People v. McCracken

• Decision Date: 06 April 1983
• Docket Number: 65634,Docket Nos. 65376
• Citation: 124 Mich.App. 711,335 N.W.2d 131
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry McCRACKEN, Defendant-Appellant. The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Laura Ann McBRIDE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 131

335 N.W.2d 131

124 Mich.App. 711

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry McCRACKEN, Defendant-Appellant.

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Laura Ann McBRIDE, Defendant-Appellant.

Docket Nos. 65376, 65634.

Court of Appeals of Michigan.

Submitted Jan. 6, 1983.

Decided April 6, 1983.

Released for Publication April 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul F. Berger, Pros. Atty., and C. Sherman Mowbray, Asst. Pros. Atty., for the people.

State Appellate Defender by Sheila N. Robertson, Detroit, for defendants-appellants.

Before ALLEN, P.J., and BRONSON and WAHLS, JJ.

PER CURIAM.

In each of two cases, consolidated for purposes of appellate review, defendants challenge the prosecutor's authority to charge persons who have committed larceny of goods less than $100 in value (shoplifting), a misdemeanor, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588, with larceny in a building, a felony, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. The question raised is now pending before the Supreme Court on leave granted in People v. Gonzales and People v. Howard, 409 Mich. 945 (1980). ¹

Terry McCracken was charged with larceny in a building for stealing a distributor cap and ten voltage regulators from a K Mart store in Eaton County. On March 11, 1982, he pled guilty to a reduced charge of attempted larceny in a building. The plea was entered as part of an agreement that if defendant pled guilty to the reduced charge, the original charge would be dismissed and the prosecution would recommend that defendant not be incarcerated longer than the time he had already served since his arrest. On April 1, 1982, defendant was sentenced to two years probation, the first six months to be served in the Eaton County jail.

Laura Ann McBride was charged with larceny in a building for stealing one pair of Gloria Vanderbilt jeans from a Meijer Thrifty Acres store in Eaton County. On May 6, 1982, in exchange for an agreement that the prosecution would not charge her as an habitual offender, she pled guilty to the charged offense. On May 20, 1982, she was sentenced to one and one-half to four years in prison.

In virtually identical briefs, ² defendants argue that it is always an abuse of discretion, policy or not, to charge larceny in a building for simple shoplifting, and in support of this stance direct attention to Judge Brennan's dissenting opinion in People v. Ditto, 110 Mich.App. 654, 658, 313 N.W.2d 177 (1981):

"It was not the intent of the Legislature to have the statute prohibiting larceny in a building applied in a shoplifting case. Petty shoplifting, no matter how frequently performed, does not amount to a felony. The penalties for shoplifting, as prescribed by the Legislature, are deemed to be sufficient deterrence and punishment. It is an abuse of prosecutorial discretion to elevate a 90-day misdemeanor into a four-year felony. Hopefully, the Supreme Court will soon speak to this issue."

The prosecution argues that it is never an abuse of discretion to charge the violation under the more harsh of the two statutes and in support thereof liberally refers to the language in Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683-684, 194 N.W.2d 693 (1972):

" 'Acting as prosecutor, judge and jury' is a common description of an unfair and unlawful operation. However innocently and mistakenly, this is what happened in this case. The trial judge assumed the right over the objection of the prosecutor to determine under which of two applicable statutes a prosecution will be instituted. As already indicated such determination is an executive function and a part of the duties of the prosecutor. For the judiciary to claim power to control the institution and conduct of prosecutions would be an intrusion on the power of the executive branch of government and a violation of the constitutional separation of powers. Const 1963, art 3, Sec. 2. It also violates our fundamental sense of fair play."

According to the prosecution, it is not the function of the judiciary to substitute its judgment for that of the Legislature which has enacted two statutes covering the same offense, nor to usurp control from the prosecutor concerning under which statute a suit should be instituted and prosecuted. See In re Manufacturer's Freight Forwarding Co., 294 Mich. 57, 64-65, 292 N.W. 678 (1940).

The overwhelming weight of authority is that, absent a showing of intentional and purposeful discriminatory prosecution, not shown in the instant case, it is not an abuse of prosecutorial discretion to charge the offense committed as a four-year felony rather than a 90-day misdemeanor. People v. Evans, 94 Mich.App. 4, 287 N.W.2d 608 (1979); People v. Hart, 98 Mich.App. 273, 296 N.W.2d 235 (1980); People v. Holmes, 98 Mich.App. 369, 295 N.W.2d 887 (1980); Ditto, supra; People v. Freeland, 101 Mich.App. 501, 300 N.W.2d 616 (1980); People v. Bolton, 112 Mich.App. 626, 317 N.W.2d 199 (1981); People v. Frost, 120 Mich.App. 328, 328 N.W.2d 44 (1982). Only the dissenting opinions of Judge Brennan in Hart and Ditto, supra, and some of the language in People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d 667 (1978) ³ support the position taken by defense counsel.

At oral argument on appeal, the people conceded that prosecutorial abuse might occur if a person having no prior convictions or criminal record were to be charged under the felony statute for taking toothpaste or an article of low value from a store. However, neither defendant in the instant case fits this description. The transcript discloses that defendant McCracken had repeated prior convictions for larceny, obtaining money under false pretenses, and passing checks without sufficient funds....