COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Overton Argued at Alexandria, Virginia
DOROTHY MAE JOHNSON MEMORANDUM OPINION * BY v. Record No. 0760-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 15, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Carleton Penn, Judge Designate
Cindy Leigh Decker, Senior Assistant Public Defender (Joseph R. Winston, Special Appellant Counsel; Office of the Public Defender; Public Defender Commission, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Dorothy Mae Johnson (appellant) contends that the trial
court erred in revoking her suspended sentence for failure to
pay restitution. Finding no error, we affirm.
I. Background
The essential facts are undisputed. On May 3, 2000, the
trial court accepted appellant's guilty plea to a charge of
embezzlement in violation of Code § 18.2-111 and sentenced
appellant to five years in prison with four years suspended,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. placed her in the Home-Electronic Incarceration Program (HEIP),
and ordered restitution in the amount of $12,530.86. The May
26, 2000 sentencing order required "that all income earned by
the defendant shall be paid toward restitution until the total
amount of restitution has been paid." 1 Appellant failed to make
any restitution payments. As a consequence, on December 4,
2000, the trial court issued a rule to show cause why
appellant's suspended sentence should not be revoked. The
return date on the Rule was rescheduled from January 11 to
February 9, 2001 and ultimately to March 9, 2001. During the
three-month interval between service of the Rule and the
hearing, appellant again made no restitution payments.
At the revocation hearing on March 9, 2001, appellant
admitted that she had not made any restitution payments and,
once again, did not offer to pay any monies. She contended that
she had not made any payment to the victims because she "thought
probation was going to get ahold [sic] of them." She stated she
thought "it was going to be handled after I went off of home
monitoring" and that the probation office never contacted her
regarding a payment arrangement. Appellant claimed to have
called the probation office and spoken with an employee who told
her not to call the office again until she was released from
home monitoring. As a result, appellant argues that as a matter
of law, her failure to make any payments was not willful.
1 This order was not appealed. - 2 - Noting that "[t]his isn't the first offense for this lady, and
she's not done what she was supposed to do," the trial court
revoked appellant's suspended sentence.
II. Analysis
"In any case in which the court has suspended the execution
or imposition of sentence, the court may revoke the suspension
of sentence for any cause the court deems sufficient that
occurred at any time within the probation period, or within the
period of suspension fixed by the court." Code § 19.2-306(A).
"'The court's findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion.'"
Keselica v. Commonwealth, 34 Va. App. 31, 35, 537 S.E.2d 611,
613 (2000) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86,
402 S.E.2d 684, 687 (1991)).
Appellant first argues that the sentencing order failed to
state the method of payment and where the monies were to be paid
and, as a result of these deficiencies, she was not required to
make restitution payments until she was released from HEIP.
Appellant failed to make these arguments at the revocation
hearing. Thus, she may not raise them for the first time on
appeal. See Rule 5A:18. The ends of justice do not compel a
different result.
Next, appellant argues that her failure to pay was not
willful because she misunderstood the court's directive. She
was "upset" and did not understand the trial court's order at
- 3 - her original sentencing. Additionally, she contends that she
contacted the probation office and was told that she was not
under their supervision until her release from HEIP. Therefore,
appellant contends that her failure to pay was not willful; but
resulted from a misapprehension as to how and when she was to
make the payments.
"Although the power of the court to revoke a suspended
sentence granted by this Code section is broad, it is not
without limitation." Duff v. Commonwealth, 16 Va. App. 293,
297, 429 S.E.2d 465, 467 (1993). "The cause deemed by the court
to be sufficient for revoking a suspension must be a reasonable
cause." Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d
555, 556 (1976) (internal citations and quotations omitted).
"[O]nly [an] 'unreasonable' failure to pay restitution shall
result in revocation of a suspended sentence." Duff, 16
Va. App. at 298, 429 S.E.2d at 467.
"The trial court's order suspending [appellant's] sentence
and setting the terms and conditions of the suspension was in
writing and was plainly stated." Keeling v. Commonwealth, 25
Va. App. 312, 315, 487 S.E.2d 881, 883 (1997). The plain
language of the sentencing order required that "all income
earned . . . be paid toward restitution until the total amount
of restitution has been paid."
The trial court did not abuse its discretion in finding
appellant's failure to pay willful. Assuming appellant
- 4 - attempted to contact the probation office, that action alone
does not relieve her from her obligation to make restitution.
In finding appellant willfully failed to make her restitution
payments, the trial court considered that (1) she was in court
at the time of sentencing and "presumed to have heard" her
obligation to pay; (2) she had an extensive criminal history
that included an earlier restitution order for $11,997 that was
unpaid and required her wages to be garnished; and (3) at the
time of the revocation hearing, appellant had not made "even a
token payment." Credible evidence supports the trial judge's
finding that appellant's failure to pay was willful.
Lastly, appellant argues that she had no ability to pay her
restitution because of her HEIP costs and other
responsibilities.
[T]he ability to pay is a necessary consideration in the trial court's determination of cause for the failure to pay restitution ordered as a condition of a suspended sentence. Where the evidence establishes that the failure resulted solely from an inability to pay and not a willful refusal, it is an abuse of discretion to automatically revoke the prior suspended sentence without considering reasonable alternatives to imprisonment.
Duff, 16 Va. App. at 298-99, 429 S.E.2d at 468. Appellant's
reliance on Duff is misplaced. In Duff, "[t]he parties agree[d]
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Overton Argued at Alexandria, Virginia
DOROTHY MAE JOHNSON MEMORANDUM OPINION * BY v. Record No. 0760-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 15, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Carleton Penn, Judge Designate
Cindy Leigh Decker, Senior Assistant Public Defender (Joseph R. Winston, Special Appellant Counsel; Office of the Public Defender; Public Defender Commission, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Dorothy Mae Johnson (appellant) contends that the trial
court erred in revoking her suspended sentence for failure to
pay restitution. Finding no error, we affirm.
I. Background
The essential facts are undisputed. On May 3, 2000, the
trial court accepted appellant's guilty plea to a charge of
embezzlement in violation of Code § 18.2-111 and sentenced
appellant to five years in prison with four years suspended,
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. placed her in the Home-Electronic Incarceration Program (HEIP),
and ordered restitution in the amount of $12,530.86. The May
26, 2000 sentencing order required "that all income earned by
the defendant shall be paid toward restitution until the total
amount of restitution has been paid." 1 Appellant failed to make
any restitution payments. As a consequence, on December 4,
2000, the trial court issued a rule to show cause why
appellant's suspended sentence should not be revoked. The
return date on the Rule was rescheduled from January 11 to
February 9, 2001 and ultimately to March 9, 2001. During the
three-month interval between service of the Rule and the
hearing, appellant again made no restitution payments.
At the revocation hearing on March 9, 2001, appellant
admitted that she had not made any restitution payments and,
once again, did not offer to pay any monies. She contended that
she had not made any payment to the victims because she "thought
probation was going to get ahold [sic] of them." She stated she
thought "it was going to be handled after I went off of home
monitoring" and that the probation office never contacted her
regarding a payment arrangement. Appellant claimed to have
called the probation office and spoken with an employee who told
her not to call the office again until she was released from
home monitoring. As a result, appellant argues that as a matter
of law, her failure to make any payments was not willful.
1 This order was not appealed. - 2 - Noting that "[t]his isn't the first offense for this lady, and
she's not done what she was supposed to do," the trial court
revoked appellant's suspended sentence.
II. Analysis
"In any case in which the court has suspended the execution
or imposition of sentence, the court may revoke the suspension
of sentence for any cause the court deems sufficient that
occurred at any time within the probation period, or within the
period of suspension fixed by the court." Code § 19.2-306(A).
"'The court's findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion.'"
Keselica v. Commonwealth, 34 Va. App. 31, 35, 537 S.E.2d 611,
613 (2000) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86,
402 S.E.2d 684, 687 (1991)).
Appellant first argues that the sentencing order failed to
state the method of payment and where the monies were to be paid
and, as a result of these deficiencies, she was not required to
make restitution payments until she was released from HEIP.
Appellant failed to make these arguments at the revocation
hearing. Thus, she may not raise them for the first time on
appeal. See Rule 5A:18. The ends of justice do not compel a
different result.
Next, appellant argues that her failure to pay was not
willful because she misunderstood the court's directive. She
was "upset" and did not understand the trial court's order at
- 3 - her original sentencing. Additionally, she contends that she
contacted the probation office and was told that she was not
under their supervision until her release from HEIP. Therefore,
appellant contends that her failure to pay was not willful; but
resulted from a misapprehension as to how and when she was to
make the payments.
"Although the power of the court to revoke a suspended
sentence granted by this Code section is broad, it is not
without limitation." Duff v. Commonwealth, 16 Va. App. 293,
297, 429 S.E.2d 465, 467 (1993). "The cause deemed by the court
to be sufficient for revoking a suspension must be a reasonable
cause." Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d
555, 556 (1976) (internal citations and quotations omitted).
"[O]nly [an] 'unreasonable' failure to pay restitution shall
result in revocation of a suspended sentence." Duff, 16
Va. App. at 298, 429 S.E.2d at 467.
"The trial court's order suspending [appellant's] sentence
and setting the terms and conditions of the suspension was in
writing and was plainly stated." Keeling v. Commonwealth, 25
Va. App. 312, 315, 487 S.E.2d 881, 883 (1997). The plain
language of the sentencing order required that "all income
earned . . . be paid toward restitution until the total amount
of restitution has been paid."
The trial court did not abuse its discretion in finding
appellant's failure to pay willful. Assuming appellant
- 4 - attempted to contact the probation office, that action alone
does not relieve her from her obligation to make restitution.
In finding appellant willfully failed to make her restitution
payments, the trial court considered that (1) she was in court
at the time of sentencing and "presumed to have heard" her
obligation to pay; (2) she had an extensive criminal history
that included an earlier restitution order for $11,997 that was
unpaid and required her wages to be garnished; and (3) at the
time of the revocation hearing, appellant had not made "even a
token payment." Credible evidence supports the trial judge's
finding that appellant's failure to pay was willful.
Lastly, appellant argues that she had no ability to pay her
restitution because of her HEIP costs and other
responsibilities.
[T]he ability to pay is a necessary consideration in the trial court's determination of cause for the failure to pay restitution ordered as a condition of a suspended sentence. Where the evidence establishes that the failure resulted solely from an inability to pay and not a willful refusal, it is an abuse of discretion to automatically revoke the prior suspended sentence without considering reasonable alternatives to imprisonment.
Duff, 16 Va. App. at 298-99, 429 S.E.2d at 468. Appellant's
reliance on Duff is misplaced. In Duff, "[t]he parties agree[d]
that the failure to pay the restitution resulted from an
inability to pay it rather than from an unwillingness or refusal
to do so." Id. at 296, 429 S.E.2d at 467.
- 5 - In the instant case, while the amount of money available
for payments was not great, appellant was not unable to pay any
money toward restitution. At the sentencing hearing, appellant
admitted that she had a job and that her husband stated his
intent to continue to support her, thereby enabling her earnings
to be applied to the restitution amount. Thus, the sentencing
order directed that all of her earnings go toward restitution.
Appellant stated that she earned $450 to $480 every two weeks
and that the cost of HEIP was $420 per month. Appellant noted
that she used the money she earned to pay for car insurance,
gasoline, medical prescriptions, and a second restitution in
Stafford County. Appellant made these payments in violation of
the sentencing order to pay "all income" toward restitution.
Finally, we note that appellant could have petitioned the
court to amend the order to account for these costs. Again, she
did not. "Barring modification, [appellant's] obligation was to
pay [restitution] according to the [sentencing] order."
Keeling, 25 Va. App. at 316, 487 S.E.2d at 883. Appellant
received the benefit of a four-year suspended sentence and
participation in HEIP on the understanding that she would pay
restitution as required by the sentencing order. Given
appellant's failure to make a single payment in the eight months
from the entry of the sentencing order, the issuance of the show
cause and the revocation hearing, we cannot say that the trial
court abused its discretion in revoking her suspended sentence.
- 6 - Finding no error in the trial court's action, we affirm.
Affirmed.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 7 - Benton, J., dissenting.
The final conviction order, which sentenced Dorothy Mae
Johnson to five years in prison, contains the following
provision pertinent to this appeal:
[T]he Court deeming it compatible with the public interest so to do, adjudges and orders that the execution of all but twelve (12) months of the said sentence heretofore imposed be and the same is hereby suspended, and the defendant is placed on probation, under the supervision of the Probation and Parole Officer of this Court for a period of five (5) years after her release from incarceration, to comply with all of the terms and conditions of probation as set forth in the order of this Court entered on June 22, 1995, in Miscellaneous Order Book 5, page 1769. The defendant shall pay restitution in the amount of 12,530.86. The Court ORDERS that all income earned by the defendant shall be paid toward restitution until the total amount of restitution has been paid.
It is further ORDERED that pursuant to Section 53.1-131.2(C) of the Code of Virginia, as amended, that the defendant be assigned to a Home-Electronic Incarceration Program to be administered by the Fauquier County Detention Center to serve her twelve-month jail sentence.
The order does not direct Johnson to pay the money to any
particular place or person.
Johnson testified that when she entered the home
incarceration program "probation never got in touch with [her]
about a payment arrangement." When she contacted the probation
office to ask for a restitution plan, she was told, "don't
contact [the probation] office again until [she] was off of home
- 8 - monitoring." Johnson testified that she "thought [restitution]
was going to be handled after [she] went off of home
monitoring."
"[T]he requirement of Code § 19.2-305.1(D) that only
'unreasonable' failure to pay restitution shall result in
revocation of a suspended sentence restricts the scope of the
court's authority under Code § 19.2-306 to revoke a suspension
for 'any cause' deemed by it sufficient." Duff v. Commonwealth,
16 Va. App. 293, 298, 429 S.E.2d 465, 467 (1993). Johnson
asserted at trial that she "believ[ed] that the payment
arrangements would be made with the probation office . . .
and was told that she would not be put on probation until she
was done with the home electronic incarceration."
The record does not establish that Johnson's belief that
the payments were to begin when she was released from home
incarceration was unreasonable. Indeed, the sentencing order
places the restitution provision in the paragraph designating
"conditions of probation" and referencing "release from
incarceration." Moreover, the sentencing order did not specify
when the payments were to commence or to whom they were to be
delivered. No evidence established that Johnson had ever been
told when to commence payments or where to make them. In view
of the sentencing order, it is reasonable to believe those
matters would be coordinated by the probation office. Johnson's
- 9 - contact with the probation office, rather than dispelling her
belief, tended to reinforce it.
The trial judge revoked the suspension solely because
Johnson has "violated the terms of her probation." Johnson was
told, however, by the probation office, which was assigned to
supervise her probation, that she should not contact them until
her incarceration ended. "A reasonable failure to pay
restitution negates a reasonable cause to revoke a suspended
sentence." Duff, 16 Va. App. at 298, 429 S.E.2d at 467.
Johnson's reasonable misapprehension negates the trial judge's
reasons for revoking the suspension. The record establishes
that Johnson's misapprehension was not entirely of her own
making and was not willful.
For these reasons, I would hold that Johnson's failure to
commence her payments was not based on an unreasonable belief,
and I would reverse the order revoking the suspended sentence.
- 10 -