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                 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
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
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
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,
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.
    Accordingly, we uphold the ruling of the trial court and
affirm the conviction.
         Affirmed. 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
         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
reverse the judgment and remand to the trial judge for  reconsideration of the sentence and Montalvo's eligibility for
first offender status as provided by Code   18.2-251.                                        

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