                      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 -
