lie.” Id. (quoting
Sauder, 289 Va. at 459).
Here, the appellant argues that in setting his sentence, the court failed to consider that the
time in which he failed to report to his probation officer was short and that he promptly
registered with the sex offender registry. In determining how much of the appellant’s sentence to
resuspend, the trial court had discretion to weigh the mitigating factors that he presented. See
Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “The exercise of judicial discretion
‘“implies conscientious judgment, not arbitrary action.”’” Rhodes v. Commonwealth, 45
Va. App. 645, 650 (2005) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 (1946)). The
appellate court presumes that a trial court knows the law and applies it correctly. Groves v.
Commonwealth, 50 Va. App. 57, 61-62 (2007). Based on the court’s ruling, it is fair to infer that
the court considered the mitigating evidence as argued by the appellant at the revocation hearing
and simply weighed it as it saw fit. See Henderson v. Commonwealth, 285 Va. 318, 326 (2013)
(inferring a trial court’s finding from its ruling). Against the mitigating factors raised by the
appellant, the court weighed his history of “dangerous behavior” and his testimony
demonstrating a reluctance to comply with probation. Although we recognize that the sentence
exceeded that recommended by the probation violation guidelines, those guidelines “are merely a
‘tool’ to assist the judge in fixing an appropriate punishment.” See Belcher v. Commonwealth,
17 Va. App. 44, 45 (1993) (quoting Hudson v. Commonwealth, 10 Va. App. 158, 161 (1990)). A
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trial court is not bound by them and must review and assess the evidence in each individual case,
as the court did here. See id.
The appellant also contends that the trial court abused its discretion by suspending only
three years and five months of his sentence, leaving him with six years to serve. This argument
is directly contradicted by established law. See Minh Duy Du, 292 Va. at 564 (explaining that a
trial court acts within its discretion when it imposes a sentence within the statutory range). The
trial court was permitted—but not required—to resuspend all or part of the sentence. See
Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). The court knew that the appellant had
a history of violations, “dangerous sexual behavior[,] and dangerous behavior to law
enforcement.” It also found, based on the appellant’s testimony, that he would “not comply with
probation” and that “no set of conditions” could ensure the public’s safety. Our review of the
record supports the conclusion that the trial court properly exercised its discretion. See Price, 51
Va. App. at 448-49 (holding that after the defendant willfully violated the conditions of his
probation by using cocaine and failing to report to his probation officer, the trial court acted
within its discretion by imposing an active period of incarceration); Rhodes, 45 Va. App. at
650-51 (affirming the revocation of a sentence suspension and imposition of a portion of the
remaining time after the defendant violated the terms of his suspended sentence by withdrawing
from a detention center program).
III. CONCLUSION
The trial court did not abuse its discretion by resuspending three years and five months of
the appellant’s sentence and ordering that he serve six years. Consequently, we affirm the trial
court’s judgment.
Affirmed.
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