COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys and Friedman

FELIX MARTINEZ PACHECO

MEMORANDUM OPINION* BY

v. Record No. 1044-21-3 CHIEF JUDGE MARLA GRAFF DECKER

JUNE 21, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

Bruce D. Albertson, Judge

(John M. Bodenhamer; Big Law Valley, PLLC, on brief), for 

appellant. Appellant submitting on brief. 

(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior 

Assistant Attorney General; on brief), for appellee. Appellee 

submitting on brief.

Felix Martinez Pacheco appeals the revocation of his previously suspended sentence. He 

argues that the trial court erred by failing to consider a significant relevant factor and by 

sentencing him to serve six years of active time. The active sentence imposed was within the 

statutory maximum and was not an abuse of discretion. Therefore, we affirm the decision of the 

trial court. 

I. BACKGROUND1

The instant appeal involves the appellant’s third revocation proceeding. In 2009, the 

appellant was convicted of taking indecent liberties with a child, failing to register as a sex 

offender, and making an obscene display in a public place. The trial court imposed a total of

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 On appeal of the revocation of a suspended sentence, we review the evidence in the 

light most favorable to the Commonwealth, as the party who prevailed below. Jacobs v. 

Commonwealth, 61 Va. App. 529, 535 (2013).

UNPUBLISHED
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fifteen years and twelve months for those offenses and suspended eight years and twelve months. 

Later that same year, the appellant was convicted of assaulting a law enforcement officer. He 

received a sentence of five years, with three years and five months suspended. In all, the 

appellant had eight years and seven months of active time to serve in prison with the remaining 

time suspended. 

The first revocation proceeding occurred in June 2019. At that time, the trial court found 

that the appellant violated his probation due to a new charge of assault on a law enforcement 

officer while he was incarcerated. The violation report also reflected that the appellant had 

committed twenty-two disciplinary infractions while he was incarcerated. Those infractions 

included “lewd or obscene acts directed toward or in the presence of another, . . . indecent 

exposure, attempting to commit/engaging in sexual acts with others by consent, . . . and sexual 

assault upon or making forcible sexual advances toward an offender.” The court revoked the 

previously suspended sentence and resuspended a portion of it, leaving him with twelve months 

to serve. The appellant was released from incarceration in September 2019.

Two weeks after his release, the appellant’s probation officer filed a violation report for 

his failure to contact the probation office, triggering a second revocation proceeding. The trial

court found that the appellant violated his probation. The court revoked the suspended sentence 

and resuspended part of it, leaving him with two years to serve. The appellant was released in

June 2021.

Three days later, the appellant’s probation officer filed a report alleging a violation 

because the appellant failed to contact him. At the resulting third revocation hearing in August 

2021, the appellant did not contest that he committed the charged violation. The only issue was 

his sentence. 
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The sentencing guidelines recommended that the appellant serve one to four years. The 

appellant asked for leniency based on the technical nature of his violation. He testified that he 

registered for the sex offender registry on the day of his release and he did not believe that he 

was on probation at the time. His attorney asked him several times if he would comply with the 

conditions under which he was released on probation, but the appellant did not respond. The 

Commonwealth requested that the court not resuspend any of the remaining time, arguing that 

the appellant’s history and statements in court reflected that he was not “amenable” to supervised 

probation. The Commonwealth introduced evidence of the prior probation violations as well as 

the appellant’s criminal history.

The trial court found that the appellant violated his supervised probation. It revoked his 

suspended sentence and resuspended three years and five months, leaving six years for him to 

serve. In doing so, the court found that the appellant had “a history of dangerous sexual behavior 

and dangerous behavior to law enforcement.” The court also commented that the appellant had 

“basically stated he will not comply with probation.” It concluded that no conditions could 

“ensure the safety of the people of the Commonwealth.”

II. ANALYSIS

The appellant challenges the sentence imposed upon the revocation of the suspension of 

his sentence.

2

 He claims that the trial court “failed to take into account the incredibly short time 

[he] was on probation before proceeding on a violation.” The appellant also contends that the 

court failed to consider the fact that he had registered with the sex offender registry promptly 

2 He does not challenge the underlying decision to revoke his suspended sentence.
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upon his release.3 He argues that the six-year sentence of active time imposed was an abuse of 

discretion.

After imposing a sentence, a trial “court may suspend imposition of sentence or suspend 

the sentence in whole or part and in addition may place the defendant on probation under such 

conditions as the court shall determine.” Code § 19.2-303. If a trial court subsequently finds 

good cause to believe that a defendant violated the terms of his suspended sentence, “then the 

court may revoke the suspension and impose” a new sentence. Code § 19.2-306(C). 

“The statutes dealing with probation and suspension are remedial and intended to give the 

trial court valuable tools to help rehabilitate an offender . . . .” Howell v. Commonwealth, 274 

Va. 737, 740 (2007). “When coupled with a suspended sentence, probation represents ‘an act of 

grace on the part of the Commonwealth to one who has been convicted and sentenced to a term 

of confinement.’” Price v. Commonwealth, 51 Va. App. 443, 448 (2008) (quoting Pierce v. 

Commonwealth, 48 Va. App. 660, 667 (2006)). 

A trial court’s ruling in a revocation proceeding “will not be reversed [on appeal absent] 

a clear showing of abuse of discretion.” Jacobs v. Commonwealth, 61 Va. App. 529, 535 (2013) 

(quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “[T]he phrase ‘abuse of 

discretion’ means that the [trial] court ‘has a range of choice, and that its decision will not be 

disturbed as long as it stays within that range and is not influenced by any mistake of law.’” 

Ellis v. Commonwealth, 68 Va. App. 706, 711 (2018) (first alteration in original) (quoting 

3 Neither party mentions Code § 19.2-306.1, which took effect July 1, 2021. See 2021

Va. Acts Spec. Sess. I ch. 538. Similarly, the appellant did not argue below that this code section

applied to his case. Therefore, we do not address whether the statute is retroactive. See Rule 

5A:18 (providing that generally an objection must be made below for a ruling to constitute “a 

basis for reversal”); Rule 5A:20(e) (requiring an appellant to state clearly the “argument . . . 

relating to each assignment of error”). See generally Green v. Commonwealth, __ Va. App. __, 

__ (June 14, 2022) (holding that Code § 19.2-306.1 did not apply because both the crime 

occurred and the prosecution began before the statute’s effective date).
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Sauder v. Ferguson, 289 Va. 449, 459 (2015)). “Only when reasonable jurists could not differ 

can we say an abuse of discretion has occurred.” Minh Duy Du v. Commonwealth, 292 Va. 555, 

564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). “This bell-shaped

curve of reasonability governing . . . appellate review rests on the venerable belief that the judge 

closest to the contest is the judge best able to discern where the equities lie.” Id. (quoting

Sauder, 289 Va. at 459).

Here, the appellant argues that in setting his sentence, the court failed to consider that the 

time in which he failed to report to his probation officer was short and that he promptly 

registered with the sex offender registry. In determining how much of the appellant’s sentence to 

resuspend, the trial court had discretion to weigh the mitigating factors that he presented. See 

Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). “The exercise of judicial discretion 

‘“implies conscientious judgment, not arbitrary action.”’” Rhodes v. Commonwealth, 45 

Va. App. 645, 650 (2005) (quoting Slayton v. Commonwealth, 185 Va. 357, 367 (1946)). The 

appellate court presumes that a trial court knows the law and applies it correctly. Groves v. 

Commonwealth, 50 Va. App. 57, 61-62 (2007). Based on the court’s ruling, it is fair to infer that 

the court considered the mitigating evidence as argued by the appellant at the revocation hearing

and simply weighed it as it saw fit. See Henderson v. Commonwealth, 285 Va. 318, 326 (2013) 

(inferring a trial court’s finding from its ruling). Against the mitigating factors raised by the 

appellant, the court weighed his history of “dangerous behavior” and his testimony 

demonstrating a reluctance to comply with probation. Although we recognize that the sentence 

exceeded that recommended by the probation violation guidelines, those guidelines “are merely a 

‘tool’ to assist the judge in fixing an appropriate punishment.” See Belcher v. Commonwealth,

17 Va. App. 44, 45 (1993) (quoting Hudson v. Commonwealth, 10 Va. App. 158, 161 (1990)). A 
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trial court is not bound by them and must review and assess the evidence in each individual case, 

as the court did here. See id. 

The appellant also contends that the trial court abused its discretion by suspending only 

three years and five months of his sentence, leaving him with six years to serve. This argument 

is directly contradicted by established law. See Minh Duy Du, 292 Va. at 564 (explaining that a 

trial court acts within its discretion when it imposes a sentence within the statutory range). The 

trial court was permitted—but not required—to resuspend all or part of the sentence. See

Alsberry v. Commonwealth, 39 Va. App. 314, 320 (2002). The court knew that the appellant had 

a history of violations, “dangerous sexual behavior[,] and dangerous behavior to law 

enforcement.” It also found, based on the appellant’s testimony, that he would “not comply with 

probation” and that “no set of conditions” could ensure the public’s safety. Our review of the 

record supports the conclusion that the trial court properly exercised its discretion. See Price, 51 

Va. App. at 448-49 (holding that after the defendant willfully violated the conditions of his 

probation by using cocaine and failing to report to his probation officer, the trial court acted 

within its discretion by imposing an active period of incarceration); Rhodes, 45 Va. App. at 

650-51 (affirming the revocation of a sentence suspension and imposition of a portion of the 

remaining time after the defendant violated the terms of his suspended sentence by withdrawing 

from a detention center program). 

III. CONCLUSION

The trial court did not abuse its discretion by resuspending three years and five months of 

the appellant’s sentence and ordering that he serve six years. Consequently, we affirm the trial 

court’s judgment. 

Affirmed.