Sentencing for Shoplifting

Some crimes have their own sentencing regime—impaired driving, drug trafficking, and first-degree murder to name a few. There are also crimes that fall under Structured Sentencing but that also have additional punishment provisions built in. One such crime is concealment of merchandise in mercantile establishments, better known as shoplifting. Under G.S. 14-72.1(e), the punishment for shoplifting (and for transferring or using false price tags) is as follows.

For first-time shoplifters, the defendant is guilty of a Class 3 misdemeanor, and the term of imprisonment may only be suspended on condition that the defendant complete at least 24 hours of community service.

A second shoplifting offense committed within three years of the date of the first conviction is a Class 2 misdemeanor. The term of imprisonment may be suspended only on the condition that the defendant be imprisoned for a term of at least 72 hours as a condition of special probation, complete at least 72 hours of community service, or both. Oddly, the statute does not set out a mandatory minimum for a straight active sentence—the 72-hour minimum applies only to splits.

For a third or subsequent offense committed within five years the crime is a Class 1 misdemeanor and the term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve at least an 11-day split sentence. There is no community service alternative for third-time offenders. Again, the statute does not set out a mandatory minimum for active sentences.

Second and subsequent offenses that don’t fall within the applicable time window are sentenced the same as first offenses. If a defendant is unable, “by reason of mental or physical infirmity,” to perform community service, the court can make findings as to that inability and enter another sentence “as the judge finds appropriate.” G.S. 14-72.1(e).

Some aspects of the shoplifting law don’t exactly dovetail with Structured Sentencing. For example, the punishment provision for first-time shoplifters says the term of imprisonment may only be suspended on condition that the defendant complete 24 hours of community service. Should that be read to trump the regular misdemeanor sentencing grid for a Class 3 misdemeanor and allow an active sentence for Prior Conviction Level I and II offenders (who fall in “C” and C/I” cells, respectively)? I don’t think so. Under G.S. 15A-1340.23(c), the misdemeanor sentencing grid applies “unless otherwise provided for a specific offense.” Though the shoplifting statute “provides otherwise” regarding community service and special probation confinement periods, it does not set out a comprehensive, stand-alone sentencing regime. To the contrary, the shoplifting law (which was initially enacted in 1985, S.L. 1985-841) was expressly brought into the Structured Sentencing fold in 1994 when mandatory minimum active sentences were removed from G.S. 14-72.1(e) and offense classes were assigned in their place. S.L. 1993-539, s. 35.

Reading the G.S. 14-72.1 and Structured Sentencing together, it appears to me that a first-time (Class 3) shoplifter can only receive an active sentence if he or she is Prior Conviction Level III (and thus falls in a C/I/A grid cell). Additionally, in any case where the court imposes special probation pursuant to the shoplifting law, it should order an underlying term of imprisonment at least four times longer than the split so the sentence doesn’t run afoul of the one-fourth rule in G.S. 15A-1351(a). In fact, the minimum period of special probation confinement was reduced from 14 to 11 days in 1997 as part of a package of “technical, clarifying, and conforming amendments to Structured Sentencing.” S.L. 1997-80. That change fixed an inconsistency: you wouldn’t have been able to order a 14-day split without at least a 56-day suspended sentence, and 45 days is the maximum for Class 1, Level II offender.

It is an open question whether the prior shoplifting offenses used to elevate the offense class under G.S. 14-72.1 may also count for prior conviction points. By analogy to other recidivist punishment laws they should not count. In State v. Gentry, 135 N.C. App. 107 (1999), the court of appeals said—on account of “basic unfairness and constitutional restrictions”—that it was improper to count record points for the prior misdemeanor impaired driving convictions used to elevate a misdemeanor DWI to a felony habitual DWI. The same logic would seem to apply here, although it raises the possibility that G.S. 14-72.1 would direct special probation (an intermediate punishment) for a repeat shoplifter who might, based on the masked shoplifting convictions, still be Prior Conviction Level I—where community punishment is the only option on the grid.

In addition to all these special rules about how the court must sentence a shoplifter, G.S. 14-72.1(g) also sets out special rules for how the sentence is served. As with impaired driving, the court may not give credit to the defendant for the first 24 hours of time spent jailed pending trial. (I’ll confess that I’m a little fuzzy on the policy rationale behind that rule in the shoplifting context.) The law also says that the defendant “must serve the mandatory minimum period of imprisonment and good or gain time may not be used to reduce that mandatory minimum period,” but that provision doesn’t really have any effect in practice. First of all, non–impaired driving sentences no longer get good time or gain time, they get earned time (which you can read about here). Second, as discussed above, G.S. 14-72.1 no longer sets out mandatory minimums periods of imprisonment. It mentions only minimum periods of special probation confinement—and sentence reduction credits never apply to the active portion of a split. G.S. 148-13(f). Previously, the statute set out time frames in which any community service ordered as part of a shoplifting sentence had to be served, but they were repealed in 2009, effective for offenses committed on or after December 1, 2009. S.L. 2009-372.

Finally, note that the Administrative Office of the Courts has a special arrest warrant form for concealment of merchandise that includes a block for alleging any prior shoplifting convictions. Jeff Welty’s Arrest Warrant and Indictment Forms book also includes model charging language to be used when there are prior offenses.