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A homeless man was arrested for a 43-cent ‘theft’ of a Mountain Dew. He could face 7 years in prison.

(Nasir Kachroo/NurPhoto/Getty Images)

Joseph Sobolewski looked at the sign posted at the Pennsylvania gas station and figured he had enough money to buy a Mountain Dew. The deal for 20-ounce bottles at the Exxon station read as two for $3, so the homeless man slapped $2 on the counter last month for a single drink and left to “do the Dew.”

But Sobolewski, 38, had miscalculated the price of a single Mountain Dew and wound up underpaying the store for the soft drink by 43 cents. The gas station in Duncannon called the State Police over the theft, and the man was later arrested on a felony charge under the state’s “three strikes” law for retail theft, according to court records.

Now, Sobolewski, who has two nonviolent theft convictions from many years earlier, is being held on a $50,000 bond. He faces up to seven years in prison.

The story was first reported by PennLive.

Barbara L. Wevodau, who is listed in court records as Sobolewski’s public defender, did not immediately respond to a request for comment Tuesday. Efforts to reach Sobolewski and his family were unsuccessful.

Trooper Megan Ammerman, a spokeswoman for the Pennsylvania State Police, told The Washington Post that for someone previously convicted of retail theft two times, an additional offense is automatically a felony, regardless of the dollar amount. She emphasized that authorities were following the state law.

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

Perry County District Attorney Andrew Bender (R), whose office is prosecuting the case, according to court records, was unavailable for an interview or comment Tuesday, an official told The Washington Post.

A clerk with the Exxon station in Duncannon, 15 miles outside Harrisburg, declined to comment Tuesday. It remains unclear as to why the gas station pressed charges against Sobolewski over less than 50 cents.

“We have no further comment to add,” an employee told The Post before hanging up the phone.

The charge was denounced by Brandon J. Flood, secretary of the Pennsylvania Board of Pardons, who called the situation “a complete and utter waste of resources.” He joined critics who have pointed out how the state law does not offer discretion to the value of the item in the third arrest.

“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.”

News of the arrest comes shortly after a woman completed a 27-year prison sentence under California’s three-strikes law for stealing a VCR. Michele Thiesen was convicted of breaking into a home through a kitchen window in 1994 and stealing a VCR. Thiesen, whose criminal history included petty theft, drug charges, prostitution and another burglary arrest, was sentenced to 40 years to life.

She was just released after 27 years in prison. Her crime: Stealing a VCR

Enacted in the mid-1990s, the first charge of retail theft under Pennsylvania’s three-strikes law — which notes that the value of the items stolen is less than $150 — is graded as a summary offense, comparable to a speeding ticket, according to PennLive. The second offense is considered a misdemeanor.

But for the third and subsequent offenses, those incidents, regardless of the value of the theft, are marked as third-degree felonies, which is the same charge for items valued at more than $1,000. Involuntary manslaughter, institutional sexual assault and carrying a firearm without a license are also considered third-degree felonies in Pennsylvania.

Sobolewski drove off without paying for a tank of gasoline more than a decade ago, court records show. He was arrested in December 2011 after stealing a pair of shoes at Kmart that cost $39.99. He was sentenced to three months in jail for violating his probation and paid $866 in fines and fees stemming from the 2011 offense.

When Sobolewski paid for the Mountain Dew on Aug. 23, he believed a single bottle of the soft drink was $1.50 after seeing the deal for two for $3, records show. But one bottle of the soda cost $2.29, plus tax — bringing his total to $2.43. Police soon tracked him down and arrested him.

He faces three and a half to seven years in prison for the third theft offense, records show.

Magisterial District Judge Jacqueline Leister, who set Sobolewski’s $50,000 bond, told PennLive that he owed child support and $1,500 in fines from a previous marijuana arrest but was not wanted on any other charges. She claimed that a trooper said Sobolewski was “hiding” from police, but the allegation is not documented in police or court records.

Leister did not immediately respond to a request for comment Tuesday.

The bond was initially set as cash-only before it was changed on Aug. 30 to “unsecured,” meaning Sobolewski could be released without putting up any money. His bond remains at $50,000.

Sobolewski’s next court appearance is scheduled for November, a court docket shows.

Critics of the statute, such as state Rep. Dan Miller (D), told PennLive that their attempts to introduce bills to amend the law have been ignored. Flood told The Post that the Board of Pardons generally sees people who are at least 10 years removed from their last offense and asking to be pardoned of their convictions. While it is unclear whether Sobolewski considered applying for a pardon just shy of the 10-year mark of his previous offense, Flood said the man’s history is similar to that of people he sees who have committed “not as severe or egregious crimes.”

He said he is hopeful that Sobolewski’s arrest over a Mountain Dew theft can be a “flagship case” that eventually leads to changes in the three-strikes law.

“This law is crafted because it’s meant to serve as a deterrent, and I don’t think it has served its purpose,” Flood said. “This is low-hanging fruit.”

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She was just released after 27 years in prison. Her crime: Stealing a VCR