People v. Ford

66 417 Mich 66

PEOPLE v FORD PEOPLE v GEORGE GONZALES

PEOPLE v HOWARD 64572, 64965, (Calendar 8, Argued April Docket Nos. 65235. No. 8) (Calendar 8) (Ford); 3, (Gonzales 7, June Nos. and Howard). 23, 1982. December Decided pled guilty Docket No. 64572. Richard J. Ford in the Calhoun Court, Nicolich, J., publishing Circuit Paul and Brennan, Appeals, P.J., false instrument. The Court of V. J. Bowles, Beasley JJ., unpublished opinion per and in an curiam, ground set aside his on conviction general uttering the defendant under the stat- ute when on the facts of the case the defendant could have charged specifically been more with misuse of a credit card was (Docket 43987). prosecutor’s an abuse of the discretion No. people appeal. ^{[18] [12] [14] [13]} [9, [7] [8, 16, [10, [1-4, [4, 5, Modern status of rules and 21A Am Jur 73 Am Jur Validity, 63 Am Jur Criminal 4 Am Jur 13] 21A Am Jur 27. of defense counsel’s 50 Am Jur 11] 50 Am Jur §30. 986. §§ 39 Am Jur 6] 7, 18] 226, 228, 230. specific 50 Am Jur 21A Am Jur 10, 13, 15, Am Jur 50 Am Jur construction, liability 2d, Appeal 2d, 2d, Prosecuting criminal offense. 90 ALR2d 811. 2d, 2d, Larceny 2d, Larceny References Statutes 346. 2d, 2d, 2d, 2d, Criminal Law 17] Criminal Law 2d, for unauthorized use of credit 2d, Criminal Law 15 et Habitual Letters of 41 Am Jur Criminal Law 645. Larceny and effect of statutes representation § 50. § 49.§ for Points Error Attorneys standards Criminals and Credit, §§ §§ §§ §§ 639, 2d, § 49, 13, § Indictments and Informations and Credit Cards 40. §§ 50. in Headnotes 640. of criminal client. 2 ALR4th 14. 984. 26, state courts as to seq. 27. establishing shoplifting Subsequent card. § Offenders adequacy ALR3d v Ford George pled guilty Docket No. 64965. Gonzales in the Berrien Court, J., Byrns, Circuit Chester J. to a exchange agreement by for an forego charging the defendant as an habitual offender. The goods larceny was of valued at $100. The Court of (V. Bowles, Appeals, Beasley Brennan, P.J., and JJ. J. dissent- ing), unpublished (Docket opinion per affirmed in an curiam 78-4382). appeals, alleging prose- No. The defendant that the charging cutor abused his discretion in the defendant with the felony larceny building of in a rather than the misdemeanor of general larceny. pled guilty Wayne Docket No. Jesse Howard in the 65235. Circuit Court, Wahls, J., Myron charge larceny H. to a exchange agreement by prosecutor in for an the to recommend one-year goods a minimum sentence. The was of valued Appeals, Holbrook, Jr., $100. at under The Court of D. E. and JJ., Cynar, unpublished R. M. Maher and affirmed in an memo- (Docket 44780). opinion randum appeals, No. The defendant alleging prosecutorial also abuse of discretion on the same grounds alleged by Gonzales. opinion by In Moody, adopted an written the late Justice by Fitzgerald Williams, their own Chief Justice and Justices Coleman, Ryan, Supreme and the Court held in Ford: proscribe The statutes which misuse of credit cards do not preclude charging uttering publishing a defendant with and a slip forged. false instrument when a credit card is Facts which forgery support indicate that is involved will a conviction under either statute. forgery 1. slip The presenta- of a credit card combined with slip tion of the and an intent to defraud constitutes the offense uttering publishing Knowing, and a false instrument. unau- thorized support charge use of the credit card would also a misuse of a credit proscribing card. The statute misuse of a proscribing credit card and uttering publishing the statute and encompass subject matter; do not the same the crimes are Knowing presentation forged distinct. writing requisite of a is a uttering publishing element of the offense. That element is required support not a conviction of misuse of a credit card. Violation of the credit card statute occurs whenever a credit misused, knowingly regardless card is forgery whether is com- involving presentation mitted. Misuse of a credit card of a forged slip credit card is not included as a substantive offense Legislature in the credit card act. The intended to extend the felony crimes, classification to credit card which had been misdemeanors, involved, passing forgery the act. Where it 417 Mich 66 charging of intended that the the defendant be left to the prosecutor of the under either the credit card act or discretion uttering publishing statute. the prosecutor’s 2. decision to the defendant under adequately supported by the statute is by Appeals record. The factors considered the Court of decision, arriving contrary penalties maximum at its of the possible chargeable relatively two offenses and the small sum defendant, by do not obtained constitute sufficient basis things on to find an abuse of discretion. Other to be which surrounding considered include the circumstances the crime personal and factors to the defendant. Before crime, defendant the considered the nature of the forgery culpable, police made which the element of more report which indicated that the offense with which the defen- offenses, charged many one of dant was was similar and the criminal record of the defendant. extensive Reversed. Levin, Kavanagh, joined by dissenting Justice Justice

Ford, Legislature the enactment wrote specific covering involving forgery statute crimes and use of expression legislative credit cards was a clear intent distinguished involving such crimes should be from crimes forgery publishing and and other forms of commercial paper. prosecution Therefore of credit card crimes must be brought proscribing under the statutes misuse of credit cards general uttering and not under the statute. Williams, opinion by joined by In an Justice Chief Justice Fitzgerald Ryan, Supreme and Justices Coleman and the Court held in Gonzales and Howard: charge A has discretion to a under a defendant particular felony statute which makes criminal misconduct a rather than under one which a misde- makes conduct meanor. Where the defendant contends that the choice violated right, Supreme jurisdiction a constitutional Court has review the exercise of discretion. prosecutor, 1. The the chief law enforcement officer of a under, county, determining has broad discretion in which of two applicable prosecuted. statutes defendant will be charge felony 2. It is not an abuse of that discretion to of larceny building although general in a of misdemeanor larceny might charged. also have been The criminal same may subject with misconduct be the matter of different statutes penalties. larceny building different The offenses of in a People y Ford general larceny have certain elements of misconduct in com- mon, elements, despite they separate but the common are independent. punishing larceny The statute in a clearly applies larceny goods of valued at less than $100 language unambiguous store. The of the statute is clear and interpretation Legislature and there is no need for of what the intended. proscribe conduct, 3. The fact that two statutes the same alone, guarantees process. long does not violate of due So overlapping provisions prohibited criminal define the conduct particularity, range penal- with sufficient and demarcate the of prosecutors may judges impose, ties that seek and the statutes vague they delegate legislative not responsibility are nor do too broadly, requirements process and the of due are satisfied. Nor determining does the exercise of discretion in under which guarantees equal statute to a defendant violate of protection per guarantees equal protection, se. To violate of exercise of discretion would have to involve invidious discrimi- duplicative nation or statutes. The defendants have failed to they singled prosecution show that were out for or that prosecute decisions to their acts as felonies were made on the impermissible ground. purpose basis of race or other Absent a discrimination, government to cause racial action that has a disproportionate alone, minority, standing effect on a racial argument not unconstitutional. The defendants’ that the stat- duplicative utes are larceny also fails. While the stat- stealing personal ute property makes the of another a property $100, misdemeanor where the value of the is under building, the offense of in addition to the elements general larceny, requires stealing that the occur in a struc- ture enumerated the statute. arguments 4. The defendants’ that their sentences are invalid punishment as cruel and unusual were not raised in the Court Appeals applications appeal or in their for leave to to the Supreme considered, showing having Court and will not be no miscarriage justice. been made that the sentences involve a guide- defendants’ further contention that lack of written prosecutorial lines for the exercise of discretion in shoplifting criminal right defendants in cases violates their process supported by argument precedent. due was not However, development guidelines pro- because of such could justice, Michigan mote fair and uniform administration of prosecutors developing are invited to take the initiative in their guidelines. own support 5. The record does not defendant Howard’s claim 417 Mich Part of of counsel. effective denied the that he was assistance plea- claim, prosecutor’s the grounded breach of on the his the trial court agreement, moot when bargaining was rendered pro The defendant failed to tunc. nunc the sentence corrected showing lay proper foundation in prerequisite or the make the Supreme Court to determine the court to enable the trial hearing appropriate evidentiary to decide would be whether an lawyer plead guilty his to because he was forced his claim that arrange presence witnesses. of defense for the failed to Affirmed. Levin, in Kavanagh, joined by dissented Gon- Justice Justice prosecutor his that a abuses He would hold Howard. zales and felony charging under circum- with a a defendant in discretion charged be as a conduct could the identical stances which case, the defendant’s he would reduce In each misdemeanor. resentencing. remand for misdemeanor and conviction to a general larceny statutes 1. The charge prosecutor require a defen- a read to both should be property according stolen. Where to the value of dant $100, only misde- property a does not exceed of the value $100, felony charged; may where it is in excess be meanor charged according the crime. may to the location of be permit Legislature selective law did not intend to 2. The proscribe identical conduct. statutes where two enforcement proper Additionally, not a basis criminal record is a defendant’s conviction, may charging. court After a trial for distinction penalty another impose greater defendant than on on one the same statute accord- involve violation of where the offenses of the ing crime or the character circumstances of the to the However, sentencing on the basis of a discretion offender. extend to conviction does not criminal record after defendant’s for the same under different statutes defendants conduct before conviction. Levin, dissenting, separate opinion for the wrote a Justice government of shared the state is one three cases: The demarcating powers various powers, and the lines absolutely A exercises are not defined. branches Legislature, power delegated by manner in which and the judicial power subject Where review. is exercised is an prosecutor’s not based on crime to decision of what offense, other considera- but on assessment of the facts of the Legislature tions, danger It is for the there is a of abuse. improper grade shoplifting of a credit use decide whether to prose- prior A offenses. card on the of the commission basis system lawfully grading his own. create a cutor cannot Ford legislation authorizing prosecutor charge repeat Absent a a penalty, beyond proper with an offender increased it is his authority to do so.

Opinion of the in Ford .Court Forgery — — 1. Credit Cards Misuse. proscribes The which statute misuse of credit cards does not preclude charging general uttering a defendant under the and publishing slip forged pre- statute where a credit card and (MCL750.157q, 750.249; sented with the intent to defraud MSA 28.446). 28.354[16], — 2. Criminal Law Credit Cards. provide The credit card act was not intended to the exclusive ground charging involving defendants who commit crimes cards; specific involving where a credit offense a credit card necessarily does not involve the same elements aas more general statutory prohibition, may prosecuted a defendant be (MCL general seq.; under the more statute 750.157m et MSA seq.). et 28.354[13] Forgery — — — 3. Credit Cards Misuse Elements of Crime. Knowing presentation forged writing requisite, of a is a element publishing of the offense of and a false instrument but necessary support is not a element to a conviction for misuse of card; a credit violation of the credit card statute occurs when- misused, knowingly regardless ever a credit card is whether (MCL forgery 750.157q, 750.249; 28.354[16], is committed MSA 28.446). Forgery — Prosecuting Attorneys — — 4. Credit Cards Discre- tion. Legislature, act, enacting in the credit card intended to felony extend the beyond classification to credit card crimes already chargeable felonies, failing those and in to include forgery presentation the substantive crime of of a credit slip act, card with intent to defraud it intended to leave charge the decision whether to the defendant under the credit general uttering card act or the statute within (MCL prosecutor 750.249; seq., the discretion of 750.157m et 28.446). seq., MSA et 28.354[13] — Prosecuting Attorneys Appeal. — — 5. Discretion Abuse allegation by Review of an of abuse of discretion support a defendant in a case where the facts would disparate penalties under either of two statutes with 417 Mich the maximum consideration of such factors as should involve crime, penalties in relation to the nature of the the circum- surrounding the crime such as the defendant’s role and stances motive, age personal to the defendant such as and factors background; relationship consideration of the penalties nature of the crime alone does not constitute a to the basis on which to find an abuse discretion. sufficient Dissenting Opinion Kavanagh, J., Ford Forgery — 6. Credit Cards. act, enacting Legislature, in the credit card intended that involving forgery and use of credit cards are to be crimes involving forgery distinguished from crimes and and paper prose- and other forms of commercial must be general uttering under the act and not under the cuted (MCL 750.249; seq., publishing statute 750.157m et MSA 28.446). seq., et 28.354[13] Howard Court in Gonzales Prosecuting Attorneys — — — 7. Discretion Courts Jurisdiction. charge prosecutor A has the discretion to a defendant under a provides particular which criminal misconduct a statute felony under a statute which classifies the rather than conduct misdemeanor, and, as a where the defendant contends that the right, Supreme choice violated a constitutional Court has jurisdiction to review the exercise of discretion. Building Shoplifting. Larceny — — 8. aIn punishing building unambig- larceny clearly The statute uously provides larceny by stealing felony in a store is a stolen, regard object without to the value of the and thus (MCL 28.592). 750.360; applies shoplifting MSA — 9. Criminal Law Due Process. particular The fact that more than one criminal conduct violates statute, more, guarantees without of due does not violate long process; overlapping provisions clearly so criminal authorized, prohibited punishment define the conduct and the (US Const, requirements process the notice of due are satisfied 17). XIV; 1963, 1, Am Const art § Prosecuting Attorneys — — Equal 10. Criminal Law Protection. A decision a defendant under an applicable felony applicable statute rather than an misde- equal protec- or federal meanor statute does not violate state People v Ford guarantees per se; guarantees, tion to violate such the decision single must be shown to have been made to out the defendant prosecution not, similarly for while others situated were and it additionally discriminatory must be shown that the selection race, sex, religion, was made on the basis of or the defendant’s (US Const, right XIV; exercise of a fundamental Am Const 2). 1963, 1, art § Prosecuting Attorneys — — Equal 11. Criminal Law Protection. prosecutorial The fact that the exercise of discretion in applicable felony appli- defendants under statutes rather than disproportionate cable misdemeanor statutes has a effect on a alone, minority, equal protection guaran- racial does not violate showing tees where there is no that the decision was made for (US purpose Const, XIV; of racial discrimination Am 'Const 2). 1, art § Larceny Building — — Equal 12. In a Protection. punishing larceny building duplicative The statute in a is not general larceny statute; larceny while the offense of in a building general larceny, includes the elements of it also re- quires proof stealing in a structure enumerated in the (MCL750.356, 28.592). 750.360; 28.588, statute MSA Prosecuting Attorneys — Shoplifting — 13. Due Process. policies prosecutors The absence of shoplifting written determining charge larceny cases in whether to process does not violate a defendant’s due rights. — 14. Criminal Law Effective Assistance of Counsel. person adequacy A convicted representa- who attacks the of the during prove claim; tion which he received his trial must his depends record, the extent that his claim on facts not of he must move for a new trial in the trial court and make a which, evidentially supports testimonial record his claim and hypotheses excludes inconsistent with the claim. Dissenting by Opinion Kavanagh, J., in Gonzales and Howard Prosecuting Attorneys — 15. Discretion. A abuses his discretion in a defendant with a felony under circumstances in which the identical conduct charged could be as a misdemeanor. Larceny Building — Shoplifting. — 16. In a Larceny property may which does not exceed $100 in value 417 Mich misdemeanor; the value exceeds charged where only as a be according $100, charged to the location felony may be 28.592). 28.588, (MCL 750.356, 750.360;MSA

larceny by Dissenting Levin, J., Ford, Gonzales, and Howard — — Prosecuting Attorneys Review. Powers Judicial 17. law, by delegated power provided prosecutor exercises The delegated legislatively he exercises that in which the manner subject judicial power review. Prosecuting Attorneys — Shoplifting — Larceny — Powers 18. Charging. — repeat provided offend- Legislature some offenses has for severely, has not so may punished but more be ers shall converting felony offense of shoplifting, provided for petty offense of and the misdemeanor prosecutions misconduct for the same larceny into alternative an assess- guided other than considerations the choice with repeated facts, shoplifting is a such as whether ment of the authority has offense, which prosecutors exceeded have given properly be to them. could been or Attorney Kelley, General, Louis J. Frank J. Sindt, Prosecut- General, Caruso, Conrad Solicitor ing Attorney, Prosecuting Attorney, MacFarlane, Assistant H. and John people in Ford.

for Appellate De- Bretz, State J. Assistant Ronald fender, Ford. for defendant Kelley, Attorney General, J.

Frank Louis J. Smietanka, General, A. Caruso, Prosecuting Attorney, John Solicitor Baryames, Angela As- people Prosecuting Attorney, sistant Gonzales. Appellate De- Bennett, State E. Assistant

P. fender, for defendant Gonzales. Attorney Kelley, General, J. Louis

Frank J. Cahalan, General, L. Caruso, Solicitor William v Ford op the Court Wilson, Edward Reilly Prosecuting Attorney, Prin- M. Joyce Janice Bar- cipal and Attorney, Appeals, tee, Prosecuting Assistant for the Attorney, people in Howard. Grove,

Chari Appellate Assistant State De- fender, for defendant Howard.

People v Ford C.J., and and Fitzgerald, Williams, Coleman, opinion JJ. This was written Justice Ryan, Jr., prior to his death on November Moody, Blair 1982. We concur this opinion adopt it as our own. 6, 1978, pled

On November defendant guilty to a charge of uttering false instru 750.249; or writing. ment other MCL MSA 28.446.1 Defendant was sentenced to a minimum of 4 and a imprisonment maximum of 14 years be served consecutively with sentence defendant was al ready serving.

Following appeal an of right to the Court of Appeals, set Court aside defendant’s convic- tion, it holding prosecutorial was an abuse discretion to defendant the general when, and publishing on the statute facts presented, specific there existed a more charge, misuse of a 750.157q; credit card. MSA MCL 750.249; MCL MSA 28.446: "Uttering publishing forged instruments— "Any person true, false, publish any forged, who shall utter and record, deed, writing or altered counterfeit instrument or other men- section, false, preceding altered, knowing tioned forged the same to be counterfeit, aforesaid, injure intent with or defraud as guilty felony, punishable by imprisonment shall be prison of a in the state years.” not more than 14 417 Mich op Opinion the Court Ford, App 95 Mich v Richard

28.354(16).2 People 412; 291 NW2d to determine appeal leave to granted

This Court the act on protection card the credit impact of the a credit forges accused who an of whether issue uttering and with chargeable properly slip card abused his prosecutor the and whether publishing, in the instant defendant the discretion statute. publishing and uttering the case not statutes do credit card We hold uttering and with accused charging an preclude forged and slip is a credit card when case, no abuse there was that, of this on the facts Appeals Court of discretion. prosecutorial conviction is defendant’s decision is reversed reinstated.

Facts 1978, a Clark presented defendant July On Battle Creek attendant of a card to the Oil credit issued to the The card had been station. gas area of A1 in the name Agency Action County Calhoun A1 Johnson signed the name Defendant Johnson. slip card sales and obtained $21.30 on the credit possession the attendant. Defendant’s cash from unauthorized. card were and use of the credit presented he admitted that when Defendant intent to defraud card he did so with the attendant._ 28.354(16): 750.157q; MSA 2MCL delivers, person which "Any a credit card who circulates or sells person which held such under circumstances

was obtained or is would constitute an offense permits 157p, or or uses under sections 157n or delivered, used, procures circu- the same to be or causes or sold, knowing under circum- to be obtained or held lated or stances which would constitute the same 157n an offense under sections 157p, guilty felony.” shall be of a 77. v Ford op the Court charged Defendant was with pub- 750.249; violation of MCL lishing MSA 28.446. to guilty plea charge Defendant’s was entered agreement. to pursuant plea agree- Under this ment, agreed to recommend to the 5- further, court a sentence 14-year that a supplemental information would not be filed. De- fendant was sentenced to a 4- to 14-year term to consecutively be served the sentence he was serving. already setting conviction,

In aside the defendant’s Appeals Court of held that it was an abuse of prosecutorial discretion defendant with uttering publishing, a maximum 14- carrying a year penalty, specific statute, when more credit misuse, card carrying 4-year maximum penalty applicable was more to the offense.

I is no dispute There forgery defendant’s of the slip, credit card pre- sales with his combined of slip defraud, sentation the and his intent constitutes the of uttering offense and publishing. People Hester, v 475; 24 Mich 180 App NW2d 360 case, On the of facts the instant defendant could also have been charged with of a misuse card, credit since defendant the card used credit knowing that such use was unauthorized.

Defendant contends that by passage its bill, credit card PA 1967 the Legislature demonstrated its intent that all credit card crime would be controlled eight this act’s sections. Therefore, defendant, claims was improper it the prosecutor general with the him 66 Mich the of Court when the more violation publishing

uttering applicable. was card specific credit statute in the provision exclusivity no there is Because to ascertain statutes, necessary it credit card the current intended Legislature the what effect statutory other to have on statutes credit card violations. credit card stat present enactment 28.354(13)- 750.157m-750.157u; MSA

utes, MCL 28.354(20) single credit card replaced of a credit card had misuse punished statute which 28.416(1).3 750.219a; MSA MCL a misdemeanor. effect, inwas single credit card statute When this two cases Appeals decided Michigan Court of Hester, supra, People v the Court In point. on forgery conviction upheld the defendant’s slip under credit card Hester was Although the issue whether

statute. statute instead charged under properly not ad directly was credit card statute cognizant of the issue. dressed, the Court was Hester, p 483. Shaw, 325; 183 App Mich NW2d

In (1970), (1971), lv den 385 Mich 760 the defen slip charged forgery of a credit card dant was with read: As enacted in this section credit, attempts "Any person knowingly or or to obtain who obtains service, by any goods, property purchases attempts purchase or to or false, card, any use or counterfeit credit credit the of fictitious device, any number, by telephone the credit or use of number or other card, number, telephone of other credit device credit another without number number, credit number or card, person authority the to whom such the of card, issued, by any the credit credit device was or use of or any telephone in case where number or other credit device card, and notice of revoca- such tion, number or device has been revoked 219b, given person provided the to as in has to section been issued, guilty of whom a misdemeanor.” People v Ford Opinion of the Court 750.248; contrary to MCL MSA 28.4454 and was following convicted trial. jury argument Shaw’s on the as appeal was same advocated defendant Ford in this case. Shaw contended the had his abused discretion in charg ing him the general forgery statute when the concerning statute the unauthorized use of a credit card was available.

While the Shaw Court acknowledged "funda- mental rule of statutory construction that when encompass matter, two statutes subject same being general one specific, the other the latter control”, will it found rule this not to be applicable because the two statutes did not cover the same Shaw, subject matter. 326. p forgery The actual necessary establish an offense under the forgery was prove statute not necessary offense of Therefore, the Shaw Court credit card misuse. specific held: "Where credit card offense charged did necessarily not involve same ele- ments as a more prohibition, statutory 750.248; MCL MSA 28.445: "(1) person make, Any alter, forge falsely shall who or counterfeit record, any public of a any certificate, or any return or clerk attestation of court, public register, notary public, justice peace, town- clerk, ship officer, any public or any other in to be matter relation certificate, may wherein such return or attestation received legal obligatory, charter, will, proof, any deed, testament, writing or bond or attorney, insurance, policy lading, letter of of bill bill of of note, exchange, order, promissory discharge any acquittance or for waiver, money property, release, demand, any other or or or or claim any acceptance indorsement, exchange, assignment of a bill or or exchange a any promissory money, bill of payment or note for the or goods receipt money, property, accountable or other with injure any person, guilty felony, intent or defraud shall be of a punishable by imprisonment prison state not more than years. "(2) prosecution may The venue in a under this section be either county performed, forgery county the which in which the was false, any forged, record, deed, altered or counterfeit instru- writing published injure ment or other is uttered and with intent to or defraud.” Mich op the Court prose- preclude

specific will not statute credit card general more statutes.” under or conviction cution p Shaw, 327. analysis is still that the Shaw Court’s

holdWe applicable good at to case bar. law and is charged under have been could Defendant Ford prose- present however, statute; his credit card general under the cution precluded. the credit of was not Violation statute card card is whenever a credit statute occurs regardless forgery knowingly misused, whether .a given case the facts of a committed. When is indicate present, forgery of is additional element support will a conviction then the facts the credit card either the statute or statute. analysis the Shaw

Defendant Ford claims light longer the credit card no be used can act. the However, indications that there are several Legislature to not intend these statutes be did chargeable misuse of offenses when the exclusive forged presentation credit card of a credit card includes slip. specific

First, all of the seven offenses but one5 prior compared felonies, are delineated single a misde- credit offense which was card 28.354(18): 750.157s; MCL MSA who, “Any person purpose obtaining goods, property, for the value, anything knowingly intent to defraud services or and with by the issuer uses a credit card which has been revoked or canceled thereof, distinguished expired, of such revocation from notice through registered person has such or cancellation been received certified, service, guilty by personal of a misde- or meanor anything mail or shall be goods, property, aggregate services or if the value of the less, guilty of a misde- of value is or be $100.00 shall $1,000.00 imprisoned punishable by not more than or meanor not more property, a fine of both, goods, year, aggregate than 1 if the value of or anything $100.00.” services or of value more than People v Ford Opinion op the Court Legislature’s meanor. This indicates intent penalties attach harsher credit card crimes. slip credit card sales Forgery presentation slip felony of a was a with a already maximum 14 punishment sentence matrix years. of The de- veloped Legislature the in the card by credit stat- complement utes was intended existing the general felony statutes. addition,

In a analysis close of the included in the credit act offenses card reveals that a sub stantive offense such the one at bar was not significant addressed. This is specifically especially (1979), it an abuse 943 which held that was Mich charge the defendant discretion to prosecutorial statute, MCL false general pretenses under 28.415, 750.218; of under the statute MSA instead funds an insufficient prohibits delivery which facts of check, 750.131; MSA 28.326. On the MCL LaRose, was pretense false only the defendant’s giving to the his false incident representation Therefore, Court an insufficient funds check. charged have concluded that LaRose should been LaRose funds statute. The insufficient however, presen acknowledge, Court did accompanied if an funds check insufficient tation con representation justify additional false may See, e.g., pretenses statute. viction under false Vida, 559 v 409; 2 Mich 140 NW2d People App (1969), aff'd 381 Mich (1966), 595; 166 465 NW2d Niver, People v App 652; 152 NW2d Mich People v Ford Opinion op the Court Since this case involves misuse of a credit card forgery, and the additional element of under the analysis charged LaRose defendant Ford could be under either the statutes or the credit card statute. The case at bar is not a case in which possible applicable prohibit two statutes the same statutory conduct. Rather it is a case where the crimes are distinct. point

This was found determinative in App (1975), Sanford, 65 101; Mich 237 NW2d 201 (1978).. 460; aff’d 402 Mich NW2d The San- argued ford defendants it was an abuse of prosecutorial charge discretion to them with as- sault with intent to rob unarmed, while MCL 750.88; 28.283, MSA instead of with unarmed rob- bery, 750.530; MCL MSA 28.798. The Court re- jected the defendants’ claim that the two statutes prohibited the same conduct: "Because MCL requires 750.88; MSA 28.283 an assault as an element, and because MCL 750.530; MSA 28.798 requires either an assault or force violence, prohibit the two statutes different crimes. The prosecutor properly has the discretion to defendants p under either statute.” Sanford, 105. analysis applies

This same to the instant case. knowing presentation forged writing of a is a requisite element of the required support offense. This element is not conviction under the credit card statute. There fore, Sanford, as in has the discre charge tion to under either statute.7_ 7 McDuffy State, v 537; See App McCrory (1969); 6 Md 252 A2d 270 State, v (Miss, State, 1968); 210 So 2d 877 Vannerson v 403 SW2d 791 (Tex Graham, 1966); App, (Okla Crim 1961). Shriver v 366 P2d 774 Crim App,

84 66 417 Mich Opinion of the Court II support Having of this case that the facts found charges and under both statutes, examine the we now card the credit prosecutor’s decision 4-year felony 14-year than the rather statute felony whether to determine statute card credit discretion. an abuse of there was in determin- discretion have broad Prosecutors applicable ing statutes of two under which prosecute. Genesee Circuit Prosecutor v Genesee (1972). Judge, 672, 683; 194 NW2d 693 Mich unlimited. Borden- However, discretion is not Hayes, 663; 54 365; 98 S Ct 434 US kircher v (1978). Court can review This L Ed 2d Genesee Prosecutor of discretion. correct an abuse Judge, 115, 121; 215 391 Mich Genesee Circuit danger arbitrary and It of NW2d discriminatory pro- that must be law enforcement adequately , against. The record of this case tected prosecutor’s supports exercise of his finding support The facts do not discretion. charging. discriminatory árbitrary prosecutorial Appeals finding The Court of of the maxi- was based on considerations abuse possible penalties, years, of the two mum chargeable relatively small sum offenses and the Although these the defendant. obtained $21.30 properly they may considered, constitute factors be to find abuse an insufficient basis on which prosecutorial factors which discretion. Other include the circumstances should be considered place, as the the crime took such under which motive, and and his offender’s role the crime People v Ford 85 Opinion op the Court offender, personal particular factors to the such as age general background.8 to the

Prior issuance of the warrant in the case, prosecutor instant the considered several factors before making his decision to under statute. In examining involved, the nature of the crime as discussed in I, Part the misuse of a credit card included the additional forged element credit card slip, making Also, the crime even more culpable. police report indicated the defendant had made numerous fraudulent purchases credit card 23, 1978, 23, 1978, between June and July on a Calhoun Community Action credit Agency card at gas a Battle Creek Clark A station. review of the credit slips card involved in these purchases indi $1,500.9 cated a loss of more than Furthermore, considering personal factors defendant, particular this was confronted with a 34-year-old suspect with an extensive criminal record which spanned past 17 years.10 We find adequate justification for charg- 8 Project See American Bar Association on Standards for Criminal Justice, Function, commentary. Prosecution Standard 3.9 and considering We are not here whether such information could properly sentencing. be used at trial or considered at following history The record reflects the of defendant’s convic- tions: County: "Date: Offense: driving away "12/2/61 Kalamazoo Unlawful automobile Larceny "1/31/64 Kalamazoo from a Non-support "7/20/66 Kalamazoo Soliciting "11/13/67 Kalamazoo Larceny "3/4/68 $100 Kalamazoo Larceny by "7/11/68 Kalamazoo conversion Attempted larceny by "1/6/71 Kalamazoo trick Concealing property "3/24/71 Calhoun stolen "9/23/72 Calhoun driving away Unlawful automobile authority without but without intent steal, CT. II Mich Dissenting Kavanagh, J. greater offense. with

ing defendant

Conclusion decision is Appeals Accordingly, the Court under MCL reversed, conviction and defendant’s is reinstated. 750.249; MSA 28.446 Coleman, Fitzgerald, Williams, and C.J., and Ryan, JJ., concurred. affirmance). (for I satisfied

Kavanagh, am J. covering specific of statute that enactment of credit and use forgery involving crimes intent of expression legislative a cards was clear from distinguished crimes they should be involving forgery paper.

of other forms of commercial hold prosecution For this I would reason MCL must be under brought credit card crimes 28.354(13)-28.354(20) 750.157m-750.157u; MSA seq. 28.446 et seq.; under MCL 750.249 et MSA not Court of judgment I affirm the would Appeals. Kavanagh, J. J.,

Levin, with concurred Larceny by conversion "2/15/74 Kalamazoo Larceny under $100 Calhoun "7/25/74 Larceny by conversion "8/14/74 Calhoun Larceny by conversion "3/10/75 Calhoun Larceny $100 under "11/17/75 Calhoun Contempt of court "12/13/76 Kalamazoo Felonious assault "3/31/76 Calhoun Larceny $100 "4/12/76 Calhoun Larceny from a "7/1/76 Kalamazoo Larceny building”. "3/7/77 Calhoun Ford Opinion of the Court People v Gonzales People v Howard J. The basic issue in this case is what Williams, prosecutors any, discretion, if have to a larceny felony building1 in with the a defendant general than rather larceny,2 with misdemeanor when items under value are $100 The stolen from a store.3 quirement additional critical re felony is that the mis place building. take conduct prosecutors argue in The limine that the exer- judicial cise such discretion is immune from except discriminatory review prosecution religion and intentional race,

on the basis of such criteria as penalizing the exercise of a constitu- right. They immunity tional base this on the con- years shall stealing the value of the granary, ship, or stolen exceed punishable by imprisonment stealing, any to be land, theft a misdemeanor.” any building service exchange accounts for or 750.356; the value is under one hundred dollars and "Sec. 360. "Sec. 356. defeasance, MCL MCL bank be of in an or delivered, or provision station, MSA 28.588 any in 750.356; 750.360; by or other note, the value of $100.00 or any enumerated structure like a fine of not more than Any person used Any person other valuable contract boat, vessel, or the value property concerning money property shop, dwelling or under which the defendants were bank MSA 28.588. See fn 3 for text. MSA 28.592. See fn 3 for text. by any any bill, draft, provides: writ, process warehouse, mill, bill, statute defines theft to be a misdemeanor deed or public of who shall commit the taken. MCL who house, of church, another, bond, $100.00, in the shall commit the crime of shall be order or writing containing house less, or promissory house $2,500.00. or any in 750.360; goods state shall be public such guilty trailer, force, factory, money, store certificate, due or to become prison person worship, MSA 28.592 states: aof record, or If note, felony a offense office, store, goods guilty hotel, felony any receipt, felony.” not charged shall be a due or property if if the locker conveyance or of more than 5 school, barn, over it. MCL regardless any of a bill, chattels, larceny, by larceny makes a guilty property room gasoline book of due, release felony, bill of stolen by or or or of if 417 Mich op the Court they powers. separation However, stitutional grounds argue for finds if this Court that

further review, two to choose between discretion their recognized by Court, applicable for this is statutes example, Circuit v Genesee Prosecutor in Genesee (1972), Judge, 672; 194 NW2d 386 Mich Supreme in United States Court States the United 2198; 60 L Ed Batchelder, 114; 99 S Ct 442 US v 2d part, Defendants, maintain for their Legislature intend "to have did not applicable shoplifting building cases”, statute a relying App 418; Carmichael, 86 Mich on (1978). Furthermore, defendants 272 argue NW2d statutory Legislature intend a if the did charge petty prosecutor permitting to a scheme shoplifting felony misdemeanor, a a as either legislation three rea- unconstitutional for such process for failure to First, it lacks due sons. provide clarity notify adequate the defendant of to govern prosecutorial Sec- discretion. standards gives protection, equal because it ond, it denies charge prosecutor unguided to the discretion carrying a either a misdemeanor the same acts as four-year felony carrying 90-day penalty, or a penalty permitting four-year penalty. Third, punishment. petty shoplifting unusual is cruel and case, that he defendant also claims In the Howard lacked effective assistance

of counsel. jurisdiction to re- has We hold that this Court prosecutorial discretion the exercise of view it where choice of statutes under which violated a constitu- is contended that such choice right right. no was vio- also hold that tional We may in these cases and that a lated charge larceny than rather People Ford v Opinion of the Court larceny, although larceny the involved items val proof $100, than where there ued less invidious discrimination is no by prosecutor.4 the We failing argue defendants, further hold that punishment the cruel and unusual issue Appeals application it Court of or to raise in their appeal preserve Court, for leave to to this failed to Finally, prejudice, the matter. without we do not review the issue of ineffective assistance of counsel in the Howard case because the record is inade quate present counsel failed to ask the trial * hearing. court for a Ginther

I. Facts A. v Gonzales 10, 1977,

On November the defendant was ar- Department rested in Store, Belscott’s it where alleged pairs was that he stole a shirt and two 12, 1977, slacks. On November issued a warrant was defendant with in a build- ing, preliminary 750.360; MCL MSA 28.592. A examination 22, was conducted on November 1977.

According testimony security to the of the store guard, accomplice defendant and an secreted a pairs paper bag shirt and two slacks while inside the store. defendant refused a exit, When confronted at the store request by guard to in- spect leaving bag. away ran, Defendant broke bag Shortly thereafter, behind. "The rule articulated most federal and state courts is that * * * prosecution equal protection rights only violates the defendant’s government’s when 'the discriminatory prosecu- selection of him for * * Gifford, tion has been Equal invidious or in bad faith Protec- Charging Ideal, tion and Enforcing the Prosecutor’s Decision: an (1981). Geo Wash L Rev 661-662 *People Ginther, 436; 390 Mich 212 NW2d 922 —Re- porter. Mich 66 417

90 op the Court returned the defendant apprehended police 5, 1977, defendant On December him to the store. in Berrien information on the arraigned was later, infor- supplemental a weeks Several County. prior as a charging defendant was filed mation of lar- conviction previous of a offender because building. in a ceny the defendant following year, January

In prosecutor’s prom- for the exchange in pled guilty in- supplemental on the forego prosecution ise to 2- term of from to a He was sentenced formation. to the appealed He imprisonment. 1/2 to years in affirmed his conviction which Appeals, Court of opinion. per curiam unpublished an for leave to application granted defendant’s We (1980). 20, 1980. 409 Mich on November appeal People v Howard B. 1978, 8, was arrested defendant September

On Store with Department Atlantic Spartan De- pants. stealing pairs for three codefendant building. with charged fendant was trial, part way to a but right jury He exercised his plead guilty dire he elected to through voir exchange prosecutor’s charged, allegedly a minimum sentence agreement recommend one year. County accepted

The trial court in Wayne to 4 to from 2-1/2 plea and sentenced defendant pending While the case was years imprisonment. the trial Appeals, Court of appeal on before the tunc correction of sen- pro a nunc signed court years. amended it to from to tence which affirming de- opinion its Appeals Court of issued fendant’s conviction. Ford Opinion of the Court granted application

We defendant’s for leave to 20, on 1980. 409 appeal November Mich 945 II We first consider plaintiffs’ contention that "the prosecutor’s election to the higher of two applicable subject statutes is not to judicial rev It iew”.5 is true that under the doctrine of consti separation powers tutional each gov branch of ernment sovereign sphere. its own Const 3, However, art 2. it is basic law that § authority to determine the parameters of power to be exercised each by branch is vested Madison, v (1 Cranch) Marbury courts. 5 137, US (1803). 177; 2 L Ed 135 This "is an authority awesome power and responsibility and must be exercised both courageously and with understand ing and restraint”. Genesee Prosecutor v Genesee Circuit Judge, 672, 675; 386 Mich 194 NW2d 693 (1972). The self-imposed principle of judicial re however, straint yield, when, must here, of the activity executive branch alleged is to be unconstitutional, illegal, or ultra vires. See Gene see Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 Detroit v Wayne Cir (1974); NW2d 145 cuit Judge, (1890). 384; 79 Mich 44 NW 622 We proceed therefore discretion, to determine what if any, prosecutor has in the matter at hand.

III. Prosecutorial Discretion prosecutor is the chief law enforcement officer of the county. recognized His office is in the 5 County Wayne County Berrien Prosecutor’s brief. The Prose- phrased differently: separation cutor’s brief it "It is a violation of the powers prosecutor’s of charging doctrine for a court to review a exercise of showing suspect discretion absent a of selective use of criteria.”

92 Mich 66 417 op the Court powers are estab His duties and constitution.6 prose on the statute.7 We commented lished cutor’s broad discretion on in the determination charge in to base a Genesee which of two statutes Judge, supra, 386 Circuit v Genesee Prosecutor 683, Mich as follows: past prosecutor the and has the held in the that "We have county of the chief law enforcement officer determining under right to exercise broad discretion prosecution will be applicable two statutes a which of 451, Lombardo, 301 453 People v Mich instituted. (1942); People 687, 690, (1922); Thrine, 218 Mich 691 v Mire, 357, 364 See also People People 173 Mich v 635, Graves, (1971); People App 31 Mich 636 v v 270, (1969);

Eineder, People Byrd, 12 App 16 Mich v (1968), J., concurring opinion of App Mich Levin, 559, 7; People App particularly Ryan, fn Mich (1968).” case, Prosecutor the circuit In this Genesee granted against prosecutor, judge, the will plead which allowed him to the defendant’s motion guilty unlawfully driving away automobile severely penalized of another in lieu of the more possession felony, to be of a motor vehicle known complaint charged. stolen, which the had We held the court could not do this and had discretion to choice, to statute of his the facts where the statute but limited our decision

presenting a less se- penalty vere was not a "lesser included offense” greater. the 386 Mich 684. case,

In the 1974 Genesee Prosecutor we reached 1963, 7, provides: Const art 4 which § four-year organized "There shall be elected for terms in each sheriff, clerk, treasurer, county county county register deeds a a a a prosecuting attorney powers provided and a whose duties and shall be by law.” seq.; seq. MCL 49.153 et MSA 5.751 et v Ford Opinion of the Court same conclusions the where the circuit judge to sought accept, over the objections prose- cutor, plea a of a "lesser included offense” of the wit, charged, plea crime a of manslaughter to a second-degree murder. Mich 122.

The Genesee Prosecutor cases stand for proposition that a may prose- insist on cuting greater offense even though the circuit judge accept plea offense, wishes to on a lesser regardless it of whether is a separate a lesser included offense. Obviously, both cases the ele- similar, mental and, misconduct was in the 1974 (lesser offense) case, included the elemental mis- conduct was the same by definition.

As a consequence, unless there is some other reason, affirm these cases stand as precedent convictions, and, therefore, instant since we reason, find no such we hold it is not an abuse of prosecutorial discretion to charge felony larceny building although the misde- meanor of might also have been charged. IV. Legislative Intent Not to Include

Shoplifting Larceny Building in the in a

Statute Defendants maintain Legislature did not intend to have the larceny stat ute apply shoplifting They cases. both on rely Carmichael, the following dictum8 from People v supra, 86 Mich 422: App 8 Carmichael was decided on the trial court’s erroneous failure to permit plea sentencing, guilty the defendant to withdraw his before plea involuntary

when it clear that was was because the defen- pled pains dant coercion in the midst of alcoholic withdrawal and after attorney. his 417 Mich 66 Opinion of the Court Legislature "It was not the intent of the to have the building applicable

larceny shoplifting statute cases.” statutory

However, it is the first rule of con- language struction that where the of a statute is unambiguous, clear and pretation there is no need for inter- Legislature intended,

of what be- cause it has said it intended. what Dussia v Mon- County Employees System, roe Retirement 244, 248-249; Mich 191 NW2d 307 question, 750.360; 28.592, statute in MCL MSA reads as follows: Any person "Sec. 360. who shall commit the crime of house, larceny by stealing dwelling trailer, any house office, store, station, gasoline warehouse, shop, service

mill, hotel, school, barn, boat, factory, granary, ship, vessel, church, worship, any house of locker room or by public guilty used shall felony.” be of a applicable, per- "Any

As here the statute reads: larceny by son who shall commit the crime of * * * * * * stealing any guilty store shall be felony”. Nothing plainer simpler. could be suggestion "larceny by stealing” There is no any way object inis limited the value of the simply stolen. It refers to the of "the commission larceny by stealing”. crime words, In other MCL unambiguous. 750.360; MSA 28.592 is clear and beyond peradventure Furthermore, it is clear stealing clothing that defendants’ acts of valued at buildings certainly under in store fell $100 within proscription statutory language. The fact the same misconduct is also chargeable statute special implications. already raises no As we have cases, noted in Genesee Prosecutor and other Ford Opinion of the Court commonly can is the misconduct be same subject with different matter of different statutes particularly penalties. noted that the whole We phenomenon included offenses indicates of lesser appearance same misconduct in a that In is a occurrence. number of statutes building larceny words, in a statute and other general larceny easily statute can be construed the together, ambiguity is created

because no they have certain elements of misconduct fact that Despite they elements, these common in common. separate, independent statutes and must be so are treated. quoted

Returning Carmichael, to dictum appears an to have been honest but aberrant opinions Appeals, opinion. of the Court of Other Carmichael, have not noted both before and after Legislature except shoplift any intention of the ing larceny in from the intendment of the a build ing contrary.9 and have held to the Two statute particular matter cases in have considered the thoughtfully. directly and The seminal case of People App Jackson, 654, 655-656; 29 Mich 185 v (1971), setting NW2d 608 after forth the facts arguments succinctly, covered most of the raised in this case. argues

"Defendant the conviction under felony larceny, property offense of when the stolen is less, contrary legislative valued at is intent. $100 accept interpretation. We do not defendant’s 9 (1980); (1980); (1980); 637, 643; People Benjamin, App v 101 Mich 300 NW2d 661 Freeland, 501, People App 511; v 101 Mich 300 NW2d 616 Holmes, 369, People App 371-372; v 98 Mich 295 NW2d 887 Hart, 273, 275; (1980); People People Evans, App v v 98 Mich 296 NW2d 235 Bohm, 4; (1979); People App 94 Mich 287 608 v 49 Mich NW2d 244, 249; (1973); Graves, App App People Mich 212 NW2d 61 v 31 637; (1971); Jackson, 654; People App 185 188 NW2d 87 v 29 Mich (1971). Prosecutor, 543; App Bay 102 Mich NW2d 608 302 NW2d 225 But see In re (1980). 417 66

96 Mich op the Court guilty lar- "Defendant would be either of the legislature ceny obviously statutes. The has decided larceny building presents problem in a a social that separate larcenies in a felony apart simple larceny from and that all irrelevant, building, being value v deserve Gladden, 631; See Black 393 P2d status. Or (1964). felony . "The the defendant decision with the instead of a misdemeanor is the 451; App Mich the sound discretion of Lombardo, prosecuting attorney. People v 301 Mich 13 Mich (1942);People Birmingham, 3 NW2d 839 v 402; (1968); Eineder, NW2d 270; App 167 NW2d 893 arguments felony-larceny "Defendant’s that the stat- vague ute is and uncertain and that he was denied equal protection of the laws are It without merit. clearly legislature the discretion of the within to distin- guish simple larceny

separate social evils. argument prison

"Defendant’s further term punishment constitutes cruel and unusual less. The is also merit- given prison dispro- term defendant is not so portionate to the crime as to shock the conscience of this Court.”

This case established the law until Carmichael. Carmichael, to Subsequent leading the case has Evans, People 4; been 94 Mich App NW2d (1979), which carefully policy considered the implications raised the issue and found no prosecutorial abuse of discretion in lar- in ceny building a where the petty theft was but the thief was an habitual offender. conclusion,

In it to us that appears Legisla ture has clearly expressed its in the intention in larceny statute lar petty that ceny a store falls that proscription within the of statute.10 750.360; unambiguous language While the clear and of MCL MSA aids, necessity

28.592 obviates the of other we have construction v Ford Opinion of the Court of Lack Process Because Due of V. Violation Legislative Standards of statutory scheme, assert Defendants permitting act to the same building, general larceny as either denies defendants on Giaccio v They rely heavily process. due Pennsylvania, 399; 382 US 86 S Ct (1966). Giaccio, In the defen- 518; 15 L Ed 2d although guilty misdemeanor dant, charge, not of a found peculiar Pennsylvania stat-

was, under a jury, permitted the ute, The statute assessed costs. acquittal case, in their to assess costs after an against county, unguided discretion sole and prosecutor, defendant the further or the with pay provision defendant did not costs if the against him, he would be committed assessed gave paid, jail he unless until the costs were pay days. security The United States ten within Supreme a lack of due held that there was Court pro- vagueness process and failure to because legal standards. vide point. all, not on First

The Giaccio case is Supreme found Court in that case States United the vague, Pennsylvania whereas we statute to be statutory vagueness scheme here in the find no delegation question. problem Second, the assigned jury entirely Giaccio, the was different. In experi- prior duty which it had no an exotic ence. In the instant with supra, Batchelder, case, as delegation duty prosecutors "is indicates, the routinely they authority exer- than the no broader enforcing In 126. 442 US cise in criminal laws”. * * * "guidance as reason- words, other there is requires”. subject ably precise Osius as the matter considered, by, persuaded in this defendants’ efforts but have not been regard.

98 417 Mich

Opinion op the Court City Shores, 693, 698; of St Clair Mich NW2d Vagueness

A. process analysis It is well established in due underlying principle person is that no shall be for conduct which a criminally responsible held person reasonably

could not understand to be proscribed. Kentucky, 104; See Colten v 407 US (1972); 1953; S Ct 32 L Ed 2d 584 United States v Harriss, 612; 808; 347 US 74 S Ct 98 L Ed 989 (1954); (1979). Lashinsky, 1; State v 81 NJ 404 A2d 1121 supra. Batchelder,

See also United States v person may An additional tenet is that no be subject peril liberty, property life, or without understanding potential a settled sanctions punishments by penal established a statute. A give person criminal statute will fall if it fails to of ordinary intelligence reasonable notice that his may behavior be unlawful. United States v Bat- key chelder; United States v Harriss. The in re- solving this issue is to determine whether statutory question scheme in describes with suffi- clarity consequences violating cient relevant criminal statute. process basis,

On constitutional due it should showing difference, make no without a of some- thing more, two statutes cover the same particular conduct. Even if conduct violates more phenomenon statute, than one this alone does not diminish the notice afforded each statute: "Although uncertainty statutes create as to which may charged crime penalties be and therefore what may imposed, they greater be do so to no extent than single would a authorizing statute various alternative punishments. long So overlapping provi- criminal Ford Opinion of the Court clearly prohibited sions punishment define the conduct and the requirements authorized, the notice Due Process Clause are satisfied.” United States v supra, Batchelder, Accord, Weiner, 123. State v 454; Ariz P2d allegation

Thus, since there is no that the stat- question individually in utes do not describe particularity, crimes with sufficient such a we hold that statutory scheme in and of itself does not process Michigan violate due under the Constitu- tion or the United States Constitution. Impermissible Delegation B. statutory

Defendants further believe that scheme of ceny provides lar- great disparity of treatment guidance regulating prose- because there is no in they provi- cutors when choose between these two prosecuting Simply sions the defendants. stated they per alleged believe that lack of standards is objectionable. agree.

se We do not In Batchelder, United States v the defendant was convicted and sentenced under a federal stat- prohibiting previously ute convicted felon from receiving a firearm that has traveled interstate (18 922[h]). commerce USC This statute carried a five-year penalty. Appeals maximum The Court of for the Seventh Circuit reversed the sentence on the basis that the substantive elements of 18 USC 922(h) Appendix were identical with 18 USC 1202(a) only two-year which carries maximum penalty. Appeals postu- The Circuit Court of also might impermissibly lated the statutes dele- gate prosecutors legislative responsi- to federal bility penalties. Supreme to set criminal reasoning soundly rejected Court, however, this stating: 417 Mich 66 Opinion of the Court provisions

"The plainly range at issue demarcate the may penalties prosecutors judges that light seek and specificity, power impose. In of that delegated no Congress has to those officials is broader routinely enforcing authority they than the exercise courts, Having prosecutors, criminal and defendants of the laws. informed * * * permissible punishment 126. duty.” 442 US Congress has fulfilled its arguments opinion, answers the Batchelder In our by the defendants. advanced Equal Protection VI. Violation prosecutorial discretion assert Defendants felony larceny charge either petty or the misdemeanor shoplifting equal protection. guarantees violates constitutional arguments are twofold. Their they rely First, on cases from four other states adopted Second, such a rule. that seem to have they Hopkins, rely 356; 118 US 6 S Yick Wo v on 1064; 30 L Ed 220 Ct People argue Calvaresi, v Defendants (1975), Hagge, 224 v State 277; Colo NW2d 534 P2d 316 (ND, 1974), Pirkey, 697; 203 Or v State (1955), 9; Zornes, 2d 78 Wash v 281 P2d 698 State (1970), Collins, 55 Wash and State 475 P2d (1960), persuasive prece- 469; 2d dent. and discuss 348 P2d 214 are interesting However, are while these cases inapposite. equal protection, they are The issue in the instant case is whether prosecutor felony under a can a defendant where statute rather than a misdemeanor statute question proscribed by clearly the act in both question to the statutes and where there is no validity Calvaresi, In the court of either statute. declared one statute to be unconstitutional because v Ford Opinion of the Court felony it created a out homicide, of a "reckless” whereas another statute created a misdemeanor "negligent” homicide, out of a since the distinction "negligent” only between "reckless” and was se- Hagge mantic. In Collins, the two courts held that the statutes under which the defendants were charged repealed by implication by were other special relating statutes to the same In conduct. Pirkey, the statute was declared unconstitutional only up because it defined one crime but left it jury magistrate penalize it as a misde- felony. meanor or a But see Klamath Falls v (1980) (the Winters, 289 757; Or 619 P2d recognizes court in effect that Batchelder overrules Pirkey). Zornes, In the court held that a misde- decriminalizing marijuana, meanor statute which passed pending was while the case was before- the controlling court, was retroactive and rather than prior marijuana the narcotic statute which defined as a drug

drug possession and made of such a felony. cases, In all these was precluded particular from under a stat- ute, prose- not because of limitations of the law of cutorial discretion, but because statute charged was invalid for one reason or another. argue The defendants also that there has been illegal application invidious discrimination in the larceny of the statute and hence a equal protection denial of under the doctrine of Hopkins, supra. Yick they Wo v In have argument, been innovative in this statistical but they unacceptable gaps develop- have left in their ment of it. determining

The criterion to be used in whether felony of a rather than a misde- equal protection meanor violates because of invidi- 417 Mich 66 op the Court two-prong of inten- test is discrimination ous purposeful United discrimination. tional (CA 8, 1205, Swanson, 1208-1209 509 F2d States v 1975). the defendants First, it must be shown prosecution "singled” while others for out were similarly prosecuted for the not situated were Second, it must be established conduct. same prosecution discriminatory in was selection this impermissible ground race, such as on an based religion a fundamental sex, right. the exercise of (CA Larson, 612 F2d 1301 States v United cert den 1980), 446 US 936 asking respond by Court to this The defendants following in facts. In 1977 take notice many States, whites were arrested twice as United percentage larceny-theft The as were blacks. per- 11.7 States is in the United blacks centage Michigan the national 11.2. Since in is category for this is of arrests of whites number more than twice that blacks, con- it must be many as than twice as whites cluded that more Michigan. category in for this blacks were arrested disparity greater than two-to-one Given the arrests, application racially they neutral claim a many whites result in twice as the statute would being charged felony, and, thus, twice with the category. go prison many for this whites should Michigan of those racial There are no statistics building. However, incarcerated for Michigan prison composition because the system 30, 1978, as of June was white 38.5% the ad- black, conclude that the defendants 56% sentencing larceny statutes for the ministration of discriminatory. racially interesting attempted have an defendants dug deeply they analysis, have not method of but People v Ford 103 Opinion op the Court enough. Perhaps better articulated and more might connected logically analysis show some of is, it objectives. their But as they ask us to take a in quantum leap equal protection based analysis assumptions non-sequitur on unproven statis Thus, test, two-prong tical inferences. under the defendants have not shown that they have prosecution. out for But singled impor been more tantly, prong, they second have not governmental purpose shown a to discriminate In statutory this neutral scheme. the absence of a discrimination, to cause racial purpose governmen disproportionate tal action that has a effect on a minority racial is not unconstitutional. Such an an may permit effect inference of an unlawful but, alone, it is not conclusive purpose, standing governmental on the whether question activity See, e.g., Arlington racially discriminatory. Heights Metropolitan Housing v Development 252, 265; Corp, 555; US 97 S Ct 50 L Ed 2d Davis, (1977); Washington 229, 242; US S (1976).11 2040; L Ct 48 Ed 2d 597 Additionally, argue the defendants an equal pro- tection violation they because view the two lar- ceny duplicative statutes to be in proof, allowing to create an or discrimi- arbitrary See, e.g, natory classification of defendants. Com- ment, Prosecutorial Duplicative Discretion Statutes Setting, 42 U L Colo Rev 464-465 (1971). Actually, the two statutes under considera- tion, strictly speaking, do not fall within the defi- "duplicative”. nition of According to the Colorado Comment, Law Review an example "duplica- requirement purposeful equal The same discrimination protection analysis allegations must also be shown where there are sex discrimination. Personnel Administrator of Massachusetts v Fee- 256; 2282; ney, 442 US 99 S Ct 60 L Ed 2d 870

104 66 417 Mich Opinion of the Court proscribes "one statute is where tive” situation 'possession marijuana, LSD, or heroin’ as a of proscribes 'possession felony, and another statute marijuana’ misdemeanor, and if the re- as a of quirements prosecutor proof placed on the

of are under the harsher statute a conviction sustain not more L Rev 462. severe”. Colo are not in the instant case The two statutes duplicative hand, the the one in that sense. On general larceny the unlawful steal- statute makes intangible personal property ing tangible prop- if the value of such another a misdemeanor erty 750.356; MCL one hundred dollars. is under larceny hand, 28.588. the other MSA On elements of the lar- includes the impor- ceny statute, one more it also includes but requires proof requirement, i.e., the statute tant stealing beyond the oc- a reasonable doubt any dwelling house, trailer, office, house curred "in Thus, 750.360; 28.592. the MCL MSA [or] store”. Legislature it clear that before a certain has made felony, be defined as class of will stealing place in one of the enumerated must take Legislature wisdom, has structures. In its taking property permanent such viewed the activity. We structures to be more serious criminal arbitrary or discrimi- cannot hold its action to be Supreme natory. Furthermore, Court stated supra, Batchelder, 442 US 125: appreciable no difference between is "[T]here deciding whether prosecutor discretion a exercises when different statutes with to elements and the discretion he exercises under one two choosing when In the elements. one of two statutes with identical situation, will proof that the former once he determines statute, his decision support conviction under either in the latter indistinguishable from the one he faces People v Ford Opinion of the Court context. may be penal- influenced upon conviction, ties fact, available but this standing alone, give does not rise to a violation of Equal Protection or Due Process Clause.” find reasoning We the same persuasive, to be we hold that the exercise of discretion in these per cases does not Equal se violate the Protection Clause under either the federal or Michigan Con- e.g., Brown, United States v See, stitution. 602 F2d (CA 9, 1979), cert den State (1980); US 966 Weiner, 454; State v 1980); Klamath Falls v 126 Ariz 914 (1980); P2d Watts, (Mo, 601 SW2d 617 Winters, Strick- 757; 289 (1980); Or 619 P2d 217 State, land v 17; 276 SC 274 430 (1981); SE2d State, Mack v 93 287; Wis 2d 563 NW2d Karpinski, (1980); State v 599; 92 Wis 2d (1979). NW2d 729

VII. Cruel and Unusual Punishment Both argue defendants that their sentences are invalid because they constitute cruel and unusual punishments. However, neither argued defendant point this in the Court of Appeals, nor raised it in his application for leave to appeal to this Court. In the Gonzales case, prosecutor has argued that the matter is not properly before this Court and People Tyler, therefore v should not be considered. 564, Mich 571; (1977). 250 NW2d 467 in Howard did not respond at all. The rule certainly is that when a matter is not properly raised this Court will not consider it. Occasionally, this Court does make an exception where the matter is particularly significant involves a miscarriage of justice. See Snow, Mich 591; 194 NW2d 314 significant Here the question prose- is whether 417 Mich 66 Opinion op the Court his discretion can exercise cutor gen- building felony than the rather in a question larceny misdemeanor, and this is eral arguments princi- have and oral the briefs pally Furthermore, both defendants addressed. statutory limits and both within were sentenced prior felony therefore records. We had defendants depart rule. from our see no reason VIII. Written Prosecutorial Standards legal claiming no that there were In addition to guide prosecutorial discretion, defen- standards dants decried in most example, charging policies

the lack of written prosecutors’ brief, offices. The Gonzales "The lack of formal

states: only policies shoplifting not a violation cases is process, of the American it is a violation of due Standards”. Bar Association argument Nothing way advanced parties precedent by convinces us that the lack although process, guidelines later violates due of argument might course, not sit to do so. we do Of Nevertheless, im- we are enforce ABA standards. charging guidelines might conceivably pressed proper subject worthy be a of consideration promote ad- fair and uniform forum ministration of have order to justice, we, course, in which responsibility. a decided interest and Michigan might prosecutors take the do well to developing guidelines initiative in their own prosecutorial the edly Undoubt- exercise of discretion. Attorney Association, Gen- the State Bar experts avail- eral and other in the field would be prose- assistance, if, when, able to render help this useful. While cutors would find such People v Ford Opinion of the Court Court sees no immediate reason for it to be in- any capacities, volved in this action in of its it is beyond possibility proper that, not under doing present, at a time and

appropriate might circumstances, it consider any event, so. In that, it believes for the properly prose- the initiative lies with the cutors.

IX. Ineffective Assistance of Counsel Howard, In the defendant asserts that he was denied Factually effective assistance of counsel. the record shows that on at least one occasion he go was scheduled to postponed. poenaed to trial and that date was occasion, On that defendant had sub- appear two witnesses to in his behalf. On the next date, scheduled trial he exercised his right jury part way through trial, to a but voir plead guilty charged dire he elected to offense as the sentence of one to the prosecutor agreed to recommend a year. judge began explaining rights

The trial giving up pleading guilty. defendant was In explaining right compulsory the defendant’s process, judge engaged following the trial in dialogue with the defendant: ’’The Court: You right have a your to call own you witnesses if any, have you and if any had difficulty in obtaining presence, their the court you. would assist youDo understand that? ’’Defendant Howard: Would you say again, sir, please? ’’The Court: right You have to call witnesses on your own behalf.

’’Defendant Howard: Uh-huh. ’’The Court: they And if refused to attend these hearings, then the court presence. would order their Mich op the Court sir, true, they will order it Is Howard: "Defendant show? they must and presence their go jail. Or "The Court: Well, I—that’s the Yes, like sir. Howard: "Defendant show. didn’t My witnesses your Honor. problem, offering you are is the reason And that "The Court: plea? Yes, sir. Howard: "Defendant are the witnesses? Okay. Where "The Court: at work jobs. had One They both Howard: "Defendant forgot I the the job. some other at the other work Fords other other arrested county here on We was work at. where he place get I Then them. they postponed days two in the and I been parole, for violation jail since then. their names? you have right. All Do Court:

"The sir, Yes, got names. I their Howard: "Defendant their names? are "The Court: What Walton Mr. Kenneth "Defendant Howard: Mr.— Kenneth?

"The Court: Yes. Howard: "Defendant last name? is the Court: What "The Walton. Howard: "Defendant Walton? "The Court: Yes, sir.

"Defendant Howard: you do address —or is their And what "The Court: know their address? sir, ad- No, know their I don’t "Defendant Howard: James, stay he on— I know Mr.

dress. his (Interposing): What is Court name? "The A1James. Howard: "Defendant "The Court: A1James? Yes, sir. Howard:

"Defendant right. All "The Court: problem, I another And have Howard:

"Defendant your Honor. live? Mr. James does

"The Court: Where Du- on in Inkster He—he live Howard: "Defendant rand, I’m not for sure. I believe. Ford Opinion op the Court Well, Howard, “The Court: Mr. I indicated that we in, can order them but I cannot order them if I don’t know where I can you find them. Do know they where work?

“Defendant Howard: Mr. James work at Ford Motor Company, Truck Plant.

“The Court: Where is that? Wayne Michigan

“Defendant Howard: In on Avenue. Walton, employed Mr. let me see. He is it? at —what is program, In the CETA I think. you “The Court: Do you know where don’t know he—

where, though? No, “Defendant Howard: But sir. both of them work them, they know, had you you to have what call them, subpoenas carry last time to job back to the with stating why. them They “The Court: voluntarily time; came the last right?

that “Defendant Howard: No. I served them with a sub- poena through my attorney they came the last time. And the second time the court date was set— (Interposing):

“The Court you How did serve them? “Defendant Howard: She sent me a letter in the mail telling me it money cost Wayne County have the Sheriffs serve warrants on witnesses and that I could myself serve them by taking— “Ms. No, Hetmanski (Interposing): I [defense counsel] beg to I you differ. said should not it yourself, serve have a friend or yours relative of serve defendants [sic].

“The Court: they Were served? Yes, sir,

“Defendant Howard: they was. Well, “The Court: you where did serve them? “Defendant I Howard: found Mr. Walton at home and I seen Mr. A1 house. I forget her girl James —Aaron James at his friend something name —it’s Louise —her last then, name. know, And since you working I been I and was in hospital, got and then I incarcerated. Well, “The Court: law, principle is a Ias told you, but I anything can’t do I they unless know where are. We are at trial date now. 417 Mich Court talked your mother You said Hetmanski: "Ms. morning? them this Yes. Howard: "Defendant me, I talked to them —excuse "Mother of defendant: them. I called a while night, one of your Honor—last lines. You can check. on both ago there is trouble Ma’am, they live? you know where do "The Court: don’t, sir, No, I I don’t. "Mother of defendant: phone get their number? you did "The Court: How gave me the card By my son of defendant: "Mother Now, night. them called last morning, and one of this lines, wrong something it’s yourself, both you can check just I came the card here because them. I have with hallway. from the Honor, forget it. I just Your "Defendant Howard: it building, whatever larceny from the accept is. plea Well, anything, you I to do don’t want "The Court: know, Howard, You you are not satisfied with. Mr. if this consequences certain plea taken there will be is you so are the only you, affect to it and it will person very easily I can has to make the decision. who it, go with way you want I’ll on say okay, if that’s the offense, charged I not with this the business. But am something you are, you to do that you and I don’t want ought you that to do. don’t feel "Now, to me that but for you have indicated go I have you would to trial. absence of these witnesses indicated to criminal case is to insist and has situation where we had John Jones function you part that of the court’s powers it use whatever Now, dealing in a bring to them in. if we were

who lived at sitting just whatever street and he was at home said, there, I don’t care simply going 'I’m not down difficulty with happens,’ I what that. would ask then would have no of his dispatch I the officer to one him, bring him in. officers out there and arrest difficulty here be- difficulty, "We have some a little today. for trial All the witnesses cause we are scheduled for the in the hall now and we sitting out people jury have a are here and we ready go. And then to are people, but the names of two addition to that we have People v Ford Ill op the Court get exactly, we don’t know where to presents them and so that problem. suppose "I obvious answer to that would have this, been if brought we had known about if it were to you the attention of the court that who had two witnesses you thought defense, were your material you we could come, talked and they with them refused to then with it effectively have dealt more than we today. you. can is here to But I want to don’t foreclose This court protect people, part my and that respon- sibility, and the law determines in those areas where I obliged protection am people to afford to who are in your charged circumstance with an offense.

"Now, given you have me some information. I don’t can know what else I more do with it. I would like to have you you to do what want to be If done. cannot give that if that to me or cannot be found in a reason- time, ably period give short then I have to some equal tion to people, give consideration some considera- people, disposed because matters have to be of. Yes, Well,

’’Defendant Howard: sir. I believe the simplest thing I plea, is—I need that to take madam. supposed say. don’t even what know it’s Honor, "Your to the due circumstances and the other trial, problems unforeseen that we have in this I am prepared forth have plea accept that the and so

set forth me to take. right. ’’The Court: doing All And are you freely and voluntarily, Mr. Howard? Yes, sir, Howard: your Honor.

’’[Defendant] ’’The doing Court: are not anything You it because your but decision? my ’’Defendant Howard: It’s decision.” The defendant believes that the facts on the record indicate that he was denied effective assis- (1) attorney tance of counsel because his failed to arrange presence for the of defense witnesses (2) plead guilty, which forced him to his attorney to failed ensure that the defendant re- 417 Mich 66 op the Court promise prosecutor’s of the the ceive benefit year. of one a sentence recommend 436, 443; 212 Ginther, Mich In (1973), held this that where Court NW2d adequacy rep- person attacks the convicted resentation prove trial, his he must he received at depends on facts "To extent claim the his claim. him record, on to make it is incumbent not of in con- court level record at the trial testimonial evi- a new trial which with a motion for nection dentially supports his claim and which excludes hypotheses trial with the view that his consistent adequately.” represented lawyer him claim is contends his While the defendant agree. supported record, we not facts the do on recoid how is indication in the There no testimony going of his to use defendant was example, tell For we cannot at they trial. witnesses and, if alibi were alibi witnesses whether witnesses, proper In notice filed.12 was whether testimony may addition, have been cumulative given Thus, on a collateral matter. in nature or attorney any in ensur failure the defendant’s presence may ing harmless their have resulted in error. part

Finally, claim arises because defendant’s years to 4 for the he was sentenced to from 2-1/2 offense after his had breached sentencing. promise year at recommend one part trial This his claim moot because the judge pro has entered a nunc tunc correction amending years. sentence, it to 1 to from hearing evidentiary short, fur- In without an develop record, we cannot deter- ther facts on the adequacy representation mine the accorded 768.20; provision notice for alibi is found at MCL witnesses 28.1043. MSA People v Ford Opinion of the Court attorney. Ginther, defendant his supra, 443. by Although we have the inherent authority to order a Ginther hearing, we will not do so because the defendant has not made the prerequisite showing or laid down the proper foundation at the trial level needed to determine whether an evidentiary v hearing is appropriate. People Michael An- See Williams, thony 391 Mich 832 See also Moore, 431; Mich 216 NW2d 770 (1974). Moreover, disposition our of this issue does not prejudice the right proceed defendant’s manner consistent with the case law discussed above.

Conclusion We hold that where a felony statute and a misdemeanor statute both particular include crim- misconduct, inal it lies within the discretion of the prosecutor a defendant under the felony statute rather than statute, the misdemeanor that where a violation of a constitutional right charged, this Court has jurisdiction to review the exercise of that Furthermore, discretion. it is clear that in these matters there was no deprivation of process due or equal protection and that the ques- tion of cruel and punishment unusual was not properly raised for consideration. without Finally, prejudice Howard, to defendant pres- we find that ent counsel failed to seek a Ginther hearing there is an inadequate record in the Howard case to review the claim of ineffective assistance trial counsel.

Affirmed.

Fitzgerald, C.J., and Ryan, JJ., Coleman and Williams, concurred with J. Mich Dissenting Kavanagh, J. involve (dissenting). These cases

Kavanagh, J. dis- abuses his whether question the circum- felony cretion charged could be conduct identical stance a misdemeanor. such permits which system that a satisfied I am equal protection a denial allows procedure Michi- United States the under both the law gan Constitutions. justify advanced to arguments usual

I the reject practice. the of- constituting the conduct Assuming Legisla- to the identical, ascribe I cannot is fenses law enforce- selective allow such intent to ture an to it if such effect ment, agree give nor indeed be divined. intent claim that

Likewise, unacceptable find I a basis proper is of the defendant record criminal charge. in the distinction for treat- that different conviction only It after the same offensive distinct instances ment for has en- Legislature justified. be may conduct pro- specifying statutes criminal acted habitual No for recidivism. punishment greater gressively a impose authority judge’s questions one of a range statutory within penalty heavier of the to the circumstances according sentence Approval of the offender. crime or the character however, conviction, after punishment different identical charges different will not sanction conduct before conviction. statutes, MCL cases, I would read both

In these 750.360; MSA 750.356; and MCL MSA 28.588 the value 28.592, according to require charging not did the value stolen. Because property be could $100, a misdemeanor only exceed $100, felony exceeded Had the value charged. v Ford Dissenting Opinion Levin, J. charged according be to where the crime could store, If such offense was in a place. only took could be Had such felony charged. offense 4-year place, occurred in some other the 5-year felony applicable. would have been case, In I each would reduce defendant’s convic- tion to a misdemeanor and remand for resentenc- ing.

Levin, J., Kavanagh, concurred with J. Levin, (dissenting). I signed J. have Justice Kav anagh’s I opinions these cases because am in accord with his view in Ford that prosecution for a credit card crime must brought be the more credit card specific statute1 and not under a false instrument statu te,2 Gonzales and Howard the prose cutors misused their charging power when they charged Gonzales and Howard with building3 rather than larceny under $100.4

I The several government branches are not sovereign entities. The separation powers is not absolute. government The powers. is one of shared The lines demarcating powers of the several branches are not absolutely powers defined. Their are restrained by the checks and balances of the powers of the other branches.

A prosecutor delegated power; exercises his 255, 28.354(13)-28.354(20). 750.157m-750.157u; 1 1967 PA MCL MSA 2 750.249; MCL MSA 28.446. 3 750.360; MCL MSA 28.592. 750.356; MCL MSA 28.588. Mich 66 Dissenting Opinion Levin, J. provided by powers law”,5 that be shall "duties and Legislature. say, by in which power The manner is to delegated legislatively he exercises subject judicial review. to

II Legislature has for some offenses While may repeat provided or be offenders shall provided severely, punished it has not so more improper shoplifting card. In use of credit or (a 90-day converting larceny meanor) misde under $100 (a 4-year felony) larceny in a (a converting improper use of a credit card and 4-year felony) (a 14- prosecutions felony) year for the into alternative prosecutor effect, has, misconduct, same giver or law as made himself the definer doing, he the law. In so has the enforcer of well as authority or could which has been exceeded properly given him.6 be discretion. The has a broad may refuse to in the exercise of that discretion He agree all, from divert an offender at aspects justice system, or all of the criminal some appro- upon the facts the choose an assessment of plea guilty priate charge, exchange for a accept plea or make consent to to a lesser offense regarding the sentence or both. recommendations preliminary and the motion for The examination 7, 1963, 4. Const art § Legislature constitutionally local laws could not authorize shoplift making felony part and a misde- it a in one of the state 4, 29. meanor in another. Const art § People v Ford by Dissenting Opinion Levin, J. safeguard against charge a not directed verdict supported. Judicial involvement factually safeguard is a in the taking guilty plea plea- of a Persons diverted from the bargaining process. have little cause justice system generally criminal complaint. decisions are not on an Where based of the facts of the offense on assessment but other considerations, is, safeguards, there absent a dan- ger of to set a minimum judge’s power abuse. sentence or to an offender on place probation is safeguard against not a of the charging misuse power in the instant cases where the difference for prison those sentenced to is between a maximum sentence of 90 or 4 days years or between a maximum sentence of 4 years or years.

It is for Legislature to decide whether grade shoplifting improper use of a credit card based on the commission of A prior prose offenses. cutor grading cannot create a lawfully system of his If own.7 the laws are inadequate, prosecutors should seek legislative revision and thereby at tempt to obtain to do what think authority they required enforcement, for sound law and not charge the same misconduct under different stat utes in accomplish order by indirection what Legislature has not specifically authorized. legislation

Absent authorizing prosecutor charge a repeat pen- offender an with increased prosecutor may A see offenders who have not been deterred who, judgment, stronger misdemeanor in his need a dose charge. point disagree, My than another misdemeanor that I is not system government, but rather that it is not his choice. Under our Legislature it is the which makes the and the who laws enforces or declines to enforce them. 417 Mich by Dissenting Levin, J. authority proper beyond

alty, to do so.8 his it is against safeguards provide such should The courts law-making power by refus on the encroachment prosecutor ing the same to to allow a statutes.9 under different misconduct (and delegated Legislature I has not the Because delegate) to a could disinclined to believe am prosecutor prosecutors authority grade offenses, the bound whatever should be deemed place they the statutes. on construction shoplifting generally prosecutors characterize If signing building larceny or a a in a as $100 slip improperly charged to a credit card as sales they statute, should not of the credit card violation be heard to characterize it ad hominem building may be, or, case in a publishing. as the shoplift persons All who slip charged improperly sign a sales to a or so charged the lesser be with credit card should offense or greater offense. with might charge every- recognize prosecutors I bargain greater plea offense and then one with for the lesser offense might ad hominem. That prosecutors decide in the first would be for Legisla- instance and then for the courts and the ture to consider. part Riley, J., decision of these took no cases._ improper similarly It would for the to consider be charged

crimes of which has neither been nor convicted. the accused Ford, prosecutor’s appears In it that a consideration that entered charge uttering that Ford was sus- decision to pected was purchases. of numerous fraudulent credit card 115; Judge, In v Genesee Circuit 391 Mich Genesee Prosecutor (1974), Judge, Circuit NW2d 145 and Genesee Prosecutor v Genesee 672; (1972), sought court 386 Mich 194 NW2d 693 the circuit prosecutor. substitute its own evaluation of the facts for that of notes when one the detail and specificity of the new offenses which are included. Legislature’s failure to address the act specifically misusing of a credit involving card a in of forgery its list credit card misuse felonies indicates the omission was deliberate. This is made even clearer by the fact forgery committed any person to whom a credit card is presented is covered. MCL 28.354(20).6 750.157u; MSA Furthermore, it logical to reason that the Legislature general intended the forgery statutes to be applicable when misuse of a credit card includes, forged a sales slip. The additional forgery element makes the offense more culpable, thus justifying different pen- treatment and a harsher alty. Prior to the enactment of the credit card statutes, the act of presenting forged a credit card slip could have been punished as felony under 28.354(20): 750.157u; MCL MSA "Any person presents to whom a cardholder card for credit the purpose obtaining goods, property, anything of services or value on who, by forging aiding credit forgery or the in cardholder’s the signature by filling completing supplied by out or a form the issuer card, overcharged, the credit causes the to be shall be cardholder guilty felony.” of a Mich Opinion op the Court 4) (see fn or the forgery statute either 1). (see fn None of the statute card offenses listed credit specific felony clearly applicable card act is to the factual credit We thus of the instant case. conclude that scenario act, Legislature credit card passing more credit card misuse offen- specify intended felony which a than those cases ses as felonies was chargeable forgery because a be already could misuse credit card Accordingly, in those involved. left the Legislature a forgery, which include cases it the discretion within or the credit statutes either card statutes. LaRose, 87 is unlike The instant case den Iv (1978), 298; 274 NW2d 45 App Mich

Case Details

Case Name: People v. Ford

Court Name: Michigan Supreme Court

Date Published: Apr 8, 1987

Citation: 331 N.W.2d 878

Docket Number: Docket Nos. 64572, 64965, 65235. (Calendar No. 8), (Calendar Nos. 7, 8)

Court Abbreviation: Mich.