People v. Stevens, Docket No. 67460

Decision Date20 January 1984
Docket NumberDocket No. 67460
Citation343 N.W.2d 219,130 Mich.App. 1
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Eugene STEVENS, Defendant-Appellant. 130 Mich.App. 1, 343 N.W.2d 219
CourtCourt of Appeal of Michigan — District of US

[130 MICHAPP 2] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Chari Grove, Detroit, for defendant-appellant on appeal.

Before BEASLEY, P.J., and ALLEN and DENEWETH, * JJ.

[130 MICHAPP 3] ALLEN, Judge.

This appeal concerns defendant's pleas of guilty to two separate offenses occurring on different dates and under different circumstances. Lower court case # 1119 concerns an incident occurring April 2, 1982. Lower court case # 1111 concerns an incident taking place March 16, 1982. Because the facts and issues are different, we discuss the cases separately.

Case # 1111

On April 8, 1982, a complaint and warrant were issued charging defendant with breaking and entering an unoccupied residence with intent to commit larceny on March 16, 1982. At the preliminary examination on April 20, 1982, an amended complaint was filed adding a second count of larceny over $100. Proofs taken at the preliminary examination disclosed that when the owner of the residence returned home March 17, 1982, he found the front door open, papers scattered about and items in various drawers strewn around. Missing were a stereo, dishes and other items with an estimated value of around $2,500. At the conclusion of the preliminary examination defendant was bound over on both counts. Defendant did not object to being bound over on both charges, except to assert there was insufficient evidence to bind him over on count one.

On July 2, 1982, defendant pled guilty as charged on both counts. He also admitted having seven previous felony convictions as set forth in a supplemental information filed by the prosecution. No plea bargain was involved in the case and on August 23, 1982, defendant was sentenced to concurrent sentences of 15 to 50 years on both counts.

Defendant first argues that he was "overcharged" when he was charged with both breaking [130 MICHAPP 4] and entering an unoccupied dwelling with intent to commit larceny (count one) and larceny over $100 (count two). For several reasons, we are not persuaded. First, the objection comes far too late. No objection was made when count two was added or when defendant was bound over to circuit court. Nor was an "overcharge" objection made when defendant pled guilty or later when defendant was sentenced. Second, the defect, if any, is nonjurisdictional in nature and, as such, is waived by a plea of guilty.

A more difficult question is presented by defendant's claim that conviction for both offenses is precluded on grounds of double jeopardy. A claim of double jeopardy, at least as it pertains to whether a trial should have taken place at all, unlike an "overcharging" claim, is not waived by a subsequent guilty plea. People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976). In People v. West, 122 Mich.App. 517, 332 N.W.2d 517 (1983), a separate panel of this Court (which included one member of the instant panel), held that under Michigan law a plea of guilty to both breaking and entering with intent to commit larceny and larceny violates the protection against double jeopardy when the completed larceny alone is used to support the conclusion that when the building was broken into a larceny was intended.

"Under Michigan's factual test, the convictions in the instant case of breaking and entering a store with the intent to commit a larceny and larceny in a store violate the protection against double jeopardy. A presumption of intent to commit a larceny does not arise solely from proof of a breaking and entering. People v. Palmer, 42 Mich App 549, 552; 202 NW2d 536 (1972). Rather, there must be some circumstance reasonably leading to the conclusion that a larceny was intended. Palmer, supra, p 552 . When larceny in a store is [130 MICHAPP 5] charged along with breaking and entering a store with the intent to commit a larceny, it is the completed larceny that is being used as the 'some circumstance reasonably leading to the conclusion that a larceny was intended'. The only factual evidence that defendant intended to commit a larceny when he broke and entered is his completed larceny. As such, the two convictions are based on proof of a single act. Under Michigan law, such proof cannot sustain double convictions. See [People v. Jankowski, 408 Mich. 79, 86, 289 N.W.2d 674 (1980) ]." (Emphasis supplied.) 122 Mich.App. 521-522, 332 N.W.2d 517.

Defendant argues that the analysis used in West is equally applicable to the case at bar and that West controls. The prosecution contends that West was wrongly decided or is at least distinguishable. We find West distinguishable. While the instant case and West each involved guilty pleas to the same offenses, in West "the only factual evidence that defendant intended to commit larceny when he broke and entered [was] his completed larceny", whereas, in the instant case, intent to commit larceny is established by the numerous papers strewn about the house and the various drawers rummaged through. Thus, there was ample proof of intent quite apart from the subsequent taking of a stereo and other articles. In the instant case, proof of the intent to commit larceny involved no proof of taking whatsoever. 1 Even though breaking and entering and a subsequent larceny are now recognized as cognate lesser included offenses, the [130 MICHAPP 6] fact that in the instant case there is "some circumstance (other than the subsequent larceny) reasonably leading to the conclusion that larceny was intended", precludes a finding of double jeopardy.

Finally, defendant submits that his sentence of 15 to 50 years in prison is excessive in light of the non-violent nature of the offenses involved and the light sentence of 20 to 30 months given the codefendant. Defendant asks that we hold a decision in abeyance pending the Supreme Court's resolution in three cases involving appellate sentencing review. 2 Given the litany of prior offenses committed by defendant, we do not consider the sentence excessive. Further, until the Supreme Court changes the long-established rule on sentence review, the sheer number of cases which would potentially be withheld precludes us from withholding a decision.

Case # 1119

On April 6, 1982, a complaint and warrant were issued charging defendant with receiving and concealing stolen property over $100, contrary to M.C.L. Sec. 750.535; M.S.A. Sec. 28.803, in an incident occurring April 2, 1982. At the start of the preliminary examination held April 29, 1982, an amended complaint was filed alleging in the alternative that defendant committed the offense of larceny. A supplemental information was also filed charging defendant with seven prior offenses. The prior offenses so listed were the identical prior offenses listed in the supplemental information filed in case # 1111. April 29, 1982, defendant waived preliminary examination on the...

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8 cases
  • People v. Wise
    • United States
    • Court of Appeal of Michigan — District of US
    • July 12, 1984
    ...People v. Wakeford, 418 Mich. 95, 341 N.W.2d 68 (1983); People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980).4 People v. Stevens, 130 Mich.App. 1, 343 N.W.2d 219 (1983), avoided the double jeopardy issue by finding sufficient evidence of the intent to commit the larceny independent of t......
  • People v. Bulger
    • United States
    • Michigan Supreme Court
    • July 18, 2000
    ...Wanty, 189 Mich.App. 291, 471 N.W.2d 922 (1991) (waived). The same is true for claims of abusive charging. Compare People v. Stevens, 130 Mich.App. 1, 343 N.W.2d 219 (1983) (waived), with People v. Vannoy, 106 Mich.App. 404, 308 N.W.2d 233 (1981) (not 45. Unpublished opinion per curiam, iss......
  • People v. Seabrooks
    • United States
    • Court of Appeal of Michigan — District of US
    • September 19, 1984
    ...inferred from circumstances other than the robbery. E.g., the nighttime entry, the broken window and tire iron; see People v. Stevens, 130 Mich.App. 1, 343 N.W.2d 219 (1983). ...
  • Garrett v. Brewer, Civil No. 2:17-CV-13507
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 27, 2018
    ...426-27 (6th Cir. 2010). Petitioner's claim that she was overcharged was also waived by herno-contest plea. See People v. Stevens, 130 Mich. App. 1, 4, 343 N.W. 2d 219 (1983); See also Rodriguez v. Curtin, No. 09-CV-15011, 2012 WL 1033362, at *6 (E.D. Mich. Mar. 27, 2012)(petitioner's claim ......
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