Claudia Kathleen Pitts v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Beales, Alston and Senior Judge Haley
Argued at Richmond, Virginia
CLAUDIA KATHLEEN PITTS
OPINION BY
v. 	Record No. 1728-15-2 	JUDGE JAMES W. HALEY, JR.
NOVEMBER 8, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Steven C. McCallum, Judge
J. Martelino, Jr., for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General; Benjamin H. Katz, Assistant Attorney General;
David M. Uberman, Assistant Attorney General, on brief), for
appellee.
Claudia Kathleen Pitts (appellant) was indicted for larceny after having twice been
convicted of offenses deemed to be larceny. See Code §§ 18.2-96 and 18.2-104. Appellant filed
a motion in limine to prevent the Commonwealth from prosecuting her under the enhanced
punishment provision of Code § 18.2-104 because, at the time of her offense, she had not been
twice convicted of a larceny offense. She also argued the enhanced penalty larceny statute was
unconstitutionally void for vagueness as applied to her. The trial court denied the motion.
Appellant entered a conditional guilty plea, and was sentenced to five years with four years and
nine months suspended. On appeal, appellant challenges the trial court’s pretrial rulings on her
motion in limine. Finding no error, we affirm the trial court’s decision.
BACKGROUND
The Commonwealth proffered evidence at the hearing on appellant’s conditional guilty
plea.
PUBLISHED

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On May 8, 2015, appellant and another female entered a Kohl’s department store in
Chesterfield County. They selected several items of clothing and took them off the hangers. The
two women took the clothing to the customer service department. The store’s policy was to
issue a store credit card in exchange for merchandise that is returned without presentation of a
receipt. Appellant and the other female “returned” the clothing, even though they had never paid
for it, and received a store credit card for the amount of $148.02. They left the store without
paying for anything. Appellant was stopped by a loss prevention officer. She admitted
“returning” items at Kohl’s without having paid for them.
By indictment on July 20, 2015, appellant was charged with committing larceny after
having been previously convicted of two or more larceny offenses. Appellant’s trial was on
October 27, 2015. The Commonwealth proved that appellant had a larceny conviction from
Henrico County in September 2008. Appellant also was convicted of larceny in Chesterfield
County on June 18, 2015. 1
ANALYSIS
I.
Code § 18.2-104 provides:
When a person is convicted of an offense of larceny or any
offense deemed to be or punished as larceny under any provision
of the Code, and it is alleged in the warrant, indictment or
information on which he is convicted, and admitted, or found by
the jury or judge before whom he is tried, that he has been before
convicted in the Commonwealth of Virginia or in another
jurisdiction for any offense of larceny or any offense deemed or
punishable as larceny, or of any substantially similar offense in any
other jurisdiction, regardless of whether the prior convictions were
misdemeanors, felonies or a combination thereof, he shall be
confined in jail not less than thirty days nor more than twelve
1 We note that the second page apparently was omitted from the copy of the June 18,
2015 conviction order that was admitted as Commonwealth’s Exhibit 2. However, there was no
dispute between the parties that the date of the conviction was June 18, 2015.

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months; and for a third, or any subsequent offense, he shall be
guilty of a Class 6 felony.
“Code § 18.2-104 is a recidivist statute that enhances the sentence of a person convicted of a
third larceny-type offense by converting a petit larceny offense from a misdemeanor to a class 6
felony.” Harris v. Commonwealth, 23 Va. App. 311, 313, 477 S.E.2d 3, 4 (1996), aff’d, 24
Va. App. 613, 484 S.E.2d 170 (1997) (en banc). “[T]he object of the allegation of prior
conviction is to put the accused on notice that record proof of a prior conviction will be
introduced, which, if it meets the requirement of the law, that is, proves a prior conviction, will
increase the penalty.” Charles v. Commonwealth, 63 Va. App. 289, 298-99, 756 S.E.2d 917, 922
(2014) (quoting Keeney v. Commonwealth, 147 Va. 678, 684-85, 137 S.E. 478, 480 (1927)).
Appellant contends that Code § 18.2-104 is a penal statute that should be strictly
construed against the Commonwealth to permit enhanced punishment only where the prior
larceny offenses were committed before the charged offense. However, “[t]he primary objective
of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v.
Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). In pursuit of this objective, “[c]ourts are
required to apply the plain language of a statute when possible and may not rewrite it.” Parker v.
Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007). Moreover, “[i]f a statute is not ambiguous
. . . ‘the rule of lenity is not applicable to guide statutory interpretation.’” Paduano v.
Commonwealth, 64 Va. App. 173, 182, 766 S.E.2d 745, 749 (2014) (quoting De’Armond v.
Commonwealth, 51 Va. App. 26, 34, 654 S.E.2d 317, 321 (2007)).
We find no ambiguity in Code § 18.2-104 to support appellant’s interpretation of the
statute. Code § 18.2-104 provides that upon proof of a prior “conviction,” not a prior “offense,”
a defendant may be subject to the enhanced penalty. “[W]e . . . presume that the legislature
chose, with care, the words it used when it enacted the relevant statute.” Seabolt v. Cty. of

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Albemarle, 283 Va. 717, 720, 724 S.E.2d 715, 717 (2012) (quoting Addison v. Jurgelsky, 281
Va. 205, 208, 704 S.E.2d 402, 404 (2011)).
Considering language contained in Code § 46.2-357(B)(3), the recidivist provision
applicable to multiple offenses of driving after being declared a habitual offender, the Supreme
Court of Virginia stated that “the General Assembly’s choice of the word ‘offense’ in
§ 46.2-357(B)(3), rather than the word ‘conviction,’ clearly demonstrates an intent to authorize
punishment enhancement without a prior conviction.” Thomas v. Commonwealth, 256 Va. 38,
41-42, 501 S.E.2d 391, 393 (1998). See also Jones v. Commonwealth, 21 Va. App. 435, 440,
464 S.E.2d 558, 560 (1995) (en banc) (affirming enhanced punishment for drug distribution and
finding “[Code § 18.2-248(C)] contains no provision that, in order for the enhanced penalty
provision to obtain, the defendant must have been convicted of the first offense before
committing the second offense”). The converse is true in the present case. The choice of the
word “conviction” rather than “offense” demonstrates the intent to authorize punishment
enhancement where the defendant has been convicted of the prior charge.
Appellant was indicted for the present offense under the recidivist statute on July 20,
2015, after her June 18, 2015 Chesterfield County larceny conviction. It was uncontroverted that
at the time of her October 27, 2015 conviction of the present offense, she had twice been
convicted of larceny. Accordingly, we find the trial court did not err in applying the plain terms
of the statute and in finding the enhanced penalty provision in Code § 18.2-104 was applicable.
II.
Appellant argues the trial court erred in refusing to find that Code § 18.2-104 was
unconstitutionally void for vagueness as applied to her. “A criminal statute is unconstitutionally
vague only if it fails to define the offense ‘with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary and

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discriminatory enforcement.’” Bell v. Commonwealth, 21 Va. App. 693, 700, 467 S.E.2d 289,
292 (1996) (quoting Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229, 234 (1991)).
As noted above, the meaning of Code § 18.2-104 is clear on its face, and the statute does not
require interpretation of ambiguity. A person of ordinary intelligence would understand that any
second or subsequent conviction of a larceny offense would make him or her eligible for the
enhanced punishment provision under Code § 18.2-104. We find no indication that the statute is
so broad as to render it susceptible to arbitrary enforcement. Accordingly, we find no error in
the trial court’s ruling that the statute was not unconstitutionally vague.
CONCLUSION
For the foregoing reasons, we affirm appellant’s conviction.
Affirmed.