                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, AtLee and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Norfolk, Virginia


              ALYSIA ANNE LANGEN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0745-16-1                                   JUDGE RANDOLPH A. BEALES
                                                                                   APRIL 11, 2017
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                               David F. Pugh, Judge

                               Heather M. Barnes, Assistant Public Defender, for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Alysia Anne Langen (appellant) appeals the April 19, 2016 orders of the Circuit Court of

              the City of Newport News revoking her previously suspended sentences. Appellant argues on

              appeal that the evidence was insufficient to prove that she “violated the terms and conditions of

              her probation because there was no requirement [that] restitution be paid within two years.”

                                                        I. BACKGROUND

                     We consider the evidence on appeal “in the light most favorable to the Commonwealth, as

              we must since it was the prevailing party” in the circuit court. Beasley v. Commonwealth, 60

              Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

              330, 601 S.E.2d 555, 574 (2004)). On March 26, 2014, the circuit court convicted appellant of

              one count of grand larceny in violation of Code § 18.2-95 and one count of larceny with intent to

              sell or distribute in violation of Code § 18.2-108.01. The court sentenced appellant to five years



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on each conviction. The court suspended four years and ten months on the grand larceny charge

and all five years on the larceny with intent to sell or distribute charge. Both suspensions were

conditioned upon an indefinite period of good behavior or until restitution was paid in full. The

circuit court ordered appellant to pay $47,000 in restitution. The court also placed appellant on

supervised probation for two years. The sentencing orders noted that the “Probation Officer

shall monitor [appellant’s] restitution payments.”

        On March 11, 2016, the circuit court issued a notice and rule to show cause as to why

appellant’s suspended sentences should not be revoked. After a hearing on April 11, 2016, the

circuit court revoked appellant’s suspended sentence (four years and ten months) from the grand

larceny conviction. The court also revoked appellant’s five-year suspended sentence from the

larceny with intent to sell or distribute conviction. By orders entered April 19, 2016, the circuit

court resuspended the revoked sentences.1 The resuspended sentences required appellant to be

“of good behavior indefinitely or until restitution is paid in full.” The court also extended

appellant’s probation indefinitely – or until restitution was paid in full. The written orders

indicate that appellant had agreed to pay a minimum of $100 per month towards her restitution

obligation beginning May 15, 2016.

                                            II. ANALYSIS

        “When a defendant fails to comply with the terms and conditions of a suspended

sentence, the trial court has the power to revoke the suspension of the sentence in whole or in

part.” Alsberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522, 525 (2002). “In

revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed unless


        1
          For the larceny with intent to sell or distribute charge, the circuit court revoked all five
years of the suspended sentence and then resuspended the revoked sentence. On the grand
larceny charge, the circuit court revoked appellant’s suspended sentence of four years and ten
months. The court then resuspended three years and ten months of that revoked sentence. The
court then sentenced appellant to “[o]ne year to serve suspended as long as restitution is paid.”
                                                  -2-
there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App. 529,

535, 738 S.E.2d 519, 521-22 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86, 402

S.E.2d 684, 687 (1991)). “The evidence is considered in the light most favorable to the

Commonwealth, as the prevailing party below.” Id. at 535, 738 S.E.2d at 522.

       After suspending a sentence, a circuit 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 circuit court’s

discretion is more limited, however, when the basis for the revocation of a suspended sentence is

the defendant’s failure to pay restitution. Code § 19.2-305.1(E) states,

               Unreasonable failure to execute the plan by the defendant shall
               result in revocation of the probation or imposition of the suspended
               sentence. A hearing shall be held in accordance with the
               provisions of this Code relating to revocation of probation or
               imposition of a suspended sentence before either such action is
               taken.

Thus, when Code §§ 19.2-305.1 and 19.2-306 are applied in conjunction,

               the requirement of Code § 19.2-305.1[(E)] 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. In short, a reasonable failure to pay
               restitution negates a reasonable cause to revoke a suspended
               sentence.

Duff v. Commonwealth, 16 Va. App. 293, 298, 429 S.E.2d 465, 467 (1993).

       Given the very limited evidence in the record on appeal, we find that the circuit court

abused its discretion when it revoked appellant’s suspended sentences. Appellant’s probation

began on March 21, 2014. On April 1, 2014, appellant signed her probation agreement with

Newport News Probation and Parole. The revocation hearing was held two years later on April

11, 2016. At that hearing, the Commonwealth presented very little evidence to the circuit court.

Appellant’s probation agreement (which apparently covered her restitution payment plan) was
                                               -3-
not offered into evidence at the revocation hearing. Thus, that key information is not part of the

record on appeal.

       The probation officer’s “Major Violation Report” described appellant’s violation in the

following terms:

               Langen was ordered to pay restitution in the amount of $47,000.00.
               To·date, Langen’s restitution balance is $46,070.00. Langen has
               resided in both Hampton and Newport News, therefore, her
               probation has been supervised intermittently by both probation
               offices. It appears that monies submitted by Langen, through the
               Newport News Clerk’s Office, have been applied to both
               restitution and court costs. Prior to transferring to Hampton, this
               Officer instructed Langen to make payments in the amount of
               $80.00 per month. Upon her transfer to Hampton and due to
               childbirth that resulted in a broken tail bone for Ms. Langen, that
               amount was temporarily lowered to $40.00, by the Hampton
               Officer. Ms. Langen has advised that her family is relocating back
               to Hampton.

At the revocation hearing, appellant’s counsel argued:

               MS. BARNES: [A]ccording to the report, Ms. Langen was
               ordered to make monthly payments in agreement with her
               probation officer; that those payments were to be $40 a month. At
               the most recent time, she was making those. I realize that she’s
               reached the end of her probation period, and the whole $47,000 has
               not been paid, but I don’t believe that she is in violation since she
               was making payments as required per the order of her probation
               officer.
                        She was out of work due to a broken tailbone incurred
               during pregnancy, and she continued to make her payments during
               her period of convalescence. And she has just received
               authorization to go back to work April 7th.

The probation officer, Marian Gallagher, testified:

               Ms. Langen was initially with me. I had her on a $75-a-month
               payment plan. She relocated to Hampton. They lowered it to 40.
               She recently has moved out to Salem, and now she’s moved to
               Denbigh. So it’s been difficult to track because she’s been so
               transient with her residence.
                       But now she’s come here to work, I think it’s reasonable to
               require one or $200 a month for the payment.



                                               -4-
Neither the Commonwealth nor appellant’s counsel asked the probation officer any questions at

the revocation hearing. The circuit court revoked appellant’s suspended sentences.

       The evidence before the circuit court was that appellant had only paid $930 in restitution

as of the date of the major violation report, March 8, 2016. However, the major violation report

does not allege that appellant failed to make her restitution payments every month – or as

required by her April 1, 2014 probation agreement. The report merely notes that appellant has an

outstanding balance of $46,070 and that appellant’s monthly payment was reduced from either

$75 or $80 per month to $40 per month temporarily at some point while appellant was

recovering from childbirth and a broken tailbone. Appellant’s counsel proffered that her client

had not violated the terms of her suspended sentence because appellant “was making payments

as required per the order of her probation officer.” This statement was not rebutted by the

evidence as the probation officer did not testify that appellant had failed to make any of her

required monthly restitution payments.

       In addition, the record is silent as to when appellant’s first restitution payment was due.

No evidence was presented regarding how many restitution payments had become due by the

time of the revocation hearing. While the record indicates that appellant’s monthly payment plan

was reduced from either $75 or $80 per month to $40 per month, there is no indication as to

when this change occurred. There is also no evidence in the record of how many restitution

payments appellant actually made toward her obligation – and how many the April 1, 2014 plan

required her to make by the date that the “Major Violation Report” was issued on March 8, 2016.

No questions asked of the probation officer at the revocation hearing really clarified these issues




                                                -5-
and, most importantly, appellant’s probation agreement (and restitution payment plan) is not

even a part of the record.2

       In summary, there is no evidence in the record that shows whether or when appellant

failed to make any of the monthly restitution payments that she was required to make. The court

orders were silent on any payment plan, and the payment plan agreement apparently reached

with the probation officer was never admitted into evidence and is, therefore, not a part of the

record on appeal that this Court can consider. Because the evidence was insufficient to prove

that appellant failed to pay restitution according to her repayment plan, we necessarily must

conclude that there was no evidence that appellant’s alleged failure to pay restitution was

unreasonable. By statute, only an “unreasonable” failure to pay restitution can result in the

revocation of probation or imposition of a suspended sentence. See Code § 19.2-305.1(E); Duff,

16 Va. App. at 298, 429 S.E.2d at 467 (“the requirement of Code § 19.2-305.1[(E)] 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”).

       Based on this record, this Court can only speculate as to how the circuit court found that

appellant had unreasonably failed to pay her restitution, especially given that there was no

information that showed which required payment amounts on which dates she had failed to pay.

The Commonwealth acknowledges that appellant was not expected to pay the full $47,000 of

restitution by March 2016. For these reasons, we find that the circuit court erred when it revoked




       2
        The record is silent as to why appellant’s probation agreement was not offered into
evidence. Likewise, the record provides no insight as to why the Commonwealth failed to elicit
testimony from the probation officer regarding the specific details of appellant’s restitution
payment plan.
                                              -6-
appellant’s suspended sentences because there was insufficient evidence in the record as to

whether and when appellant had unreasonably failed to pay restitution.

                                             III. CONCLUSION

       In short, we find that there was insufficient evidence in the record to allow the circuit

court to find that appellant violated the terms of her suspended sentences by failing to timely pay

restitution. The April 1, 2014 probation agreement that apparently included a required schedule

of restitution payments – when they were to begin and what amounts were due by what dates –

was never admitted into evidence. Furthermore, there was no specific testimony about what

payments appellant failed to pay by a particular date, and it was clear that appellant was not

expected to pay the entire $47,000 restitution by March 2016. Consequently, given the paucity

of information in the record, we must reverse the circuit court’s April 19, 2016 revocation orders,

and we remand the matter for further proceedings not inconsistent with this opinion.3

                                                                           Reversed and remanded.




       3
        Pursuant to the circuit court’s March 26, 2014 sentencing orders, appellant’s suspended
sentences remain in effect as well as appellant’s obligation to pay restitution to the victim.
Those suspensions of appellant’s sentences were conditioned upon an indefinite period of good
behavior “or until restitution is paid in full.”
                                                 -7-
