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Pitts v. Commonwealth

Court of Appeals of Virginia

November 8, 2016

CLAUDIA KATHLEEN PITTS
v.
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.

          Present: Judges Beales, Alston and Senior Judge Haley Argued at Richmond, Virginia

          OPINION

          JAMES W. HALEY, JR. JUDGE.

         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.

         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 ...

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