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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