Commonwealth v. Graeff
13 A.3d 516
| Pa. Super. Ct. | 2011Background
- Graeff stole merchandise valued at $129.19 in July 2009; arrested for retail theft.
- Commonwealth classified as second offense, second-degree misdemeanor due to Graeff's ARD participation from a prior unrelated case.
- Graeff moved to reduce grading to a first-time offense in February 2010; she pled guilty in March 2010 to the July 2009 theft.
- The Commonwealth argued ARD agreement language and ARD conditions made ARD participation count as a prior conviction for grading.
- Trial court held ARD participation could not count as an offense without statutory authorization and graded the offense as a first offense.
- Commonwealth appealed, arguing the statute is silent on ‘offense’ and ARD should count; court affirmed grading as first offense and legal sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ARD participation can count as a prior offense under §3929(b). | Graeff is barred; ARD terms should count as prior incidents. | Statute silent on ARD; only prior retail theft convictions count for grading. | ARD participation cannot be counted as an offense for grading; only prior retail theft convictions count. |
| Whether Graeff had a prior retail theft conviction at the time of her March 3, 2010 plea. | ARD from a prior case would count as a prior offense for grading. | No final retail theft conviction existed at plea; ARD was not yet revoked. | No prior retail theft conviction existed at plea; grading as first offense was proper. |
Key Cases Cited
- Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009) (recidivist interpretation; second offense requires conviction for first offense)
- Commonwealth v. Clipper, 449 A.2d 741 (Pa. Super. Ct. 1982) (retail theft grading; only retail theft convictions trigger enhancements)
- Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985) (ARD is a pretrial disposition; does not constitute conviction for grading)
- Commonwealth v. McDermott, 73 A. 427 (Pa. 1909) (second offense notion tied to conviction and judgment)
- Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001) (strict construction of penal statutes; avoid broad readings)
- Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005) (criminal statutes strictly construed; ambiguity resolved in defendant's favor)
- Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010) (illegal sentence when no statutory authorization; resentencing remedy)
- Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006) (standard of review for legality of sentence)