COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
RICHARD ALBERT PAYNE
MEMORANDUM OPINION * BY
v. Record No. 1759-01-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Charles E. Haden (Stuart A. Saunders;
Stuart A. Saunders, P.C., on briefs), for
appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on briefs), for appellee.
Richard Albert Payne (appellant) was convicted of seventeen
counts of forgery on August 31, 1992 and received twenty-six
years of suspended incarceration. On June 7, 2001, the trial
court revoked the suspended sentences and imposed the entire
twenty-six years. The sole issue on appeal is whether the trial
court abused its discretion by revoking the entirety of
appellant's suspended sentences. For the following reasons, we
reverse and remand for re-sentencing.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The evidence is not disputed. On August 31, 1992,
appellant pled guilty to seventeen counts of forgery. On
December 4, 1992, the Circuit Court of the City of Newport News
sentenced appellant to ten years on one count and one year each
on the other sixteen counts. The trial judge suspended all of
the time imposed on the condition that appellant be of good
behavior for twenty years, complete two years of supervised
probation, complete the Youth Challenge Program, and make
restitution in the amount of $3,796, in $100 monthly payments,
to Central Fidelity Bank. The sentencing orders provided that
the "sentences will run concurrently unless revoked at which
time they will run consecutively." 1
1
We are unable to address the propriety of the sentencing
order which stated that the "sentences will run concurrently
unless revoked at which time they will run consecutively"
because this issue is not properly before us. Appellant did not
file a direct appeal of this issue, and the sentencing orders
are merely voidable, rather than void. Thus, he may not
collaterally attack the sentencing orders at this date. See
Simmers v. Commonwealth, 11 Va. App. 375, 379, 398 S.E.2d 693,
695 (1990) (holding that no collateral attack was allowed where
the trial court, which had jurisdiction over the subject matter
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At a June 7, 2001 revocation hearing, appellant admitted to
entering an Alford plea resulting in a new conviction of grand
larceny. Probation Officer Renee Stewart (Stewart) testified
that appellant was "basically a restitution case" who had been
an excellent probationer and reported as required for seven
years. However, he failed to report on two occasions after
Stewart became his probation officer on July 25, 2000 and had
not paid all of the restitution he owed. Stewart acknowledged
that appellant was required to pay restitution to two other
jurisdictions and stated that she believed he had paid those
restitutions. Neither the two failures to report nor the
continuing restitution requirement prompted a revocation hearing
until the new conviction occurred.
Appellant testified that his new conviction arose from an
incident at a Wal-Mart. Appellant claimed that he had not
stolen the property, but entered an Alford plea on the advice of
his lawyer who told him that "I was a convicted felon. It was
going to be my word against somebody else's, and I was going to
lose. I told him I couldn't plead guilty because I didn't do
and the parties, rendered judgment and the defendant failed to
attack it in the trial court within twenty-one days or timely
petition for an appeal).
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it, and he offered that to me." Appellant was convicted of
grand larceny and was sentenced on that charge to ten years,
with nine years and two months suspended conditioned on his good
behavior for twenty years and supervised probation for two
years. The sentencing guidelines for the underlying larceny
called "for a midpoint of one year and five months, with a high
point of two years and two months."
Appellant's evidence established he was married, did
volunteer work, and was currently employed by Canon Information
Technology Services, Inc. He also presented evidence of
work-related achievements and commendations he had received
during his years of employment. Appellant's wife testified that
appellant had been a role model and the only father her child by
a previous marriage had known. She also stated that appellant
was a good father and supported his daughter by a previous
marriage, paying more than the order of support required.
Despite appellant's record of good behavior for seven
years, the trial court revoked the entire twenty-six years of
his suspended sentences.
II. ABUSE OF DISCRETION
Appellant contends the trial court erred when it imposed
the entire twenty-six years of his previously suspended
sentences. Under the facts of the instant case, we agree.
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Code § 19.2-306 provides, in pertinent part:
The court may, for any cause deemed by it
sufficient which occurred at any time within
the probation period . . . revoke the
suspension of sentence and any probation
. . . whereupon, in case the imposition of
sentence has been suspended, the court may
pronounce whatever sentence might have been
originally imposed.
In reviewing an order revoking a suspended sentence, we
have previously noted that:
Although the power of the court to revoke a
suspended sentence granted by this Code
section is broad, it is not without
limitation. "The cause deemed by the court
to be sufficient for revoking a suspension
must be a reasonable cause. The sufficiency
of the evidence to sustain an order of
revocation 'is a matter within the sound
discretion of the trial court. Its finding
of fact and judgment thereon are reversible
only upon a clear showing of abuse of such
discretion.' The discretion required is a
judicial discretion, the exercise of which
'implies conscientious judgment, not
arbitrary action.'"
Duff v. Commonwealth, 16 Va. App. 293, 297, 429 S.E.2d 465, 467
(1993) (emphasis added) (citations omitted).
In sentencing, the "punishment should fit the offender and
not merely the crime." McClain v. Commonwealth, 189 Va. 847,
860, 56 S.E.2d 49, 55 (1949).
The true objective of suspended sentencing
is to rehabilitate and to encourage a
convicted defendant to be of good behavior.
To accomplish this it is necessary that good
conduct be rewarded. It is important that a
defendant know that good conduct on his part
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will expedite his complete restoration to
society.
Hamilton v. Commonwealth, 217 Va. 325, 328, 228 S.E.2d 555, 556-
57 (1976). See also Woosley v. United States, 478 F.2d 139,
143-44 (8th Cir. 1973) (holding that mechanical sentencing is
not appropriate because sound discretion requires consideration
of all the circumstances of the crime and the sentencing judge
is authorized, if not required, to consider all of the
mitigating circumstances involved because sentences must be
tailored to fit the offender); United States v. Mooney, 654 F.2d
482, 487 (7th Cir. 1981) (holding that where a court follows a
purely mechanical policy of sentencing defendants to maximum
terms with no consideration for individual circumstances, it
abdicates its responsibility to exercise its discretion).
Thus, the imposition of twenty-six years, the entire amount
of appellant's suspended time, for a larceny conviction, two
missed probation meetings in seven years and failure to pay
complete restitution, is disproportionate to the violations.
The evidence was undisputed that appellant had done well on
probation and was being "monitored" only for restitution
purposes. The imposition of this amount of incarceration for a
non-violent offender reflects neither the offender nor the
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crime, and fails to reflect the court gave proper consideration
to the evidence presented in mitigation. 2
We reverse and remand for re-sentencing.
Reversed and remanded.
2
Appellant also argues first that the imposition of the
twenty-six-year sentence for a non-violent shoplifting offense
was so extreme and disproportionate to the offense that it
constituted cruel and unusual punishment within the meaning of
the Eighth Amendment. As an additional ground he contends the
trial court had a "hard and fast rule" of revoking an entire
sentence whenever there has been any violation of the conditions
of probation, regardless of how disproportionate the sentence
was to the violated condition. Because we reverse on other
grounds, we do not address these additional contentions.
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