People v. Ryan

• Decision Date: 29 May 1968
• Docket Number: No. 3,Docket No. 4508,3
• Citation: 11 Mich.App. 559,161 N.W.2d 754
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Joseph RYAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 754

161 N.W.2d 754

11 Mich.App. 559

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Joseph RYAN, Defendant-Appellant.

Docket No. 4508.

Court of Appeals of Michigan, Division No. 3.

May 29, 1968.

Released for Publication Oct. 24, 1968.

Robert L. Douglas, St. Louis, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Jack T. Arnold, Pros. Atty., Gratiot County, Ithaca, for appellee.

Before BURNS, P.J., and QUINN and ZIEM, ^* JJ.

BURNS, Presiding Judge.

The defendant pleaded guilty to the offense of unlawfully driving away an automobile. C.L.1948, § 750.413 (Stat.Ann.1954 Rev. § 28.645). Subsequent to sentence the court appointed counsel for postconviction proceedings. The court thereafter denied a motion to withdraw defendant's plea of guilty and to grant a new trial.

Defendant's claim of appeal is based upon an argument that C.L.1948, § 750.413 (Stat.Ann.1954 Rev. § 28.645) ¹ and C.L.1948, § 750.414 (Stat.Ann.1954 Rev. § 28.646) ² cover the same identical crimes but prescribe substantially different penalties. This asserted difference in punishment for the same act allegedly:

1. is an unconstitutional delegation of judicial authority to a nonjudicial officer (the prosecutor);

2. is an unreasonable classification which results in the arbitrary and capricious selection of penalty contrary to the Michigan constitution and the United States constitution;

3. means that the enactment of C.L.1948, § 750.414 (Stat.Ann.1954 Rev. § 28.646) repealed the crime to which defendant pleaded guilty, and

4. should have resulted in the rejection of defendant's plea of guilty because the facts admitted by the defendant were consistent with the offense which provided a lesser penalty and because the court failed to advise the defendant of this related offense.

The distinction between the two crimes involved in this case has been established in People v. Smith (1921), 213 Mich. 351, 182 N.W. 64, and People v. Stanley (1957), 349 Mich. 362, 84 N.W.2d 787. In those cases the Supreme Court observed that many times a person may lawfully come into possession of an automobile but use it unlawfully. The distinction thus indicated denotes a lack of merit in defendant's main premise for appeal and the constitutional objections based thereon.

Since there is a distinction between the aforementioned statutes, it follows that the prosecutor had a right to use discretion in determining under which of applicable statutes a prosecution shall be instituted. People v. Mire (1912), 173 Mich. 357, 138 N.W. 1066; People v. Thrine (1922), 218 Mich. 687, 188 N.W. 405; and People v. Lombardo (1942), 301 Mich. 451, 3 N.W.2d 839. We find nothing in the record which suggests an abuse of discretion by the prosecutor.

A review of the transcript reveals that the facts related by defendant to the trial judge were sufficient for the court to accept the plea of guilty.

Affirmed.

* FREDERICK C. ZIEM, Circuit Judge for the County of Oakland, appointed by the Supreme Court for the hearing month of April, 1968, pursuant to § 306 P.A.1964, No. 281.

1 'Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state...