People v. West

• Decision Date: 06 May 1983
• Docket Number: Docket No. 61809
• Citation: 122 Mich.App. 517,332 N.W.2d 517
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy WEST, Defendant-Appellant. 122 Mich.App. 517, 332 N.W.2d 517
• Court: Court of Appeal of Michigan — District of US

Page 517

332 N.W.2d 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy WEST, Defendant-Appellant.

Docket No. 61809.

122 Mich.App. 517, 332 N.W.2d 517

Court of Appeals of Michigan.

Submitted Oct. 7, 1982.

Decided Jan. 19, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 518] 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.

State Appellate Defender by Elgin L. Wheeler, Detroit, for defendant-appellant.

[122 MICHAPP 519] Before BEASLEY, P.J., and KELLY and WHITE ^*, JJ.

KELLY, Judge.

Defendant pled guilty to breaking and entering a store with intent to commit a larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and larceny in a store, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. He was sentenced to a term of from 7 to 20 years on the breaking and entering charge and to a term of from 4 to 8 years on the larceny charge, the two sentences to run concurrently. Defendant appeals as of right.

Defendant argues first that the plea-taking court erred by providing defendant with a printed eight-page statement of rights pamphlet rather than orally explaining defendant's rights to him. GCR 1963, 785.7 directs a plea-taking court to advise a defendant of certain rights and possible penalties when the defendant pleads guilty or nolo contendere. The transcript of defendant's plea-taking proceeding has been carefully examined. We find the court complied with GCR 1963, 785.7 without regard to the printed rights form. Thus, defendant's argument under this issue is without merit. Cf. People v. Lockett, 111 Mich.App. 405, 314 N.W.2d 640 (1981), rev'd 413 Mich. 868, 318 N.W.2d 31 (1982).

Defendant argues next that his convictions for both breaking and entering a store with the intent to commit a larceny and larceny in a store violate his constitutional guarantees against double jeopardy. Larceny in a store is a cognate lesser included offense of breaking and entering a store with the intent to commit a larceny. See People v. Kamin, 405 Mich. 482, 496, 275 N.W.2d 777 (1979); accord, People v. Brager, 406 Mich. 1004, 280 N.W.2d [122 MICHAPP 520] 826 (1979). Cognate lesser included offenses share several elements of the greater offense, are of the same class or category, but may contain some elements not found in the higher offense. People v. Ora Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975). The fact that the lesser offense has an element not included within the greater does not preclude the lesser from being included within the greater. Ora Jones, supra, pp. 388-389, 236 N.W.2d 461.

In Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), the Supreme Court dealt with the federal ¹ and Michigan ² double jeopardy rules. That case makes clear that in Michigan there are two different double jeopardy protection tests that must be applied. The first is a federal test, enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). That test looks to whether each offense requires proof of a fact which the other does not, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli, supra, p. 785 n. 17, 95 S.Ct. p. 1293 n. 17. Conviction both of breaking and entering a store with the intent to commit a larceny and of larceny in a store does not violate this federal standard. Breaking and entering a store with the intent to commit a larceny requires proof that the defendant broke and entered with the necessary intent. It does not require that a larceny actually occurred. Larceny in a store, however, requires that the larceny actually occurred. Conversely, there is no requirement that there be a breaking and entering.

In Michigan, however, a second test must be applied. Michigan courts focus on the factual [122 MICHAPP 521] proofs involved. Wayne County Prosecutor, supra, 406 Mich. p. 399, 280 N.W.2d 793. When tried for an action which includes lesser included offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. People v. Martin, 398 Mich. 303, 309, 247 N.W.2d 303 (1976). Thus, under Michigan law rather than federal, if, factually, the convictions are based on proof of a single act, the separate crimes are held to consist of nothing more than a greater crime and certain of its lesser included offenses. See People v. Jankowski, 408 Mich. 79, 86, 289 N.W.2d 674 (1980). In such a case, multiple convictions cannot be allowed to stand. Jankowski, supra, p. 86, 289 N.W.2d 674.

"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is." Jankowski, supra, p. 91, 289 N.W.2d 674.

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 N.W.2d 536 (1972). Rather, there must be some circumstance reasonably leading to the conclusion that a larceny was intended. Palmer, supra, p. 552, 202 N.W.2d 536. When larceny in a store is charged...