STEALING MAY BE STEALING BUT … NY PETIT LARCENY CONVICTION IS NOT SIMILAR TO PA RETAIL THEFT
The PA Superior Court has decided the case of Commonwealth v. Vandyke, No. 1882 MDA 2015 (March 1, 2017), holding that it was improper for the trial court to rely on the factual bases of Vandyke’s prior New York Petit Larceny convictions rather than focusing on the statutory elements of that offense when determining its similarity to Pennsylvania’s Retail Theft statute.
On August 6, 2015, Vandyke agreed to plead guilty to one count of Retail Theft. In PA, Retail Theft is committed when a person takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof.
The grading of a Retail Theft offense can vary from a summary to a felony, depending on the value of the items taken and/or the number of prior Retail Theft convictions occurring before the sentencing on the current violation. For example, if the current offense is a third or subsequent offense, it is graded as a felony. And, prior convictions include convictions for similar offenses under the statutes of any other state.
In Vandyke’s case, the parties agreed that the trial court would determine the grading of the offense.
When the parties appeared for sentencing, the Commonwealth introduced, over Vandyke’s objections, police reports from her two Petit Larceny convictions in New York. The statute defining the offense of Petit Larceny in New York simply states that “A person is guilty of petit larceny when he steals property.” After overruling Vandyke’s objections, the trial court reviewed the facts in the reports in order to determine the grading of the current offense. Those facts indicated that Vandyke stole items from a grocery store and a J.C. Penney’s retail establishment. The trial court therefore concluded that Vandyke’s two New York Petit Larceny convictions were similar in nature to PA’s Retail Theft statute and, therefore, graded Vandyke’s offense as a felony of the third degree.
Vandyke appealed, raising the question of whether the trial court – when determining if her New York convictions for Petit Larceny were similar offenses to the PA’s Retail Theft statute – was permitted to consider the facts underlying the New York convictions gleaned from police reports associated with those cases.
The Superior Court began by analyzing past cases involving the determination of whether two statutes were to be considered “equivalent” or “substantially similar.” In doing so, the Court’s statutory construction analysis led it the question of when and whether a reviewing court may look beyond the elements of a statute to the actual facts of the offenses involved to determine equivalency. However, the Court recognized that looking into the actual facts underlying any given conviction (as the Commonwealth was urging in Vandyke’s case), added complexities to the issue that were unnecessary. Instead, the Superior Court cited precedent that suggested that the focus should not be on the facts underlying a conviction; rather, the focus should be on the elements of the statute that triggered the conviction.
In an apparent nod to judicial restraint, the Superior Court cited now-Chief Justice Saylor from a prior concurring opinion wherein he wrote,”in the face of such complexities, and consistent with the application of judicial restraint in defining the scope of criminal liability, I continue to support the notion that ‘equivalent crimes’ are to be evaluated at an elemental level, absent more specific direction from the Legislature.”
The Superior Court also looked to prior case precedent regarding the calculation of prior record scores which also involve the analysis of equivalent convictions. In such cases, courts determining equivalent offenses must identify the elements of the foreign conviction and on that basis alone, identify the Pennsylvania statute that is substantially identical in nature and definition to the out-of- state offense.
Additionally, the Superior Court noted that the United States Supreme Court has expressed that there are Sixth Amendment concerns when a sentencing judge determines facts regarding prior convictions. Only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about “what the defendant and state judge must have understood as the factual basis of the prior plea” or “what the jury in a prior trial must have accepted as the theory of the crime.” He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.
The Superior Court therefore held that the trial court applied the wrong test and improperly focused on the facts of the offenses, not the similarity of the respective statutory elements.
Finally, having determined the trial court applied the incorrect test as a matter of law, the Superior Court addressed the issue of whether the New York statute of Petit Larceny crime is similar, under an elements test, to the PA Retail Theft statute. In doing so, it noted that although a conviction for Petit Larceny would apply to the theft of items from a retail establishment, it would also apply to theft of a bike from outside a home, tools from a construction site, or any number of crimes not involving retail thefts. Therefore, although all individuals convicted of stealing items from a retail store have committed Petit Larceny, few persons convicted of Petit Larceny have committed Retail Theft.
Accordingly, the Superior Court found that Petit Larceny is not similar to Retail Theft, and Vandyke’s conviction should have been graded as a summary offense.