Court erred in raising grade of retail theft charges based on New York prior conviction

Commonwealth v Vandyke, 2017 PA Super 54 (3/1/2017)

Ms. Vandyke pled guilty to retail theft of $15.40 in merchandise form a store.  At sentencing, the Commonwealth introduced, over objection, evidence of two petit larceny convictions for thefts from store in New York. As a result, the sentencing court considered her to be a three time offender, and thus guilty of 3° felony retail theft. To the Superior Court she argued that 18 Pa.c.s.§3928(b.1)’s allowance of out of state convictions  (“a similar offense under the statutes of any other state or of the United States”) for increasing the grading required equivalency, and not, as the Commonwealth urged. The statute says similarity, the Court noted, and that was all that was required, but at that, the New York petit larceny statutes were not similar, and thus could not be used to increase the grading. The Court discussed, but ultimately declined to use, prior caselaw that assessed whether Pennsylvania and other jurisdictions’ statutes were equivalent, as only similarity was required. The underlying facts of the New York convictions could not be considered either— only their statutory elements. Using this test, the states were not similar, as the petit larceny statute covered theft form several types of victims, whereas the retail theft statute concerned only theft from retail establishments. Therefore the case was remanded for resentencing.

The Court also made note of the problems raised in Mathis v. United States, 136 S.Ct. 2243, 2252 (2016), which dealt with the way federal courts can consider certain prior convictions for state crimes when imposing federal sentences. The 6th Amendment ordinarily prohibits using the facts underlying those convictions to determine whether they can enhance the sentence.

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