Court of Appeals Reverses UAC 1st Conviction

Over-charging is a common tactic in plea negotiation. Some prosecutors choose to over-charge a person to establish a stronger bargaining position when discussing a possible plea with defense counsel. Sometimes, as in the case of Shirley v. Commonwealth, a prosecutor can go too far when they over-charge someone.

This case comes to us from Pulaski County Kentucky. Ms. Chasity Shirley was shopping in the Somerset Wal-Mart when she made the bad decision to shoplift some merchandise. She was accused of switching price stickers on merchandise.

The price stickers had bar codes. So, when she went to the self-scan machine, she scanned merchandise that had a bar code for a less expensive item on it. The total value of the merchandise she tried to “discount” was $80.80.

This is where the over-charging tactic comes in. Rather than just charge her with a misdemeanor shoplifting offense, the prosecutors charged her with “Unlawful Access to a Computer First-Degree” (UAC 1st). That offense is also known as the “computer hacking” charge and is punishable by 5-10 years of prison.

The defense attorney raised legal arguments to the Judge and objected to the over-charging that was taking place. The Judge allowed the prosecutors to proceed with the “computer” charge and Ms. Shirley was sentenced to 5 years in prison and became a convicted felon. However, her defense attorney filed a motion to hold off on imposing the sentence to allow her an opportunity to file an appeal.

Her case was appealed to the Kentucky Court of Appeals and that Court reversed Ms. Shirley’s conviction and sentence.

The Court of Appeals ruled that the theft did not rest upon the use of the computer but rather on the switching of the bar codes. Importantly, the court also stated that due to the prevalence of computers in all aspects of the modern world, where even lights are “smart” now, almost every theft carried out today likely involves a computer in some way and thus all thefts would fit the prosecutor’s interpretation and be punishable as class C felonies.

To sum up, the Court of Appeals reminded the trial court and prosecutors that “when all else is said and done, common sense must not be a stranger in the house of law.”

NOTE: The Commonwealth is currently appealing this matter to the Supreme Court of Kentucky. We’ll update you when the Supreme Court makes a decision in the case.

Source: Kentucky Court of Appeals No. 2020-CA-0373-MR