People v. Grable

• Decision Date: 22 January 1980
• Docket Number: Docket No. 78-2023
• Citation: 95 Mich.App. 20,289 N.W.2d 871
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vanessa GRABLE, Defendant-Appellant. 95 Mich.App. 20, 289 N.W.2d 871
• Court: Court of Appeal of Michigan — District of US

Page 871

289 N.W.2d 871

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vanessa GRABLE, Defendant-Appellant.

Docket No. 78-2023.

95 Mich.App. 20, 289 N.W.2d 871

Court of Appeals of Michigan.

Jan. 22, 1980.

Released for Publication April 4, 1980.

Richard L. Roble, Adrian, for defendant-appellant.

[95 MICHAPP 22] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., Thomas C. Nelson, Pros. Attys. Appellate Serv., for plaintiff-appellee.

Before T. M. BURNS, P. J., and CYNAR and BACH, ^* JJ.

CYNAR, Judge.

Pursuant to a plea bargain, defendant pled guilty to forgery, M.C.L. § 750.248; M.S.A. § 28.445, and to uttering and publishing a forged instrument, M.C.L. § 750.249; M.S.A. § 28.446. In exchange for her plea, similar pending charges were dismissed, [95 MICHAPP 23] and the prosecution agreed to forbear from charging defendant as an habitual offender. Defendant was sentenced to concurrent terms of from 21/2 to 14 years imprisonment and now appeals as of right.

The sole issue presented in this appeal is whether, on the facts of this case, the two plea-based convictions and sentences imposed constitute multiple convictions and double punishment for the same offense, in violation of the double jeopardy clause of both the United States and Michigan Constitutions. ¹

I

As a threshold matter, we note that defendant's guilty plea does not constitute a waiver of the constitutional defect urged in this appeal, as it is a defect irrelevant to defendant's factual guilt of the crimes charged, and is properly characterized as one which would preclude the government from convicting defendant of both offenses, even assuming it could prove its case. People v. Riley, 88 Mich.App. 727, 730, 279 N.W.2d 303 (1979).

So too, we note that the fact that the sentences imposed are to be served concurrently does not obviate the potential infirmity of the convictions, as the concept of double punishment applies to the convictions as well as to the sentences. If both convictions are allowed to stand, several collateral consequences could impact upon defendant, including parole considerations, impeachment at subsequent trials, and habitual offender treatment. People v. Stewart (On Rehearing ), 400 Mich. 540, 549-550, 256 N.W.2d 31 (1977); People v. Martin, 398 Mich. 303, 310-311, 247 N.W.2d 303 (1976).

[95 MICHAPP 24]

II

The elements of the crime of forgery are: (1) an act which results in the false making or alteration of an instrument (which makes an instrument appear to be what it is not); and (2) a concurrent intent to defraud or injure. The key is that the writing itself is a lie. People v. Susalla, 392 Mich. 387, 392-393, 220 N.W.2d 405 (1974).

The elements of the crime of uttering and publishing a forged instrument are: (1) knowledge on the part of the accused that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment. People v. Fudge, 66 Mich.App. 625, 631, 239 N.W.2d 686 (1976); People v. Kimble, 60 Mich.App. 690, 694, 233 N.W.2d 26 (1975).

III

We must first apply the Blockburger test ² to the crimes in order to pass upon the claimed double jeopardy defect. The focus under this test is upon the statutory elements of the offenses in issue. The question is whether "each provision requires proof of a fact which the other does not". Blockburger, supra, 304, 52 S.Ct. 182; Wayne County Prosecutor v. Recorder's Court Judge (People v. Brintley), 406 Mich. 374, 395-397, 280 N.W.2d 793 (1979), app. dis. sub. nom. Brintley v. Michigan, --- U.S. ----, 100 S.Ct. 418, 62 L.Ed.2d 317 (1979). We have no trouble concluding that the instant convictions surmount this hurdle. Although there is "a substantial overlap in the proof offered to establish the crimes", Id., 406 Mich. 397, 280 N.W.2d 799, the violation of each provision, as opposed to the evidence offered to prove the same, is distinctly different[95 MICHAPP 25] under each of the respective statutes. Id., 397, 280 N.W.2d 793. Therefore, legally the two crimes of which defendant was convicted are not the "make offense".

IV

Next, our analysis takes us into the amorphous area of "factual" double jeopardy. As an abstract proposition, a defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find defendant guilty of one crime in order to convict him of the other. People v. Martin, supra, 398 Mich. 307, 247 N.W.2d 303; People v. Stewart, supra, 400 Mich. 548-549, 256 N.W.2d 31; People v. Alexander, 82 Mich.App. 621, 624, 267 N.W.2d 466 (1978).

In Wayne County Prosecutor, supra, the Court reexamined Stewart and Martin, and while not specifically overruling or disapproving of their holdings, concluded that the nub of those cases was that where the Legislature had failed to clearly authorize multiple convictions and cumulative punishments based on one factual occurrence, two convictions and their attendant punishments cannot stand. Wayne County Prosecutor, supra, 406 Mich. 399-402, 208 N.W.2d 793.

No such legislative intent rationale is apparent in the case at bar which would support the dual convictions of defendant. In any event, the type of factual double jeopardy defendant complains of does not appear to be addressed in Wayne County Prosecutor, as it does not rest upon the factual parameters spoken to in that case.

What defendant does argue is that the conviction for forgery was the sine qua non for the conviction for uttering and publishing, i. e., defendant could not have been convicted of the latter without being found guilty of the former, on the [95 MICHAPP 26] facts as developed at her plea-taking proceeding. She contends that the entire chain of events involving both her forging of an instrument and her presenting of the same for payment constituted a single criminal transaction, a unitary episode.

This is a slightly different concept of a "same transaction" or "one occurrence" than that considered in Wayne County Prosecutor. There, the two crimes of which the defendant was convicted, and which were claimed to be violative of the double jeopardy clauses of the U.S. and Michigan Constitutions, occurred virtually, if not actually, simultaneously. In this case, the events which transpired are said to constitute but subparts of a single transaction, although not compressed into such a short time frame. On the facts as admitted by defendant at her arraignment,...