CAV: Attempt is “punished as larceny,” qualifying for enhancement

Attempted petit larceny qualifies as a felony recidivist “third or subsequent offense” under Code § 18.2-104, meriting an enhancement sentence.

Background

At trial, the Commonwealth presented evidence that Appellant Fred Coleman was attempting to steal a bicycle when the victim confronted him and prevented the theft. Coleman was charged with petit larceny as a third or subsequent offense, a felony under Code § 18.2-104.

The Commonwealth showed that Coleman previously pleaded guilty to various counts of statutory burglary, grand larceny, larceny with intent to sell, and obtaining money by false pretenses. Although he was charged with the completed larceny offense, the circuit court ultimately convicted him of attempted petit larceny, third or subsequent offense.

The sole issue on appeal is whether an attempted petit larceny conviction qualifies as a felony recidivist “third or subsequent offense” under Code § 18.2-104.

Attempt offense

Because Coleman’s conviction for attempted petit larceny as a third or subsequent offense qualifies as an offense “published as larceny” subject to enhancement under Code § 18.2-104, the circuit court did not err in finding him guilty of the felony.

Code § 18.2-104 provides that a third conviction for a larceny offense is a Class 6 felony if the defendant has two or more previous larceny convictions. Similar to Pitts v. Commonwealth, 58 Va. App. 741 (2011), where this court held that attempted petit larceny may be a predicate prior conviction under the felony recidivist statute, an attempted petit larceny can also serve as the third or subsequent offense subject to the statutory penalty enhancement. Just as the phrase “punishable as larceny” encompasses attempted petit larceny, the phrase “punished as larceny” also encompasses attempted petit larceny. This interpretation flows from Code
§ 18.2-27, which imposes the same punishment for attempted and completed petit larceny. There is no material difference as to whether attempted petit larceny is “punished” or “punishable” as larceny.

Moreover, no reasoned distinction can be drawn between using an attempted petit larceny conviction as a predicate offense, as in Pitts, and allowing it to serve as the third or subsequent offense subject to punishment enhancement. Construing § 18.2-104 to allow an attempted larceny conviction to serve as a predicate offense but not as an offense subject to enhanced sentencing would undermine the legislative intent of this “recidivist statute” to curb repeat larceny offenses.

Affirmed.

Coleman v. Commonwealth, Record No. 0650-17-1, Aug. 7, 2018. CAV (O’Brien), from Va. Beach Cir. Ct. (Hanson). Roger A. Whitus for Appellant; Rachel L. Yates for Appellee. VLW No. 018-7-206, 6 pp.