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. 
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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.