                               COURT OF APPEALS OF VIRGINIA


Present: Judges Powell, Alston and Senior Judge Annunziata
Argued by teleconference


HECTOR LUIS PAGAN
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2420-09-4                                    JUDGE CLEO E. POWELL
                                                                  JANUARY 11, 2011
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                              William T. Newman, Jr., Judge

                 Mark S. Thrash for appellant.

                 Richard B. Smith, Special Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Hector Louis Pagan (“Pagan”) pleaded guilty to rape, in violation of Code § 18.2-61, and

to two counts of abduction with intent to defile, in violation of Code § 18.2-48. Pagan received

three life sentences for these crimes. On appeal, Pagan argues that the sentencing court abused

its discretion in considering evidence of unadjudicated crimes because that evidence lacked the

requisite indicia of reliability. Pagan contends that the evidence of sexual molestation, to which

a police detective testified, was double hearsay and, therefore, unreliable. For the reasons that

follow, we disagree and affirm Pagan’s convictions.

                                        I. BACKGROUND

       On March 5, 2009, Pagan pleaded guilty pursuant to an agreement to one count of rape

and two counts of abduction with intent to defile. The agreement indicated that Pagan was

pleading guilty to, but not admitting, one of the two counts of abduction with intent to defile. In


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
exchange for his guilty pleas, the Commonwealth agreed to nolle prosequi three additional

charges but made no agreement as to his sentences. The judge found the defendant guilty and

continued the case for sentencing.

       At Pagan’s sentencing hearing, Arlington County Detective James Stone testified that on

the night of January 11, 2007, a woman was approached by a man as she walked home. The

attacker put a knife to her face, pulled her hat over her face, and forced her to a grassy area

where he vaginally raped her. The attacker also took the victim’s cell phone. The victim was

taken to a hospital for a PERK.

       Detective Stone also described a similar assault that took place the night of February 2,

2007, about two blocks from the January 11 attack. That victim fought back as she was forced

into nearby woods. The man used his knife to make “pretty bad lacerations” on the victim’s

face. During the attack, the victim knocked the perpetrator’s eyeglasses off. The attack ended

when a passerby responded to the victim’s cries for help.

       The police later found a pair of eyeglasses a few feet from the spot of the February 2

attack. DNA tests revealed Pagan’s DNA on these eyeglasses. Based on this hit, Detective

Stone pulled up Pagan’s DMV records to find his address. Pagan’s most recent DMV

photograph showed him wearing eyeglasses that “appeared to be identical to the eyeglasses that

were recovered at the February 2nd crime scene.”

       When questioned, Pagan denied involvement in either attack. A buccal swab obtained

from Pagan, however, revealed a match to the DNA on the eyeglasses found at the second crime

scene and to the DNA in the PERK taken from the first victim. 1




       1
         The DNA in the PERK was a “mixed” sample, having DNA from the victim, her
husband, and Pagan, which is why forensic testing did not initially reveal Pagan as the
perpetrator.
                                             -2-
       Per routine police procedures, Detective Stone sent descriptions of the two attacks to

other jurisdictions and informed those jurisdictions that a suspect had been arrested. At Pagan’s

sentencing hearing, Detective Stone testified that he received a phone call from a Fairfax County

detective who was investigating an alleged abduction and molestation that occurred inside a van

similar to the one Pagan drove for his employment. At that point, Pagan’s counsel objected to

any evidence of other crimes being admitted because “there has been no cross-examination, there

has been no witness . . . regarding . . . what is about to be testified to.” After defense counsel

acknowledged that he was aware of the alleged other crime, but had not “had a chance to

investigate the . . . case,” the judge allowed the testimony.

       During argument as to Pagan’s sentences, defense counsel admitted the seriousness of the

charges and that the discretionary sentencing guidelines suggested a term of seventeen to

thirty-seven years. He also asked the judge to base Pagan’s sentences only on the three charges

to which Pagan pled guilty. The Commonwealth argued that the violent nature of Pagan’s

crimes and the fact that he showed no remorse for the second attack necessitated life sentences

for Pagan’s crimes. The prosecutor pointed out, without contradiction, that the pre-sentence

report reflected that the defendant had had a “25 year career in crime,” including at least four

burglaries, several nolle prosequied assault charges, three grand larcenies, and a “conviction for

terroristic threats against his first wife.” The prosecutor also noted that not only had Pagan been

on probation at the time of these attacks, but also that the rape took place only five months after

Pagan had been released from serving six years in prison. The Commonwealth also mentioned

the Fairfax investigation. During allocution, Pagan said that he was sorry for the rape. He

showed no remorse for the second attack.

       Before rendering Pagan’s sentences, the judge noted Pagan’s long history of committing

crimes and referred to Pagan as a “career criminal.” The circuit court stated:

                                                 -3-
                        I’m also struck by the fact that you really seem to have a
                hard time accepting all of what you have done. You say you are
                sorry for what happened to the first victim. But it is clear, there is
                no doubt in my mind, that you were there and you were an active
                participant in what happened to the second victim.

                        The fact that you just dismiss it and say, “I didn’t do it,”
                that to me is saying that you don’t accept responsibility for what
                happened with that person, and that is very troubling, very
                troubling.

The judge did not mention the Fairfax incident. The court then sentenced Pagan to a life

sentence for each of his three convictions, noting “I don’t do this lightly, but I do believe that

there are some cases where a person does not need to be considered for – to get out.”

       Pagan subsequently filed several motions including a motion to reconsider his life

sentences. This motion asserted that the circuit court should not have allowed Detective Stone’s

testimony concerning the molestation of a child in Fairfax County. At the hearing on this

motion, Pagan’s attorney stated, “I realize what your Honor said the last time we were in court.

And that is that that the [Fairfax] evidence was of no moment in your Honor’s decision regarding

sentencing in this matter. And if that’s the case, that’s the case.” Defense counsel, however,

added, “[a]lthough I tend to think that something like that, cannot be I mean evidence regarding a

ten-year-old girl, sexual molestation in the back of the van. I just don’t see how anybody can

ignore that.”

       The circuit court told defense counsel that “I assure you that little bit that I heard and

considered [about the Fairfax incident] had very little to do with anything that I - as I decided

how I was going to sentence this man.”

                I certainly appreciate the - your argument and your position, but as
                I said before, I think that it may in some ways be misplaced.
                Because in my mind, as I listen[ed] to the sentencing hearing,
                certainly - I mean I - I certainly heard that. Make no mistake. I
                heard it. I said okay, that’s something, but I also understand that
                even though it maybe creates an inference, is that it does not mean
                that he is convicted or was guilty of anything at this point, because
                                                 -4-
                he wasn’t convicted of that. It’s just that he is a suspect in the
                case, perhaps, in Fairfax - at best.

                         My decision in the sentencing really had to do with just the
                facts as I understood them from these cases. And I certainly
                appreciate the fact that if I said the second victim does - I just felt
                personally as I listened to everything, as I observed the defendant,
                I listened to him. Is that - and as I had said, I meant in general he
                just took no responsibility. He was very cavalier in the Court’s
                opinion as to what had happened.

                         And that was what I was concerned about and that’s how -
                when I formulated my sentence and for these charges which is
                what I relied on. Not the - the - perhaps any allegation of a case in
                Fairfax or whatever. I guess - certainly I heard what was said, but
                it was not - that was not - that was not the determining factor of
                what the severity of my sentence. I just really - just listened to
                what he said and the way he said it and I assessed him and I made
                a decision. I really did not believe that he should be walking the
                streets.

                        I appreciate your concern and like I said, I do understand
                that this is a very severe sentence that I have imposed on him. I
                mean, I just, I think that if you really feel that strongly that you
                would like to make your argument for the record, I will give you a
                continuance . . . . I - I don’t believe that it will - it’s going to
                change my opinion, in any way. But I mean I do recognize and I
                feel that given the severity of it you are entitled to that.

The court continued,

                I’m just saying that [the Fairfax evidence] did not affect me one
                way or the other in terms of my - my reasoning as to how I felt
                about these particular ones that he plead guilty to and the Alford
                plea case. These charges . . . that’s what concerned me.

The circuit court questioned Pagan’s counsel: “My point is given everything that you are saying,

what difference does it make if that’s not a reason I made my decision?” Finally, the circuit

court stated:

                I think [Pagan’s argument is] misplaced here because [the Fairfax
                evidence] did not enter into my mind almost at all as to how I
                wanted to rule in this case. Accordingly, because I do believe that
                the sentence that was imposed did fit the facts, and what had
                happen here - I guess I’m going to have to say I do deny your

                                                 -5-
               motion. Because as I said, [the Fairfax evidence] did not – it’s not
               going to matter one way or the other.

Accordingly, the circuit court denied Pagan’s motion to reconsider. This appeal follows.

                                           II. ANALYSIS

       Assuming without deciding that the hearsay evidence regarding a molestation

investigation in Fairfax County was inadmissible at Pagan’s sentencing hearing, its admission

was harmless error because the trial court specifically stated that it did not rely upon that

evidence in reaching its sentencing decision. Specifically, Pagan contends that the evidence

regarding the alleged molestation was inadmissible as it was unreliable. As this objection does

not allege a constitutional error, we apply the test for nonconstitutional harmless error.

               We adhere to the United States Supreme Court’s test for
               nonconstitutional harmless error in criminal cases: “[I]f one cannot
               say, with fair assurance . . . that the judgment was not substantially
               swayed by the error, it is impossible to conclude that substantial
               rights were not affected . . . . If so, or if one is left in grave doubt,
               the conviction cannot stand.”

Billips v. Commonwealth, 274 Va. 805, 810, 652 S.E.2d 99, 102 (2007) (quoting Clay v.

Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001)). Here, the circuit court

repeatedly stated that it did not base Pagan’s three life sentences on the alleged molestation but

on Pagan’s history as a “career criminal” and on his lack of remorse. Thus, even if the testimony

was inadmissible, such error was harmless. 2


       2
          On appeal, the Commonwealth initially argues that the sentencing court lacked
jurisdiction to consider Pagan’s motion to reconsider because the sentencing court failed to
modify, vacate, or suspend the sentencing order within twenty-one days of entry of the final
order and, therefore, only the arguments made at the sentencing hearing are properly before this
Court. The Commonwealth further asserts that the order staying Pagan’s transfer to the
Department of Corrections is only applicable to Code § 19.2-303’s exception to Rule 1:1 and that
Code § 19.2-303 only provides a vehicle to modify a sentence after twenty-one days have
elapsed when the defendant presents “circumstances in mitigation of the offense,” which the
Commonwealth contends that Pagan did not do. At oral argument, the Commonwealth argued
further that because Pagan’s attempt to modify his sentences was grounded on an alleged legal

                                                 -6-
                                       III. CONCLUSION

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.




error by the circuit court, not on any “circumstances in mitigation of the offense” that it was not
cognizable under Code § 19.2-303.
         The Commonwealth is incorrect that the court lacked jurisdiction. Clearly, as we held in
Wilson v. Commonwealth, 54 Va. App. 631, 681 S.E.2d 74 (2009), Code § 19.2-303 gives the
trial court jurisdiction over “‘all felony convictions provided the defendant has not been sent to
the Department of Corrections.’” Id. at 640, 681 S.E.2d at 79 (quoting Esparza v.
Commonwealth, 29 Va. App. 600, 605, 513 S.E.2d 885, 887 (1999)). To the extent that the
Commonwealth challenges the merits of the motion to reconsider on the basis that a purely legal
argument cannot constitute “circumstances in mitigation of the offense,” we need not reach this
argument because the trial court denied the motion to reconsider without reaching its merits,
reiterating that the evidence that Pagan wanted to present had no bearing on the sentences that it
imposed.

                                               -7-
