A 43-Cent Dispute Over A Bottle Of Mountain Dew Could Put This Man In Prison For 7 Years

DUNCANNON, PA — A homeless Pennsylvania man could go to prison for up to seven years after police said he shortchanged a convenience store 43 cents for a bottle of Mountain Dew.

Joseph Sobolewski, 38, did the math in his head after seeing a sign at a Duncannon convenience store advertising two 20-ounce bottles of Mountain Dew for $3. That evened out nicely at $1.50 a bottle, or so he thought, and he plunked down $2 on the counter and walked out of the store, according to news reports.

The promotion wasn't an exact split. A single bottle of the soda pop cost $2.29. With tax included, Sobolewski had shorted the Exxon store 43 cents, according to the story first reported by PennLive.

The clerk followed Sobolewski out of the store, asked why he didn’t pay the full amount and then called police to press charges after Sobolewski refused to pony up more change and drove away. Pennsylvania State Police arrested Sobolewski on a felony charge under the state’s “three-strikes” retail theft law and locked him up in jail on a $50,000 cash-only bond, according to court records.

Sobolewski has a pair of non-violent theft offenses from about a decade ago: one filed after he drove away from a gas station without paying for his fuel, and the other filed in 2011 for stealing a $40 pair of sneakers — a crime for which he paid $866 in fines and court costs.

Criminal justice reform advocates say the deck is stacked against defendants like Sobolewski, who can barely scrape together enough change to buy a bottle of soda pop.

At the center of the problem, they say, is Pennsylvania’s “three strikes” law that doesn’t take into consideration the value of the items stolen. But they also raised questions about whether Sobolewski should have been charged in the first place, and about a system that allows judges to set impossibly high bonds for minor offenses.

Pennsylvania Board of Pardons Secretary Brandon J. Flood told The Washington Post the case against Sobolewski is “a complete and utter waste of resources.”

“This is literally a matter of cents, resulting in not only criminalizing an individual but costing taxpayers money to house him,” Flood told The Post. “We’re still grappling with a global pandemic and we have to be better fiscal stewards across the board, and this is the complete antithesis of that. We shouldn’t be seeing these kinds of cases.”

A spokeswoman for Pennsylvania State Police told The Post the felony charges against Sobolewski are automatic for anyone twice convicted of retail theft, regardless of the value of the theft.

“Troopers cannot decide to not charge someone for a criminal case, only victims of certain crimes can decline charges,” Trooper Megan Ammerman told The Post in a written statement. “If we are called to an incident involving a crime, we follow and enforce the PA Crimes Code.”

When the “three strikes” law was enacted in the 1990s, supporters hailed it as a deterrent. It treats the first conviction on the theft of items valued at $150 or less as a summary offense, much like a speeding ticket. The second offense is a misdemeanor, and third and subsequent offenses are felonies, regardless of the value of the items stolen.

“For me, I would get the deterrent factor if someone’s thefts were getting worse or higher in value,” Flood told PennLive. “But the lack of discretion is what bothers me. It’s problematic because it doesn’t factor in the amount.”

Prosecutors will have to prove Sobolewski didn’t misunderstand the terms of the two-for-$3 promotion and intentionally underpaid the store. Perry County District Attorney Andrew Bender did not immediately return Patch’s request for comment.

“There are smarter ways to handle things,” Flood told PennLive.

That depends on where the crime takes place.

Two months before the incident at the Exxon station, Sobolewski and his wife were arrested on a retail theft charged, accused of stealing craft items at a Hobby Lobby store in another county, PennLive reported.

It was considered a third offense and, therefore, a felony, but the judge set bond at $2,000 instead of $50,000, and Sobolewski applied for the state’s diversion program, an alternative to going to trial.

Nyssa Taylor, ACLU Philadelphia’s criminal justice policy lawyer, told PennLive that charging people in cases like this one is “punishment of poverty and substance use disorder.”

“The state prisons are bulging,” she said. “We don’t need to be jailing people over this.”

» Read more on PennLive.com