                   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).


                                 - 2 -
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

                               - 3 -
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


                                  - 4 -
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."

                               - 5 -
(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.

                               - 6 -
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).


                               - 7 -
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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