                                COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Alston and Senior Judge Willis
Argued at Richmond, Virginia


ARTHUR SHANNON SIZER
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1465-09-2                                  JUDGE ROSSIE D. ALSTON, JR.
                                                                  AUGUST 17, 2010
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF CAROLINE COUNTY
                            Paul M. Peatross, Jr., Judge Designate

                 Robert E. Walker, Jr. (Robert E. Walker & Associates, P.C., on
                 brief), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Arthur Shannon Sizer (appellant) appeals his sentence for three counts of distribution of

cocaine, in violation of Code § 18.2-248. Appellant contends the Commonwealth deprived him

of his due process rights by dishonoring a plea agreement and eliciting testimony at appellant’s

sentencing hearing regarding charges that were nolle prosequied by the Commonwealth. For the

reasons that follow, we find no error, and we affirm appellant’s sentence.

                                        I. BACKGROUND

       The facts leading to appellant’s convictions are not in dispute. Therefore, this opinion

recites only those facts and incidents of the proceedings as are necessary to the parties’

understanding of this appeal.

       On February 23, 2009, appellant pled guilty to three counts of distribution of cocaine, in

violation of Code § 18.2-248. Before the court entered appellant’s guilty pleas, the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth noted that it anticipated that appellant would plead guilty in exchange for the

Commonwealth nolle prosequing two charges against appellant for conspiracy to distribute or

possess with intent to distribute cocaine, in violation of Code § 18.2-256. However, the parties

represented to the trial court that there was no written plea agreement nor was the

Commonwealth providing a sentencing recommendation. Additionally, appellant indicated that

no one had made him any promises concerning his pleas. The trial court accepted appellant’s

guilty pleas and upon hearing evidence from the Commonwealth found appellant guilty of the

offenses.

       Prior to sentencing, the trial court requested a presentence investigation report. The

report listed appellant’s indictments for conspiracy and noted that those charges were nolle

prosequied. The report provided sentencing guidelines for appellant’s cocaine convictions,

recommending a total sentence between three years, nine months and six years, three months

incarceration.

       At appellant’s sentencing hearing on May 26, 2009, the Commonwealth called

Investigator T. Nutter (Nutter) to testify regarding the facts of the underlying cocaine

convictions. Nutter stated that on three occasions, with the aid of at least one confidential

informant, Nutter purchased a total of $350 worth of cocaine from appellant.

       The Commonwealth asked Nutter whether he was “able to establish any known

associations of [appellant] with illicit drug operations or markets.” Appellant objected, arguing

the Commonwealth failed to lay a foundation for Nutter’s testimony regarding appellant’s drug

“associations.” In direct response to appellant’s objection, the Commonwealth laid a foundation

by asking Nutter to describe how he determined that appellant was distributing cocaine. Nutter

testified that he used thirteen confidential informants to obtain information against appellant.

Appellant again objected, arguing the Commonwealth was improperly eliciting information

                                                -2-
regarding behavior for which appellant was “not charged.” Appellant also claimed that in

discussing information provided by confidential informants through this witness, the

Commonwealth was denying appellant the right to confront his accusers. The trial court

overruled appellant’s objection and allowed Nutter to testify.

        Nutter then stated that all of the thirteen confidential informants with whom Nutter

worked said appellant was associated with illicit drug operations and markets. Further, Nutter

listed several co-defendants with whom appellant was engaged in buying and selling drugs.

Moreover, Nutter stated that appellant was aware of the fact that these individuals were involved

in an illicit drug operation. Nutter also described the drug transactions leading to appellant’s

arrest for the instant convictions. He stated that appellant was selling drugs out of his parents’

home and that several co-defendants were present when these drug transactions occurred. Nutter

also noted that in his investigation, he determined that appellant was purchasing “a half a kilo [of

cocaine] every one to two weeks,” starting “in the early part of 2008” and continuing until

appellant’s arrest on the instant charges. Finally, Nutter testified that based on his “interviews

with informants and co-defendants,” he determined that appellant was involved with “well over

four hundred drug deals [ranging in value] from twenty dollars to twelve hundred dollars.”

        At the conclusion of the hearing, the trial court sentenced appellant to consecutive

twenty-five year periods of incarceration for each of the three convictions, with a total of

sixty-five years suspended; thus imposing ten years active incarceration. 1 In support of its

sentence, the trial court stated,

                I am impressed by the number of deals and the drug activity that
                seemed to be ongoing out of your parents’ house and that’s
                troubling.


        1
          The sentence imposed, although above the guideline range, was within the permissible
range set by statute. See Code § 18.2-248(C) (setting permissible time of incarceration for
distribution of cocaine at “not less than five nor more than forty years”).
                                                 -3-
                           *       *        *    *       *       *       *

               It’s above the guidelines because of the extent of the drug
               distribution that I’ve heard about and what the legislature’s said an
               appropriate punishment for these offenses [is].

       In a motion to stay the execution of appellant’s sentence, appellant argued the trial court

erred when it allowed Nutter to testify about “inadmissible, unreliable and uncorroborated

allegations, supposition and hearsay statements regarding the conspiracy charge, a matter that

was not before [the court].” The trial court denied appellant’s motion, noting, “[Code §]

19.2-299(C) allows information of any known association of the defendant with illicit drug

operations or markets on a felony drug offense. Hearsay evidence is permitted in sentencing

hearings . . . .” This appeal followed. 2

                                            II. ANALYSIS

       Appellant contends the Commonwealth deprived him of his due process rights by

dishonoring the parties’ “plea agreement” and eliciting testimony regarding the nolle prosequied

conspiracy charges, which resulted in an increased sentence.

       Pursuant to Rule 3A:8(c)(1):

                       The attorney for the Commonwealth and the attorney for
               the defendant . . . may engage in discussions with a view toward
               reaching an agreement that, upon entry by the defendant of a plea
               of guilty, or a plea of nolo contendere, to a charged offense, or to a
               lesser or related offense, the attorney for the Commonwealth will
               do any of the following:

               (A)     Move for nolle prosequi or dismissal of other charges;



       2
         This Court denied appellant’s petition for appeal on the issue of whether Nutter’s
hearsay testimony contained “an indicia of reliability,” finding appellant failed to make a
contemporaneous objection in the trial court pursuant to Rule 5A:18. Accordingly, we must
accept the trial court’s determination that the evidence bore some indicia of reliability. See
Rule 5A:12(c) (“The provisions of Rule 5A:18 shall apply to limit those assignments of error
which this Court will rule upon on appeal.”).

                                                -4-
                 (B)    Make a recommendation, or agree not to oppose the
                 defendant’s request, for a particular sentence, with the
                 understanding that such recommendation or request shall not be
                 binding on the court;

                 (C)     Agree that a specific sentence is the appropriate disposition
                 of the case.

(Emphasis added). 3

          Despite appellant’s contention that the parties had a “plea agreement,” Rule 3A:8(c)(2)

states,

                         If a plea agreement has been reached by the parties, it shall,
                 in every felony case, be reduced to writing, signed by the attorney
                 for the Commonwealth, the defendant, and, in every case, his
                 attorney, if any, and presented to the court. The court shall require
                 the disclosure of the agreement in open court or, upon a showing
                 of good cause, in camera, at the time the plea is offered.

(Emphasis added). Appellant concedes that the agreement with the Commonwealth was neither

reduced to writing nor presented to the trial court. Although the Commonwealth admitted at trial


          3
          This provision of the Rules distinguishes between a plea agreement, or what is
sometimes referred to as a “charge agreement,” and a plea and recommendation, or what may be
referred to as a “sentencing agreement.” Rule 3A:8(c)(2) provides, in pertinent part,

                 If the agreement is of the type specified in subdivision (c) (1) (A)
                 or (C), the court may accept or reject the agreement, or may defer
                 its decision as to the acceptance or rejection until there has been an
                 opportunity to consider a presentence report. If the agreement is of
                 the type specified in subdivision (c) (1) (B), the court shall advise
                 the defendant that, if the court does not accept the recommendation
                 or request, the defendant nevertheless has no right to withdraw his
                 plea, unless the Commonwealth fails to perform its part of the
                 agreement.

Thus, under Rule 3A:8(c)(1)(B), the parties provide only a recommendation to the court. If the
Commonwealth complies with the agreement by making the recommendation, the court’s
non-acceptance of the recommendation is not a rejection of the plea agreement. Holler v.
Commonwealth, 220 Va. 961, 968, 265 S.E.2d 715, 719 (1980). In contrast, agreements reached
pursuant to Rule 3A:8(c)(1)(A) and (C) constitute “dispositional plea agreements” or “charge
agreements,” by which terms the court must accept or the defendant is entitled to withdraw his
guilty plea. Smith v. Commonwealth, 17 Va. App. 162, 164, 435 S.E.2d 586, 588 (1993).

                                                 -5-
and on appeal that it nolle prosequied the conspiracy charges in exchange for appellant’s guilty

pleas to the distribution charges, the trial court never became signatory to and therefore bound by

any agreement reached by appellant and the Commonwealth. See Commonwealth v. Sandy, 257

Va. 87, 91, 509 S.E.2d 492, 494 (1999) (finding “[Rule 3A:8] requires that the circuit court

approve the plea agreement”).

          Further, assuming the parties had an agreement, appellant has presented no evidence of

the agreement’s terms. “[I]t is axiomatic that an appellate court’s review of the case is limited to

the record on appeal.” Wolfe v. Commonwealth, 6 Va. App. 640, 643, 371 S.E.2d 314, 316

(1988) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986)).

“The burden is upon the appellant to provide us with a record which substantiates the claim of

error.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20

(1991).

          Appellant contends the Commonwealth violated the agreement by presenting evidence

relating to the nolle prosequied charges; however, there is no evidence that the Commonwealth

agreed not to elicit testimony regarding appellant’s drug associations at sentencing. In fact, we

have no record of the agreement at all. Thus, appellant has not presented us with a record upon

which we can determine that the Commonwealth was under an obligation, by virtue of an

agreement with appellant, to limit its evidence at sentencing. Accordingly, we have no evidence

upon which to find the Commonwealth “dishonor[ed] their plea agreement.”

          Moreover, aside from any putative agreement of the parties, “[d]ecisions on the

admissibility of evidence lie within the trial court’s sound discretion and will not be disturbed on

appeal absent an abuse of discretion.” Mitchell v. Commonwealth, 25 Va. App. 81, 84, 486

S.E.2d 551, 552 (1997).

                 A sentencing judge may consider hearsay contained in a probation
                 report. He may rely upon a defendant’s criminal record. He may
                                                -6-
               consider prior juvenile adjudications, dismissed juvenile charges
               and pending charges, charges for which the accused has been
               indicted, but not convicted, offenses for which the defendant has
               been convicted but not sentenced, convictions on appeal, and
               evidence of unadjudicated criminal activity . . . .

Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 471 (1994) (en banc)

(emphasis added) (citations omitted); accord Wolfe v. Commonwealth, 37 Va. App. 136, 142,

554 S.E.2d 695, 698 (2001). Because a “sentencing hearing before a judge is not a criminal

trial,” Smith v. Commonwealth, 52 Va. App. 26, 30, 660 S.E.2d 691, 693 (2008), the only real

limitation on evidence is that the “information bear some indicia of reliability.” Moses v.

Commonwealth, 27 Va. App. 293, 302, 498 S.E.2d 451, 456 (1998). 4

       Code § 19.2-299(C) states, “As part of any presentence investigation[,] . . . when the

offense for which the defendant was convicted was a felony drug offense, . . . the presentence

report shall include any known association of the defendant with illicit drug operations or

markets.” This Court has previously upheld Code § 19.2-299 in the face of a due process

challenge. See Moses, 27 Va. App. at 297, 498 S.E.2d at 453. Upholding the statute in Moses,

the Court found that “‘most of the information now relied upon by judges to guide them in the

intelligent imposition of sentences would be unavailable if information were restricted to that

given in open court by witnesses subject to cross-examination.’” Id. at 301, 498 S.E.2d at 455

(quoting Williams v. New York, 337 U.S. 241, 250 (1949)). 5 So long as the information bears



       4
          As noted above, appellant did not object to the reliability of the information; therefore,
that issue is not before us on appeal. See Rule 5A:18; Rule 5A:12.
       5
         Although appellant argued at trial that he was denied his right to confront his accusers,
the question presented to this Court on appeal was only whether appellant’s due process rights
were violated. In any event, the Sixth Amendment issue is clearly resolved by Moses. In a
challenge to Code § 19.2-299, the defendant in Moses contended, “the [trial] court should have
required the probation department to reveal the identity of its unnamed sources.” Moses, 27
Va. App. at 297, 498 S.E.2d at 453. This Court held, “application of the Confrontation Clause to
the post-trial sentencing proceedings is inappropriate.” Id. at 301, 498 S.E.2d at 455. Further,
                                                -7-
“some indicia of reliability,” id. at 302, 498 S.E.2d at 456, the trial court may consider hearsay,

including “evidence of unadjudicated criminal activity,” Thomas, 18 Va. App. at 659, 446 S.E.2d

at 471.

          Accordingly, the trial court did not err in admitting Nutter’s testimony regarding

appellant’s drug “associations,” as that evidence is permissible under Code § 19.2-299(C).

Further, appellant has presented no evidence of a plea agreement or any agreement with the

Commonwealth that would limit the Commonwealth’s evidence at sentencing. Thus, we find no

merit in appellant’s contention that his due process rights were violated through admission of

Nutter’s testimony.

                                         III. CONCLUSION

          For these reasons, we find no error, and we affirm appellant’s sentence.

                                                                                           Affirmed.




the defendant “was still free to cross-examine . . . the police officers who gathered statements
from the unnamed sources.” Id. at 301 n.3, 498 S.E.2d at 455 n.3.
                                                -8-
