Leftridge v. United States, 79-591.

• Decision Date: 13 February 1980
• Docket Number: No. 79-591.,79-591.
• Citation: 410 A.2d 1388
• Parties: Birchard LEFTRIDGE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1388

410 A.2d 1388

Birchard LEFTRIDGE, Appellant, v. UNITED STATES, Appellee.

No. 79-591.

District of Columbia Court of Appeals.

Submitted January 9, 1980.

Decided February 13, 1980.

Ted Kavrukov, Washington, D.C., appointed by this court, was on the brief for appellant.

Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and John A. Terry, Michael W. Farrell, William D. Nussbaum, and Barry M. Tapp, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before KELLY, NEBEKER and FERREN, Associate Judges.

PER CURIAM:

The trial court sentenced Birchard Leftridge as a repeat offender following his conviction of attempted petit larceny because Leftridge had been convicted of petit larceny on two previous occasions. Leftridge contends that repeat offender sentencing was not warranted by the prior convictions because petit larceny is not an offense which "is the same as, constitutes, or necessarily includes" attempted petit larceny, as required by D.C.Code 1973, § 22-104. We disagree with that contention and thus affirm.

Leftridge was charged with attempted petit larceny, D.C.Code 1973, §§ 22-103, -2202, and convicted by a jury.¹ Before trial, the government had filed notice that it intended to proceed against him as a repeat offender pursuant to D.C.Code 1973, § 22-104, which provides in part:

(a) If any person —

(1) is convicted of a criminal offense . . . and

(2) was previously convicted of a criminal offense under any law of the United States or of a State or territory of the United States which offense, at the time of the conviction referred to in paragraph (1), is the same as, constitutes, or necessarily includes, the offense referred to in that paragraph, such person may be sentenced to pay a fine in `an amount not more than one and one-half times the maximum fine prescribed for the conviction referred to in paragraph (1) and sentenced to imprisonment for a term not more than one and one-half times the maximum term of imprisonment prescribed for that conviction. If such person was previously convicted more than once of an offense described in paragraph (2), he may be sentenced to pay a fine in an amount not more than three times the maximum fine prescribed for the conviction referred to in paragraph (1) and sentenced to imprisonment for a term not more than three times the maximum term of imprisonment prescribed for that conviction. [Emphasis added.] Leftridge filed a motion to strike the repeat papers on the ground that petit larceny is not an offense which "is the same as, constitutes, or necessarily includes" attempted petit larceny. After hearing argument by the government and defense counsel, the trial court denied the motion. The jury found Leftridge guilty of attempted petit larceny, and the court sentenced him to three years in prison, three times the maximum sentence prescribed for attempted petit larceny for first offenders. See D.C. Code 1973, § 22-103; note 1 supra. The sentence was suspended and Leftridge was placed on probation for two years.

In renewing on appeal his argument against enhancement of his sentence, Leftridge contends that we should apply lesser-included-offense analysis to determine whether petit larceny "constitutes or necessarily includes" attempted petit larceny. He relies on the following passage in United States v. Pearson, D.C.App., 202 A.2d 392 (1964):

Appellee also argues that if "attempted petit larceny" is a crime at all, it is a lesser included offense under § 22-2202 [the petit larceny provision]. This argument is unreasonable; for if all attempts were lesser included offenses, § 22-103 [the general attempts provision] would not be applicable to an attempt to complete any offense covered by Title 22 (where attempts were not otherwise covered). [Id. at 393.]

We do not agree that Pearson disposes of the problem here. Pearson had been charged by information with attempted petit larceny under D.C.Code 1973, § 22-103. He argued that § 22-103 provided more substantial penalties than could be imposed for petit larceny itself, and thus that § 22-103 could not be read to encompass a mere attempted petit larceny. He urged us to hold that if attempted petit larceny is a crime at all, it is instead a lesser included offense of petit larceny and punishable as such. This court, however, rejected that view (as quoted above) on the ground that it would render the general attempts provision superfluous.² In doing so, the court did not reach the question whether an "attempt" met the "lesser included offense" criteria.³ Thus, appellant Leftridge is incorrect in claiming we held in Pearson that attempted petit larceny is not a lesser included offense of petit larceny. We must face that question here for the first time.⁴

In Hawkins v. United States, D.C. App., 399 A.2d 1306 (1979), we summarized our approach to defining a lesser included offense:

This jurisdiction has adopted several substantively identical definitions for the term "lesser included offense." Use of the term signifies that "some of the elements of the crime charged themselves constitute a lesser crime," Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965), or that the lesser offense which was not charged "consist[s] entirely of some but not all of the elements of the greater offense" which was charged, Pendergrast v. United States, D.C.App., 332 A.2d 919, 924 (1975), or that a lesser offense "is necessarily established by the proof of the greater offense." Fuller v. United States, 132 U.S.App.D.C. 264, 293, 407 F.2d 1199, 1228 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). [Id. at 1307-08.]

In summary, "the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater." Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965).

These definitions do describe the relationship of attempted petit larceny and petit larceny itself. Proof of petit larceny requires establishing that a defendant, with felonious intent, took and carried property of a value of less than $100. See D.C.Code 1973, § 22-2202; Durphy v. United States, D.C.App., 235 A.2d 326, 327 (1967). An attempted petit larceny is established by the same elements, except that the defendant failed to complete the offense. See Marganella v. United States, D.C.App., 268 A.2d 803, 804 (1970) (attempted false pretenses); United States v. Fleming, D.C. App., 215 A.2d 839, 840-41 (1966) (attempted sodomy). In this case, the jury necessarily found that Leftridge intended to remove a tire, hub cap, and lug nuts from a car not belonging to him, although he (and an associate) had not completely removed the tire. Thus, a petit larceny had been established except for completion of the elements of taking and carrying. Attempted petit larceny, on the evidence in this case, consisted of proof of some but not all of the elements necessary to establish petit larceny.⁵ We therefore conclude that, under these circumstances an attempted petit larceny is "necessarily include[d]" with petit larceny for purposes of counting previous offenses toward repeat offender sentencing under D.C.Code 1973, § 22-104.

This conclusion is reinforced by acknowledging the purposes of the repeat offender statute. The statute was intended to give the sentencing judge discretion to impose progressively longer sentences for individuals who persist in a course of criminal activity. See Smith v. United States, D.C.App., 304 A.2d 28, 32, cert. denied, 414 US....