                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia


PHILLIP ASHBY MITCHELL
                                      MEMORANDUM OPINION * BY
v.   Record No. 2313-98-1       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        NOVEMBER 16, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Randolph T. West, Judge

            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.



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



                                - 2 -
     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

                               - 3 -
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

                                 - 4 -
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.



     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.

                                 - 5 -
          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. . . .

                               - 6 -
               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 § 19.2-306, "[t]he

court may, for any cause deemed by it sufficient within the

probation period, . . . revoke the suspension of sentence."

Code § 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).

                                - 7 -
     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.




     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.").

                               - 8 -
