People v. Johnson

• Decision Date: 17 October 1994
• Docket Number: Docket No. 167568
• Citation: 207 Mich.App. 263,523 N.W.2d 655
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Chester JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 655

523 N.W.2d 655

207 Mich.App. 263

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Chester JOHNSON, Defendant-Appellant.

Docket No. 167568.

Court of Appeals of Michigan.

Submitted Aug. 2, 1994, at Lansing.

Decided Oct. 17, 1994, at 9:05 a.m.

Released for Publication Dec. 2, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Michael R. Smith, Pros. Atty., and Carole F. Barnett, Asst. Atty. Gen., for the People.

William Metros, Lansing, for defendant on appeal.

Before MICHAEL J. KELLY, P.J., and CAVANAGH and SHAMO, ^* JJ.

PER CURIAM.

In exchange for the dismissal of charges of conspiracy to commit larceny over $100 and of being a fourth-offense habitual offender, defendant pleaded guilty of larceny over $100, M.C.L. § 750.356; M.S.A. § 28.588, and of being a third-offense habitual offender, M.C.L. § 769.11; M.S.A. 28.1083. In a separate lower court file, also pursuant to a plea agreement, defendant pleaded guilty of absconding while on bond, M.C.L. § 750.199a; M.S.A. § 28.396(1), and of being a third-offense habitual offender. Defendant was sentenced to consecutive prison terms of three to ten years for the larceny and two years and eight months to eight years for absconding while on bond. Defendant appeals as of right. We affirm in part and reverse in part.

On appeal, defendant contends that his conviction of larceny should be reversed because it was error to prosecute him for larceny where the factual basis for the plea indicated that he had committed first-degree retail fraud. We agree.

First, we note that defendant apparently has not moved in the trial court to withdraw the plea pursuant to MCR 6.311(C). Nonetheless, because this appeal involves a jurisdictional issue that requires no further development of the record, and in the interest of justice, we will review the issue raised. See People v. New, 427 Mich. 482, 398 N.W.2d 358 (1986).

A plea of guilty waives all defenses and rights that relate solely to the capacity of the state to prove the defendant's factual guilt. Id. at 491, 398 N.W.2d 358. However, defenses and rights raised on appeal that would preclude the state from obtaining a valid conviction against the defendant, i.e., that implicate the very authority of the state to bring a defendant to trial, are not waived by a guilty plea. Id. Such a defense may be established where a defendant is charged under the wrong statute. Id. at 492, 398 N.W.2d 358; People v. Kotesky, 190 Mich.App. 330, 331, 475 N.W.2d 473 (1991).

The statute governing first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3), explicitly supersedes the larceny statute where the elements of retail fraud are established. The statute provides:

(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first degree, a felony punishable by imprisonment for not more than 2 years, or a fine of not more than $1,000.00, or both:

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(b) While a store is open to the public, steals property of the store that is offered for sale at a price of more than $100.00.

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(3) A person who commits the crime of retail fraud in the first degree shall not be prosecuted under the felony provision of section 356 [M.C.L. § 750.356; M.S.A. § 28.588], or under section 218 or 360. [Emphasis added.]

Under the statute, the prosecutor was without discretion to charge defendant with larceny over $100 where defendant appeared to have committed first-degree retail fraud. See People v. Odendahl, 200 Mich.App. 539, 542, 505 N.W.2d 16 (1993); see also People v. Vannoy, 106 Mich.App....