                     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

                                 - 2 -
        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).

                                 - 3 -
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.




                                 - 4 -
     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


                                - 5 -
             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




                                 - 6 -
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.

                              - 7 -
