People v. Goeddeke, Docket No. 109283

• Decision Date: 15 March 1989
• Docket Number: Docket No. 109283
• Citation: 436 N.W.2d 407,174 Mich.App. 534
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Aloysius GOEDDEKE, Defendant-Appellee. 174 Mich.App. 534, 436 N.W.2d 407
• Court: Court of Appeal of Michigan — District of US

Page 407

436 N.W.2d 407

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Aloysius GOEDDEKE, Defendant-Appellee.

Docket No. 109283.

174 Mich.App. 534, 436 N.W.2d 407

Court of Appeals of Michigan.

Submitted Oct. 18, 1988.

Decided Dec. 16, 1988.

Released for Publication March 15, 1989.

[174 MICHAPP 535] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, App. Div., and Daniel J. Garber, Jr., Asst. Pros. Atty., for the People.

O'Neill, Shannon & Mills, by John F. Mills, Bloomfield Hills, for defendant-appellee.

Before MICHAEL J. KELLY, P.J., and MacKENZIE and MILLER, ^* JJ.

PER CURIAM.

The people appeal from a circuit court order affirming a district court dismissal of the second count of a two-count complaint. The district judge found that the addition of the second count gave rise to a presumption of prosecutorial vindictiveness, and dismissed the charge as violating due process of law. We find no actual or presumed prosecutorial vindictiveness, and reverse.

In February of 1985, defendant was arrested in the City of Orchard Lake Village and charged with operating a motor vehicle while under the influence of liquor (OUIL) in violation of a city ordinance. Defendant's case was originally prosecuted by the Orchard Lake City Attorney. Although defendant had been previously convicted for operating a motor vehicle while impaired (OWI), the city attorney did not originally charge him with OWI or OWI-second offense. At the pretrial conference, defendant refused to plead guilty to OUIL and the city attorney refused to add a lesser charge, so [174 MICHAPP 536] the case was set for trial. Four days before the trial date, the city attorney filed a nolle prosequi dismissing the complaint against defendant. On that same day the Oakland County Prosecutor filed a two-count state complaint against defendant, charging him with OUIL, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325, and a second count of OWI-second offense, M.C.L. Sec. 257.625b; M.S.A. Sec. 9.2325(2).

Defendant moved to dismiss this new complaint on the grounds that recharging him with the additional count of OWI-second constituted prosecutorial vindictiveness in response to defendant's demand for a jury trial, and therefore violated due process of law. After a hearing, the district judge dismissed this count, holding that enhancing the charges against defendant after he refused to plead guilty, without giving him notice that the charges would be enhanced, gave rise to a presumption of prosecutorial vindictiveness. The people appealed this dismissal to the circuit court, which affirmed the district court's findings.

The people argue that the lower courts erred by presuming prosecutorial vindictiveness in violation of due process of law due to the addition of the OWI-second charge after defendant refused to plead guilty. We agree.

To punish a person for exercising a protected statutory or constitutional right violates due process of law. However, it is well established that the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is not sufficient to warrant presuming that subsequent changes in the charging decision are vindictive and therefore violative of due process. United States v. Goodwin, 457 U.S. 368, 383, 102 S.Ct. 2485 2493, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); People v. Watts, 149 Mich.App. 502, 508-511, 386 N.W.2d ...