COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

LUCIANO MONTALVO 

 OPINION BY 

v. Record No. 1117-97-2 JUDGE SAM W. COLEMAN III 

 APRIL 7, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY 

James A. Luke, Judge 

 Jacqueline Waymack (Butterworth & Waymack, on 

brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Under Code § 18.2-251, commonly referred to as the first 

offender drug statute, when a defendant who has not been 

previously convicted of a drug-related offense pleads guilty to a 

charge of illegal drug possession, the judge may, with the 

defendant's consent, defer disposition of the charge, place the 

defendant on probation upon the condition that he or she submit 

to drug treatment and screening, and, upon the defendant's 

satisfactory completion of probation, dismiss the charge. In 

this appeal, Luciano Montalvo contends the trial judge abused his 

discretion when he refused to invoke the first offender drug 

statute after Montalvo pled guilty to possession of cocaine. We 

find that the trial judge did not abuse his discretion; 

therefore, we affirm the conviction. 

 On appeal, we view the evidence in the light most favorable 
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to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the record 

established that Montalvo was arrested and charged with 

possessing cocaine after an officer recovered the cocaine while 

investigating a domestic complaint at Montalvo's residence. At 

trial, after pleading guilty to possession of cocaine, Montalvo 

requested that the judge defer finding him guilty and grant him 

first offender status under Code § 18.2-251. In support of his 

motion, Montalvo tendered a copy of his criminal record, which 

verified that he had no prior drug-related convictions. The 

arresting officer testified that Montalvo admitted "that he had a 

bad drug problem and that he was going to the VA hospital in an 

attempt to try to help himself out." The trial judge ordered a 

presentence report and deferred sentencing pending his review of 

the report. 

 The presentence report showed that Montalvo had two prior 

assault and battery convictions and numerous driving infractions, 

including three for reckless driving. The report also revealed 

charged offenses in New York for robbery with physical injury and 

assault with intent to cause serious injury, the dispositions of 

which were "Unknown." The probation officer's report stated that 

it would be difficult to supervise Montalvo on probation because 

he was "living at different places and not living at home." It 

showed that Montalvo was 100% disabled because he suffered from 
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post-traumatic stress syndrome, depression, and HIV infection. 

The probation officer also noted in his report that Montalvo's 

drug use was "apparent." The probation officer further reported 

that Montalvo was reluctant to sign the medical release forms 

that were required of him in order to obtain his medical records 

from the VA hospital. Because of Montalvo's delay and reluctance 

to sign the release, the officer had not obtained the records at 

the time of the sentencing hearing. At the hearing, when 

Montalvo was asked about his delay in signing the release, he 

stated that he was "told it doesn't make any sense to sign it" 

and that he eventually signed the release after he checked with 

the VA hospital and was told to sign the forms. 

 The trial judge denied Montalvo's request to defer his 

sentence and to grant him first offender status. The judge 

stated: 

 The point is [that] the Court's confronted 

with this man being difficult when he is 

being given an opportunity to have 

first-offender status. That's inexcusable so 

far as the Court is concerned. . . . It 

wouldn't have been the VA that gave the 

difficulty, it was the defendant. The 

Court's not inclined to give first-offender 

status under these circumstances. 

The trial judge found Montalvo guilty, sentenced him to five 

years in the penitentiary, and suspended that sentence for a 

period of ten years. 

 Montalvo asserts that the evidence does not support the 

judge's finding that he was uncooperative in providing the 
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medical release. Accordingly, Montalvo argues the judge abused 

his discretion by denying him first offender status because the 

trial judge based his decision upon a finding the record does not 

support. 

 A trial court has broad discretion under Code § 19.2-203 in 

deciding whether to suspend all or any portion of a penitentiary 

sentence and to grant probation. See Hamilton v. Commonwealth, 

217 Va. 325, 327, 228 S.E.2d 555, 556 (1976); Slayton v. 

Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 483 (1946); Bell 

v. Commonwealth, 18 Va. App. 146, 148, 442 S.E.2d 427, 428 

(1994). Similarly, the court has broad discretion under Code 

§ 18.2-251 in deciding whether to defer a finding of guilt and to 

grant first offender status to a first-time drug offender. We 

will reverse a trial judge's decision to deny first offender 

status only where the trial judge has made an arbitrary decision 

and abused his discretion by failing to exercise a conscientious 

judgment in rendering the decision. See id.

 Here, the evidence supports the trial court's finding that 

Montalvo was unwilling to cooperate with the probation officer by 

being reluctant to sign the medical release forms. Montalvo 

stated that he had been told "it doesn't make any sense to sign 

it [the release]." Although Montalvo explained why he delayed 

but eventually signed the medical release, the trial judge, who 

had the opportunity to hear Montalvo and to observe his demeanor, 

did not err in finding that he was uncooperative. Furthermore, 
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from the information contained in the presentence report, the 

trial judge did not abuse his discretion in finding that Montalvo 

would not be a good candidate for first offender status. 

 A first-time drug offender is not entitled as a matter of 

right to receive a suspended sentence, probation, or treatment 

under Code § 18.2-251. As alternatives to confinement and 

incarceration, the statute's benefits are reserved for those 

first-time drug offenders who demonstrate a likelihood of being 

able to adhere to the terms and conditions of probation. Here, 

Montalvo had pled guilty to possession of cocaine and, although 

it was his first drug offense, he admitted he had used drugs on 

other occasions and had a drug problem for which he was being 

treated at the VA hospital. Moreover, the fact that Montalvo was 

a drug user was apparent to the probation officer. Although a 

first-time offender who has a history of drug use may still be 

considered for first offender status, when considered with the 

fact that Montalvo did not have a regular address, had a prior 

criminal record of two assault convictions and numerous traffic 

related offenses, was suffering from depression and 

post-traumatic stress syndrome and that he had demonstrated an 

uncooperative attitude by being reluctant to provide the medical 

release forms that would have enabled the court to obtain 

information about his drug use and treatment, we cannot say the 

trial judge abused his discretion by denying Montalvo first 

offender status under Code § 18.2-251. 
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 Accordingly, we uphold the ruling of the trial court and 

affirm the conviction. 

 Affirmed.
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Benton, J., dissenting. 

 Stating that Montalvo "made it very difficult" for the 

probation officer to obtain Montalvo's medical records from the 

Veterans' Administration, the trial judge refused to grant 

Montalvo first offender status under Code § 18.2-251. The record 

does not support that finding. Therefore, I would hold that the 

trial judge abused his discretion. 

 At trial, both the Commonwealth's attorney and Montalvo 

represented to the judge that Montalvo was eligible for first 

offender status pursuant to Code § 18.2-251 and that his criminal 

record was not disqualifying. At the sentencing hearing, the 

following exchange occurred: 

 THE COURT: This case was tried in December. 

 To date the probation officer tells me he 

has not been able to get the necessary 

signatures from the defendant to get medical 

records that are required in order to go 

forward with first-offender status. Still 

has not had it since December. We've 

continued it once before. 

 [DEFENSE COUNSEL]: Your Honor, I think [the 

probation officer] has gotten the signatures 

at this point. 

 THE COURT: Told me a few minutes ago he did 

not have. 

 [PROBATION OFFICER]: I got the signature on 

the first release eventually, Judge, and then 

the second release that was sent to me -- 

 THE COURT: The point is, the Court's 

confronted with this man being difficult when 

he is being given an opportunity to have 

first-offender status. That's inexcusable so 

far as the Court is concerned. 

 [DEFENSE COUNSEL]: Yes, sir. I believe at 
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first he did have a problem with medical 

records, and after talking to him he did give 

a release to [the probation officer]. That's 

my understanding. It's difficult to get 

records from the Veteran's Administration. 

 This record clearly establishes that, based on an 

off-the-record conversation with the probation officer, the trial 

judge concluded that Montalvo had not signed the second release 

that the Veterans' Administration required. No evidence proved 

that Montalvo or his counsel were present when that 

off-the-record discussion occurred. Montalvo's counsel made an 

unrefuted avowal on the record that Montalvo had signed the 

second release and had given it to the probation officer. 

Indeed, when the probation officer began to explain the events 

after he received the second release, the trial judge 

spontaneously ruled that Montalvo was "being difficult" before 

the probation officer could complete his explanation. This is 

the sole basis upon which the trial judge refused to consider 

Montalvo for first offender status under Code § 18.2-251. 

 Although the majority concludes, based on its own 

examination of Montalvo's history, that Montalvo was not a "good 

candidate" for first offender status, the trial judge's decision 

was grounded only in the judge's perception that Montalvo was 

uncooperative with the probation officer. We are not at liberty 

to conclude that the trial judge might have discovered some 

reason other than the stated reason. The trial judge's stated 

reason was based on an erroneous assumption. Therefore, I would 
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reverse the judgment and remand to the trial judge for 
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reconsideration of the sentence and Montalvo's eligibility for 

first offender status as provided by Code § 18.2-251.