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MITCHELL v. COMMONWEATH



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MITCHELL

v.

COMMONWEALTH


NOVEMBER 16, 1999

Record No. 2313-98-1

PHILLIP ASHBY MITCHELL

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

Randall T. West, Judge

Present: Chief Judge Fitzpatrick, Judges Willis
and Annunziata

Argued at Chesapeake, Virginia

MEMORANDUM OPINION* BY CHIEF JUDGE
JOHANNA L. FITZPATRICK

Jeffrey C. Rountree for appellant.

Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.


Phillip Ashby Mitchell (appellant) was
convicted on March 13, 1998, of two counts of embezzlement
and one count of grand larceny by false pretenses. The trial
court sentenced appellant to three ten-year terms and suspended
all of the time imposed. At a subsequent revocation hearing, the
trial court revoked all of the suspended sentences but suspended
nine years of the ten years previously imposed on each count. On
appeal, appellant argues the trial court abused its discretion in
revoking part of his suspended sentences. Finding no error, we
affirm.

I.

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). So viewed, the evidence established that on March 13,
1998, appellant pled guilty to two counts of embezzlement and one
count of grand larceny by false pretenses. On each count, the
trial court sentenced appellant to ten years imprisonment, all of
which was suspended. In addition to imposing one year of
supervised probation, the trial court ordered appellant to make
restitution in the amount of $5,000 to Charles and Kathleen
Johnson, $6,000 to Michael and Lori Stephenson, and $10,495 to
James B. Majka. Restitution was to be made by May 18, 1998.

On May 20, 1998, the Commonwealth filed a
motion to revoke appellant’s suspended sentences because he had
failed to make restitution as required. Additionally, Douglas
Weeks (Weeks), appellant’s probation officer, filed a Major
Violation Report, noting that appellant failed to obey the laws
of the Commonwealth by unlawfully displaying vehicles for sale
without a license. The report also charged that appellant
"continued to commit Fraud" in that he has "sold
vehicles and has failed to pay the owner’s (sic) as stated in the
contract."

At appellant’s May 26, 1998 revocation hearing,
appellant stipulated to the violations alleged in the probation
officer’s report. Appellant’s counsel gave the court restitution
checks for each of the victims in accordance with the court’s
prior sentencing order. Additionally, appellant indicated that,
upon his release from jail, he had arranged to begin a job as a
salesman for a local radio station.

Although appellant stipulated to the violations
alleged by his probation officer, and the trial court could have
revoked appellant’s suspended sentence at that time, the trial
court gave appellant another opportunity to pay off his
outstanding debts to parties that were not the subject of the
instant offenses. The revocation hearing was continued to July 7,
1998, thus allowing appellant additional time to provide the
court with "a breakdown of everything that he agrees to that
he has defrauded people out of and what he intends to do about
it, on what schedule, etc." (i.e., to show that he
was of "good behavior").

On July 7, 1998, appellant presented the trial
court a list of outstanding debts owed to different victims. At
that hearing, the trial court learned that appellant never began
the job at the radio station and that he was now employed by
Terminix. Since the new position involved appellant going to the
homes of potential customers and recommending that certain work
be completed, the trial court was concerned that appellant might
attempt to defraud customers to increase his commissions.
Accordingly, the trial court required appellant to return on
September 9, 1998 with a different job. Appellant was also
ordered to provide proof that substantial payment had been made
on his outstanding debts.

On September 9, 1998, appellant reported that
he had gotten a new job at Haynes Furniture. When asked whether
he had made any restitution payments to Sharon Richardson
(Richardson) and Marvin Whitmore (Whitmore), appellant presented
the trial court with copies of two cashier’s check stubs as proof
that payment had been made to these parties. However, the stubs
also indicated that the checks were made out to "Mitchell
Auto Sales," appellant’s business. Unclear as to whether
appellant actually paid the victims, the trial court stated,
"I am tired of playing with this. I have bent over backwards
and I’m not getting the results that I want. Every time it’s
something different. Who did this money go to?" Appellant
unequivocally stated that both Richardson and Whitmore received
the checks.

The court again continued the hearing to the
next day to verify whether the victims had been paid. At that
hearing, Ms. Richardson testified that she received no monies or
check from appellant. Appellant’s probation officer, Mr. Weeks,
confirmed with the First Advantage Federal Credit Union that the
two cashier’s checks, payable to "Mitchell Auto Sales or
Sharon Richardson" and "Mitchell Auto Sales or Marvin
Whitmore," were cashed and deposited into appellant’s
business bank account. The Commonwealth also introduced into
evidence two handwritten notes, in which appellant pleaded with
the victims to "work with [him]" regarding the
restitution payments.
[1]

Appellant then testified, stating that he was
sorry for what he had done. He stated that he used the cashier’s
checks to keep his house out of foreclosure, and appellant
admitted that he did not pay the victims, despite his prior
testimony that he had paid them. Appellant testified as follows:

Q. You were supposed to be in here yesterday to
give proof of payment of restitution to Ms. Richardson and Mr.
Whitemore, correct?

A. Yes, sir.

Q. And as part of that proof, you gave the
Judge those check stubs?

* * * * * * *

A. From what I understood, cashier’s, yes.

Q. But the money didn’t go to Ms. Richardson or
Mr. Whitmore?

A. That’s why I went out there yesterday. I was
going to have proof this morning.

Q. That money did not go to them?

A. No, sir.

Q. You were lying to the Court?

A. Sir, I was going to try to straighten it out
yesterday.

Q. You were lying to the Court?

A. Not my intention, sir.

Ms. Richardson was called again to the stand to
confirm that appellant had not paid her any money.

At the conclusion of the evidence, the trial
court revoked appellant’s suspended sentences. The trial judge
stated:

Mr. Mitchell, this court, the Commonwealth and
everyone else has bent over backwards trying to get this matter
straightened out so that you could stay out of jail. . . . As I
pointed out a moment ago, from the day this Court found you
guilty of [the charges], I set the case down for sentencing, you
walked out of this court and perpetrated the same identical
offense, knowing that you were coming back before this Court for
sentencing. . . . You have done nothing but lie to this Court day
in and day out, every time you have been in here, and I don’t
even think the truth is within you. . . .

There’s nothing this Court can do for you and I
think it’s time you started paying society.

I’m granting the motion to revoke on all three
indictments. . . .

Although the trial court revoked the suspended
sentences of ten years on all three counts, the court
re-suspended nine years on each count for a period of ten years
and imposed two years of supervised probation or "until all
debts and court costs have been repaid, whichever is later."

II.

Pursuant to its authority under Code
Sect. 19.2-306, "[t]he court may, for any cause
deemed by it sufficient
within the probation period, . . .
revoke the suspension of sentence." Code Sect. 19.2-306
(emphasis added). "A revocation . . . must be based on
reasonable cause but a court has broad discretion in making such
a determination." Resio v. Commonwealth, 29 Va. App.
616, 621, 513 S.E.2d 892, 895 (1999) (quoting Patterson v.
Commonwealth
, 12 Va. App. 1046, 1048, 407 S.E.2d 43, 44
(1991)). "To put the matter another way, the sufficiency of
the evidence to sustain . . . revocation is a matter within the
sound discretion of the trial court, . . . reversible only upon a
clear showing of an abuse of such discretion." Id.
(quoting Slayton v. Commonwealth, 185 Va. 357, 367, 38
S.E.2d 479, 484 (1946)); see also Holden v.
Commonwealth
, 27 Va. App. 38, 41, 497 S.E.2d 492, 493 (1998).

The evidence clearly established that appellant
violated the conditions of his probation. Appellant (1) failed to
make timely restitution payments to the three victims defrauded
in the underlying convictions; (2) continued to fraudulently
obtain money from other individuals, thus violating a condition
of his suspended sentences that he obey the laws of the
Commonwealth; and (3) lied to the court. See Cottrell
v. Commonwealth
, 12 Va. App. 570, 574, 405 S.E.2d 438, 441
(1991) ("Deceit, untruthfulness and deception . . . are
always grounds for revoking a suspended sentence.").
Accordingly, we conclude that the trial court did not abuse its
discretion in revoking appellant’s suspended sentences.
[2] The judgment of the trial court is affirmed.

Affirmed.

* Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

 

FOOTNOTES:

[1] The letter to Ms. Richardson,
which was delivered to her residence by appellant on September 8,
1998, stated the following:

I am doing everything with in (sic) my power to
get a loan so that I can pay your money. This was supposed to
have been mail[ed] one day last week but I understand that it
wasn’t until [S]unday. I am trying three [d]ifferent [p]laces to
borrow money. I really want to pay you. I am trying hard to get
your money. Mr. Weeks will probably be calling you to see if you
received this. Please work with me. Thank you.

The letter to Mr. Whitmore made a similar plea,
stating the following:

You will be receiving this [check] just as soon
as we get your last name spell (sic) right. I have a [p]robation
officer that will be calling you by the name of Mr. Weeks. He
will be asking you if you received this [check] yet. I wish you
wouldn’t have to talk to him. . . . He is trying to put me in
jail.

[2] Appellant also argues that the
trial court did not have the authority to order restitution in
any cases not pending before the court and, therefore, the
failure to pay Richardson or Whitmore was an improper factor to
consider in revoking his suspended sentences. However, appellant
did not raise this issue before the trial court and his claim is
barred on appeal. See Rule 5A:18; Connelly v.
Commonwealth
, 14 Va. App. 888, 891, 420 S.E.2d 244, 246
(1992) ("A matter not in dispute before the trial court will
not be considered for the first time on appeal."); Martin
v. Commonwealth
, 13 Va. App. 524, 530, 414 S.E.2d 401, 404
(1992) ("The primary function of Rule 5A:18 is to alert the
trial judge to possible error so that the judge may consider the
issue intelligently and take any corrective actions necessary to
avoid unnecessary appeals, reversals and mistrials.").

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