PEOPLE v. FORD

PEOPLE v FORD

FITZGERALD, C.J., and WILLIAMS, COLEMAN, and RYAN, JJ.

This opinion was written by Justice BLAIR MOODY, JR., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.

On November 6, 1978, defendant pled guilty to a charge of uttering and publishing a false instrument or other writing. MCL 750.249; MSA 28.446. Defendant was sentenced to a minimum of 4 and a maximum of 14 years imprisonment to be served consecutively with a sentence defendant was already serving.

MCL 750.249; MSA 28.446:
"Uttering and publishing forged instruments —
"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years."

Following an appeal of right to the Court of Appeals, that Court set aside defendant's conviction, holding that it was an abuse of prosecutorial discretion to charge defendant under the general uttering and publishing statute when, on the facts presented, there existed a more specific charge, misuse of a credit card. MCL 750.157q; MSA 28.354(16). People v Richard Ford, 95 Mich. App. 412; 291 N.W.2d 60 (1980).

MCL 750.157q; MSA 28.354(16):
"Any person who delivers, circulates or sells a credit card which was obtained or is held by such person under circumstances which would constitute an offense under sections 157n or 157p, or uses or permits or causes or procures the same to be used, delivered, circulated or sold, knowing the same to be obtained or held under circumstances which would constitute an offense under sections 157n or 157p, shall be guilty of a felony."

This Court granted leave to appeal to determine the impact of the credit card protection act on the issue of whether an accused who forges a credit card slip is properly chargeable with uttering and publishing, and whether the prosecutor abused his discretion in charging the defendant in the instant case under the uttering and publishing statute.

We hold that the credit card statutes do not preclude charging an accused with uttering and publishing when a credit card slip is forged and that, on the facts of this case, there was no abuse of prosecutorial discretion. The Court of Appeals decision is reversed and defendant's conviction is reinstated.

FACTS

On July 22, 1978, defendant presented a Clark Oil credit card to the attendant of a Battle Creek area gas station. The card had been issued to the Calhoun County Action Agency in the name of Al Johnson. Defendant signed the name Al Johnson on the credit card sales slip and obtained $21.30 in cash from the attendant. Defendant's possession and use of the credit card were unauthorized. Defendant admitted that when he presented the card he did so with the intent to defraud the attendant.

Defendant was charged with uttering and publishing in violation of MCL 750.249; MSA 28.446. Defendant's guilty plea to the charge was entered pursuant to a plea agreement. Under this agreement, the prosecutor agreed to recommend to the court a 5- to 14-year sentence and further, that a supplemental information would not be filed. Defendant was sentenced to a 4- to 14-year term to be served consecutively to the sentence he was already serving.

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

I

There is no dispute that defendant's forgery of the credit card sales slip, combined with his presentation of the slip and his intent to defraud, constitutes the offense of uttering and publishing. People v Hester, 24 Mich. App. 475; 180 N.W.2d 360 (1970). On the facts of the instant case, defendant could also have been charged with misuse of a credit card, since defendant used the credit card knowing that such use was unauthorized.

Defendant contends that by its passage of the credit card bill, 1967 PA 255, the Legislature demonstrated its intent that all credit card crime would be controlled by this act's eight sections. Therefore, claims defendant, it was improper for the prosecutor to charge him with the general uttering and publishing violation when the more specific credit card statute was applicable.

Because there is no exclusivity provision in the credit card statutes, it is necessary to ascertain what effect the Legislature intended the current credit card statutes to have on other statutory violations.

The enactment of the present credit card statutes, MCL 750.157m- 750.157u; MSA 28.354(13)-28.354(20) in 1967 replaced the single credit card statute which had punished misuse of a credit card as a misdemeanor. MCL 750.219a; MSA 28.416(1). When this single credit card statute was in effect, the Michigan Court of Appeals decided two cases on point. In People v Hester, supra, the Court upheld the defendant's conviction of forgery of a credit card slip under the uttering and publishing statute. Although the issue whether Hester was properly charged under the general statute instead of the credit card statute was not directly addressed, the Court was cognizant of the issue. Hester, p. 483.

As enacted in 1961, this section read:
"Any person who knowingly obtains or attempts to obtain credit, or purchases or attempts to purchase any goods, property or service, by the use of any false, fictitious or counterfeit credit card, credit number, telephone number or other credit device, or by the use of any credit card, credit number, telephone number or other credit device of another without the authority of the person to whom such card, number or device was issued, or by the use of any credit card, credit number, telephone number or other credit device in any case where such card, number or device has been revoked and notice of revocation, as provided in section 219b, has been given to the person to whom issued, is guilty of a misdemeanor."

In People v Shaw, 27 Mich. App. 325; 183 N.W.2d 390 (1970), lv den 385 Mich. 760 (1971), the defendant was charged with forgery of a credit card slip contrary to MCL 750.248; MSA 28.445 and was convicted following a jury trial. Shaw's argument on appeal was the same as that advocated by defendant Ford in this case. Shaw contended that the prosecutor had abused his discretion in charging him under the general forgery statute when the statute concerning the unauthorized use of a credit card was available.

MCL 750.248; MSA 28.445:
"(1) Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.
"(2) The venue in a prosecution under this section may be either in the county in which the forgery was performed, or in a county in which any false, forged, altered or counterfeit record, deed, instrument or other writing is uttered and published with intent to injure or defraud."

While the Shaw Court acknowledged the "fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control", it found this rule not to be applicable because the two statutes did not cover the same subject matter. Shaw, p. 326. The actual forgery necessary to establish an offense under the forgery statute was not necessary to prove the offense of credit card misuse. Therefore, the Shaw Court held: "Where the specific credit card offense charged did not necessarily involve the same elements as a more general statutory prohibition, a specific credit card statute will not preclude prosecution or conviction under more general statutes." Shaw, p. 327.

We hold that the Shaw Court's analysis is still good law and is applicable to the case at bar. Defendant Ford could have been charged under the present credit card statute; however, his prosecution under the general uttering and publishing statute was not precluded. Violation of the credit card statute occurs whenever a credit card is knowingly misused, regardless whether a forgery is committed. When the facts of a given case indicate that the additional element of forgery is present, then the facts will support a conviction under either the general statute or the credit card statute.

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

First, all but one of the seven specific offenses delineated are felonies, compared to the prior single credit card offense which was a misdemeanor. This indicates the Legislature's intent to attach harsher penalties to credit card crimes. Forgery of a credit card sales slip or presentation of a slip was already a felony with a maximum sentence of 14 years. The punishment matrix developed by the Legislature in the credit card statutes was intended to complement the existing general felony statutes.

MCL 750.157s; MSA 28.354(18):
"Any person who, for the purpose of obtaining goods, property, services or anything of value, knowingly and with intent to defraud uses a credit card which has been revoked or canceled by the issuer thereof, as distinguished from expired, and notice of such revocation or cancellation has been received by such person through registered or certified mail or by personal service, shall be guilty of a misdemeanor if the aggregate value of the goods, property, services or anything of value is $100.00 or less, and shall be guilty of a misdemeanor punishable by a fine of not more than $1,000.00 or imprisoned not more than 1 year, or both, if the aggregate value of the goods, property, services or anything of value is more than $100.00."

In addition, a close analysis of the included offenses in the credit card act reveals that a substantive offense such as the one at bar was not specifically addressed. This is especially significant when one notes the detail and specificity of the new offenses which are included. The Legislature's failure to specifically address the act of misusing a credit card involving a forgery in its list of credit card misuse felonies indicates that the omission was deliberate. This is made even clearer by the fact that forgery committed by any person to whom a credit card is presented is covered. MCL 750.157u; MSA 28.354(20).

MCL 750.157u; MSA 28.354(20):
"Any person to whom a cardholder presents a credit card for the purpose of obtaining goods, property, services or anything of value on credit who, by forging or aiding in the forgery of the cardholder's signature or by filling out or completing a form supplied by the issuer of the credit card, causes the cardholder to be overcharged, shall be guilty of a felony."

Furthermore, it is logical to reason that the Legislature intended the general forgery statutes to be applicable when misuse of a credit card includes a forged sales slip. The additional forgery element makes the offense more culpable, thus justifying different treatment and a harsher penalty. Prior to the enactment of the credit card statutes, the act of presenting a forged credit card slip could have been punished as a felony under either the forgery statute (see fn 4) or the uttering and publishing statute (see fn 1). None of the specific felony credit card offenses listed in the credit card act is clearly applicable to the factual scenario of the instant case. We thus conclude that in passing the credit card act, the Legislature intended to specify more credit card misuse offenses as felonies than those cases in which a felony could already be chargeable because a forgery was involved. Accordingly, in those credit card misuse cases which include a forgery, the Legislature left it within the discretion of the prosecutor to charge under either the general statutes or the credit card statutes.

The instant case is unlike People v LaRose, 87 Mich. App. 298; 274 N.W.2d 45 (1978), lv den 406 Mich. 943 (1979), which held that it was an abuse of prosecutorial discretion to charge the defendant under the general false pretenses statute, MCL 750.218; MSA 28.415, instead of under the statute which prohibits delivery of an insufficient funds check, MCL 750.131; MSA 28.326. On the facts of LaRose, the defendant's only false pretense was his false representation incident to the giving of an insufficient funds check. Therefore, the Court concluded that LaRose should have been charged under the insufficient funds statute. The LaRose Court did acknowledge, however, that the presentation of an insufficient funds check if accompanied by additional false representation may justify conviction under the false pretenses statute. See, e.g., People v Vida, 2 Mich. App. 409; 140 N.W.2d 559 (1966), aff'd 381 Mich. 595; 166 N.W.2d 465 (1969), and People v Niver, 7 Mich. App. 652; 152 N.W.2d 714 (1967).

Since this case involves misuse of a credit card and the additional element of forgery, under the LaRose analysis defendant Ford could be charged under either the general statutes or the credit card statute. The case at bar is not a case in which two possible applicable statutes prohibit the same conduct. Rather it is a case where the statutory crimes are distinct.

This point was found determinative in People v Sanford, 65 Mich. App. 101; 237 N.W.2d 201 (1975), aff'd 402 Mich. 460; 265 N.W.2d 1 (1978). The Sanford defendants argued that it was an abuse of prosecutorial discretion to charge them with assault with intent to rob while unarmed, MCL 750.88; MSA 28.283, instead of with unarmed robbery, MCL 750.530; MSA 28.798. The Court rejected the defendants' claim that the two statutes prohibited the same conduct: "Because MCL 750.88; MSA 28.283 requires an assault as an element, and because MCL 750.530; MSA 28.798 requires either an assault or force and violence, the two statutes prohibit different crimes. The prosecutor properly has the discretion to charge defendants under either statute." Sanford, p. 105.

This same analysis applies to the instant case. The knowing presentation of a forged writing is a requisite element of the uttering and publishing offense. This element is not required to support a conviction under the credit card statute. Therefore, as in Sanford, the prosecutor has the discretion to charge under either statute.

See McDuffy v State, 6 Md. App. 537; 252 A.2d 270 (1969); McCrory v State, 210 So.2d 877 (Miss, 1968); Vannerson v State, 403 S.W.2d 791 (Tex Crim App, 1966); Shriver v Graham, 366 P.2d 774 (Okla Crim App, 1961).

II

Having found that the facts of this case support charges under both the uttering and publishing and the credit card statutes, we now examine the prosecutor's decision to charge under the general 14-year felony statute rather than the 4-year credit card felony statute to determine whether there was an abuse of discretion.

Prosecutors have broad discretion in determining under which of two applicable statutes to prosecute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 N.W.2d 693 (1972). However, that discretion is not unlimited. Bordenkircher v Hayes, 434 U.S. 357, 365; 98 S Ct 663; 54 L Ed 2d 604 (1978). This Court can review and correct an abuse of discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115, 121; 215 N.W.2d 145 (1974). It is the danger of arbitrary and discriminatory law enforcement that must be protected against. The record of this case adequately supports the prosecutor's exercise of his charging discretion. The facts do not support a finding of arbitrary or discriminatory charging.

The Court of Appeals finding of prosecutorial abuse was based on considerations of the maximum penalties, 4 and 14 years, of the two possible chargeable offenses and the relatively small sum of $21.30 obtained by the defendant. Although these factors may properly be considered, they constitute an insufficient basis on which to find abuse of prosecutorial discretion. Other factors which should be considered include the circumstances under which the crime took place, such as the offender's role in the crime and his motive, and factors personal to the particular offender, such as age and general background.

See American Bar Association Project on Standards for Criminal Justice, The Prosecution Function, Standard 3.9 and commentary.

Prior to the issuance of the warrant in the instant case, the prosecutor considered several factors before making his decision to charge under the uttering and publishing statute. In examining the nature of the crime involved, as discussed in Part I, the misuse of a credit card included the additional element of a forged credit card slip, making the crime even more culpable. Also, the police report indicated that the defendant had made numerous fraudulent credit card purchases between June 23, 1978, and July 23, 1978, on a Calhoun Community Action Agency credit card at a Battle Creek Clark gas station. A review of the credit card slips involved in these purchases indicated a loss of more than $1,500.

We are not here considering whether such information could properly be used at trial or considered at sentencing.

Furthermore, in considering the personal factors of this particular defendant, the prosecutor was confronted with a 34-year-old suspect with an extensive criminal record which spanned the past 17 years. We find adequate justification for charging defendant with the greater offense.

The record reflects the following history of defendant's convictions:
" Date: County: Offense:

"12/2/61 Kalamazoo Unlawful driving away automobile "1/31/64 Kalamazoo Larceny from a building "7/20/66 Kalamazoo Non-support "11/13/67 Kalamazoo Soliciting "3/4/68 Kalamazoo Larceny under $100 "7/11/68 Kalamazoo Larceny by conversion "1/6/71 Kalamazoo Attempted larceny by trick "3/24/71 Calhoun Concealing stolen property "9/23/72 Calhoun Unlawful driving away automobile without authority but without intent to steal, CT. II "2/15/74 Kalamazoo Larceny by conversion "7/25/74 Calhoun Larceny under $100 "8/14/74 Calhoun Larceny by conversion "3/10/75 Calhoun Larceny by conversion "11/17/75 Calhoun Larceny under $100 "12/13/76 Kalamazoo Contempt of court "3/31/76 Calhoun Felonious assault "4/12/76 Calhoun Larceny under $100 "7/1/76 Kalamazoo Larceny from a building "3/7/77 Calhoun Larceny in a building".

CONCLUSION

Accordingly, the Court of Appeals decision is reversed, and defendant's conviction under MCL 750.249; MSA 28.446 is reinstated.

FITZGERALD, C.J., and WILLIAMS, COLEMAN, and RYAN, JJ., concurred.

FITZGERALD, C.J., and WILLIAMS, COLEMAN, and RYAN, JJ.

PEOPLE v GONZALES PEOPLE v HOWARD

WILLIAMS, J.

The basic issue in this case is what discretion, if any, prosecutors have to charge a defendant with the felony of larceny in a building rather than with the misdemeanor of general larceny, when items under $100 in value are stolen from a store. The additional critical requirement in charging the felony is that the misconduct take place in a building.

MCL 750.360; MSA 28.592. See fn 3 for text.

MCL 750.356; MSA 28.588. See fn 3 for text.

The general larceny statute defines theft to be a misdemeanor if the value is under one hundred dollars and a felony if over it. MCL 750.356; MSA 28.588 provides:
"Sec. 356. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than $2,500.00. If the property stolen shall be of the value of $100.00 or less, such person shall be guilty of a misdemeanor."
The provision under which the defendants were charged makes a theft in an enumerated structure like a store a felony regardless of the value of the property taken. MCL 750.360; MSA 28.592 states:
"Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony."

The prosecutors argue in limine that the exercise of such discretion is immune from judicial review except for discriminatory and intentional prosecution on the basis of such criteria as race, religion or penalizing the exercise of a constitutional right. They base this immunity on the constitutional separation of powers. However, they further argue that if this Court finds grounds for review, their discretion to choose between two applicable statutes is recognized by this Court, for example, in Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 N.W.2d 693 (1972), and by the United States Supreme Court in United States v Batchelder, 442 U.S. 114; 99 S Ct 2198; 60 L Ed 2d 755 (1979).

Defendants, for their part, maintain that the Legislature did not intend "to have the larceny in a building statute applicable in shoplifting cases", relying on People v Carmichael, 86 Mich. App. 418; 272 N.W.2d 667 (1978). Furthermore, defendants argue that if the Legislature did intend a statutory scheme permitting a prosecutor to charge petty shoplifting as either a felony or a misdemeanor, such legislation is unconstitutional for three reasons. First, it lacks due process for failure to provide adequate clarity to notify the defendant of standards to govern prosecutorial discretion. Second, it denies equal protection, because it gives unguided discretion to the prosecutor to charge the same acts as either a misdemeanor carrying a 90-day penalty, or a felony carrying a four-year penalty. Third, permitting a four-year penalty for petty shoplifting is cruel and unusual punishment. In the Howard case, defendant also claims that he lacked effective assistance of counsel.

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

"The rule articulated by most federal and state courts is that the prosecution violates the defendant's equal protection rights * * * only when `the government's discriminatory selection of him for prosecution has been invidious or in bad faith * * *." Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing an Ideal, 49 Geo Wash L Rev 659, 661-662 (1981).

People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). — REPORTER.

I. FACTS

A. People v Gonzales

On November 10, 1977, the defendant was arrested in Belscott's Department Store, where it was alleged that he stole a shirt and two pairs of slacks. On November 12, 1977, a warrant was issued charging defendant with larceny in a building, MCL 750.360; MSA 28.592. A preliminary examination was conducted on November 22, 1977.

According to the testimony of the store security guard, defendant and an accomplice secreted a shirt and two pairs of slacks in a paper bag while inside the store. When confronted at the store exit, defendant refused a request by the guard to inspect the bag. Defendant broke away and ran, leaving the bag behind. Shortly thereafter, the police apprehended the defendant and returned him to the store. On December 5, 1977, defendant was arraigned on the information in Berrien County. Several weeks later, a supplemental information was filed charging defendant as a prior offender because of a previous conviction of larceny in a building.

In January of the following year, the defendant pled guilty in exchange for the prosecutor's promise to forego prosecution on the supplemental information. He was sentenced to a term of from 2 1/2 to 4 years imprisonment. He appealed to the Court of Appeals, which affirmed his conviction in an unpublished per curiam opinion.

We granted defendant's application for leave to appeal on November 20, 1980. 409 Mich. 945 (1980).

B. People v Howard

On September 8, 1978, defendant was arrested in a Spartan Atlantic Department Store with a codefendant for stealing three pairs of pants. Defendant was charged with larceny in a building. He exercised his right to a jury trial, but part way through voir dire he elected to plead guilty as charged, allegedly in exchange for the prosecutor's agreement to recommend a minimum sentence of one year.

The trial court in Wayne County accepted the plea and sentenced defendant to from 2-1/2 to 4 years imprisonment. While the case was pending on appeal before the Court of Appeals, the trial court signed a nunc pro tunc correction of sentence which amended it to from 1 to 4 years. The Court of Appeals issued its opinion affirming defendant's conviction.

We granted defendant's application for leave to appeal on November 20, 1980. 409 Mich. 945 (1980).

II

We first consider plaintiffs' contention that "the prosecutor's election to charge the higher of two applicable statutes is not subject to judicial review". It is true that under the doctrine of constitutional separation of powers each branch of government is sovereign in its own sphere. Const 1963, art 3, § 2. However, it is basic law that the authority to determine the parameters of power to be exercised by each branch is vested in the courts. Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 135 (1803). This authority "is an awesome power and responsibility and must be exercised both courageously and with understanding and restraint". Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 675; 194 N.W.2d 693 (1972). The self-imposed principle of judicial restraint must yield, however, when, as here, the activity of the executive branch is alleged to be unconstitutional, illegal, or ultra vires. See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115; 215 N.W.2d 145 (1974); Detroit v Wayne Circuit Judge, 79 Mich. 384; 44 N.W. 622 (1890). We therefore proceed to determine what discretion, if any, a prosecutor has in the matter at hand.

Berrien County Prosecutor's brief. The Wayne County Prosecutor's brief phrased it differently: "It is a violation of the separation of powers doctrine for a court to review a prosecutor's exercise of charging discretion absent a showing of selective use of suspect criteria."

III. PROSECUTORIAL DISCRETION

The prosecutor is the chief law enforcement officer of the county. His office is recognized in the constitution. His duties and powers are established by statute. We commented on the prosecutor's broad discretion in the determination on which of two statutes to base a charge in Genesee Prosecutor v Genesee Circuit Judge, supra, 386 Mich. 683, as follows:

Const 1963, art 7, § 4 which provides:
"There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney whose duties and powers shall be provided by law."

MCL 49.153 et seq.; MSA 5.751 et seq.

"We have held in the past that the prosecutor is the chief law enforcement officer of the county and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be instituted. People v Lombardo, 301 Mich. 451, 453 (1942); People v Thrine, 218 Mich. 687, 690, 691 (1922); People v Mire, 173 Mich. 357, 364 (1912). See also People v Graves, 31 Mich. App. 635, 636 (1971); People v Eineder, 16 Mich. App. 270, 271 (1969); People v Byrd, 12 Mich. App. 186 (1968), concurring opinion of LEVIN, J., 197, particularly fn 7; People v Ryan, 11 Mich. App. 559, 561 (1968)."

In this 1972 Genesee Prosecutor case, the circuit judge, against the will of the prosecutor, granted the defendant's motion which allowed him to plead guilty to unlawfully driving away the automobile of another in lieu of the more severely penalized felony, possession of a motor vehicle known to be stolen, which the complaint had charged. We held that the court could not do this and that the prosecutor had discretion to charge under the statute of his choice, but limited our decision to the facts where the statute presenting a less severe penalty was not a "lesser included offense" of the greater. 386 Mich. 684.

In the 1974 Genesee Prosecutor case, we reached the same conclusions where the circuit judge sought to accept, over the objections of the prosecutor, a plea of a "lesser included offense" of the crime charged, to wit, a plea of manslaughter to a charge of second-degree murder. 391 Mich. 119, 122.

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

As a consequence, unless there is some other reason, these cases stand as precedent to affirm the instant convictions, and, therefore, since we find no such reason, we hold that it is not an abuse of prosecutorial discretion to charge the felony of larceny in a building although the misdemeanor of general larceny might also have been charged.

IV. LEGISLATIVE INTENT NOT TO INCLUDE SHOPLIFTING IN THE LARCENY IN A BUILDING STATUTE

Defendants maintain that the Legislature did not intend to have the larceny in a building statute apply to shoplifting cases. They both rely on the following dictum from People v Carmichael, supra, 86 Mich. App. 422:

Carmichael was decided on the trial court's erroneous failure to permit the defendant to withdraw his guilty plea before sentencing, when it was clear that the plea was involuntary because the defendant pled in the midst of alcoholic withdrawal pains and after coercion by his attorney.

"It was not the intent of the Legislature to have the larceny in a building statute applicable in shoplifting cases."

However, it is the first rule of statutory construction that where the language of a statute is clear and unambiguous, there is no need for interpretation of what the Legislature intended, because it has said what it intended. Dussia v Monroe County Employees Retirement System, 386 Mich. 244, 248-249; 191 N.W.2d 307 (1971). The statute in question, MCL 750.360; MSA 28.592, reads as follows:

"Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony."

As here applicable, the statute reads: "Any person who shall commit the crime of larceny by stealing in any * * * store * * * shall be guilty of a felony". Nothing could be plainer or simpler. There is no suggestion that "larceny by stealing" is in any way limited by the value of the object stolen. It simply refers to the commission of "the crime of larceny by stealing". In other words, MCL 750.360; MSA 28.592 is clear and unambiguous.

Furthermore, it is clear beyond peradventure that defendants' acts of stealing clothing valued at under $100 in store buildings certainly fell within the proscription of the statutory language.

The fact that the same misconduct is also chargeable under the general larceny statute raises no special implications. As we have already noted in Genesee Prosecutor and other cases, the same misconduct can be and commonly is the subject matter of different statutes with different penalties. We particularly noted that the whole phenomenon of lesser included offenses indicates that the appearance of the same misconduct in a number of statutes is a general occurrence. In other words, the larceny in a building statute and the general larceny statute can be construed easily together, because no ambiguity is created by the fact that they have certain elements of misconduct in common. Despite these common elements, they are separate, independent statutes and must be so treated.

Returning to Carmichael, the quoted dictum appears to have been an honest but aberrant opinion. Other opinions of the Court of Appeals, both before and after Carmichael, have not noted any intention of the Legislature to except shoplifting from the intendment of the larceny in a building statute and have held to the contrary. Two cases in particular have considered the matter directly and thoughtfully. The seminal case of People v Jackson, 29 Mich. App. 654, 655-656; 185 N.W.2d 608 (1971), after setting forth the facts succinctly, covered most of the arguments raised in this case.

People v Benjamin, 101 Mich. App. 637, 643; 300 N.W.2d 661 (1980); People v Freeland, 101 Mich. App. 501, 511; 300 N.W.2d 616 (1980); People v Holmes, 98 Mich. App. 369, 371-372; 295 N.W.2d 887 (1980); People v Hart, 98 Mich. App. 273, 275; 296 N.W.2d 235 (1980); People v Evans, 94 Mich. App. 4; 287 N.W.2d 608 (1979); People v Bohm, 49 Mich. App. 244, 249; 212 N.W.2d 61 (1973), People v Graves, 31 Mich. App. 635, 637; 188 N.W.2d 87 (1971); People v Jackson, 29 Mich. App. 654; 185 N.W.2d 608 (1971). But see In re Bay Prosecutor, 102 Mich. App. 543; 302 N.W.2d 225 (1980).

"Defendant argues that the conviction under the felony offense of larceny, when the stolen property is valued at $100 or less, is contrary to legislative intent. We do not accept defendant's interpretation.

"Defendant would be guilty under either of the larceny statutes. The legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant, deserve felony status. See Black v Gladden, 237 Or. 631; 393 P.2d 190 (1964).

"The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v Lombardo, 301 Mich. 451; 3 N.W.2d 839 (1942); People v Birmingham, 13 Mich. App. 402; 164 N.W.2d 561 (1968); People v Eineder, 16 Mich. App. 270; 167 N.W.2d 893 (1969).

"Defendant's arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the legislature to distinguish simple larceny and larceny in a building as separate social evils.

"Defendant's further argument that the prison term constitutes cruel and unusual punishment is also meritless. The prison term given defendant is not so disproportionate to the crime as to shock the conscience of this Court."

This case established the law until Carmichael. Subsequent to Carmichael, the leading case has been People v Evans, 94 Mich. App. 4; 287 N.W.2d 608 (1979), which carefully considered the policy implications raised by the issue and found no abuse of prosecutorial discretion in charging larceny in a building where the theft was petty but the thief was an habitual offender.

In conclusion, it appears to us that the Legislature has clearly expressed its intention in the larceny in a building statute and that petty larceny in a store falls within the proscription of that statute.

V. VIOLATION OF DUE PROCESS BECAUSE OF LACK OF LEGISLATIVE STANDARDS

While the clear and unambiguous language of MCL 750.360; MSA 28.592 obviates the necessity of other construction aids, we have considered, but have not been persuaded by, defendants' efforts in this regard.

Defendants assert that the statutory scheme, permitting the prosecutor to charge the same act as either general larceny or larceny in a building, denies defendants due process. They rely heavily on Giaccio v Pennsylvania, 382 U.S. 399; 86 S Ct 518; 15 L Ed 2d 447 (1966). In Giaccio, the defendant, although found not guilty of a misdemeanor charge, was, under a peculiar Pennsylvania statute, assessed costs. The statute permitted the jury, after an acquittal in a case, to assess costs in their sole and unguided discretion against the county, the prosecutor, or the defendant with the further provision that if the defendant did not pay costs assessed against him, he would be committed to jail until the costs were paid, unless he gave security to pay within ten days. The United States Supreme Court held that there was a lack of due process because of vagueness and failure to provide legal standards.

The Giaccio case is not on point. First of all, the United States Supreme Court in that case found the Pennsylvania statute to be vague, whereas we find no vagueness in the statutory scheme here in question. Second, the problem of delegation is entirely different. In Giaccio, the jury was assigned an exotic duty with which it had no prior experience. In the instant case, as Batchelder, supra, indicates, the delegation of duty to prosecutors "is no broader than the authority they routinely exercise in enforcing criminal laws". 442 U.S. 126. In other words, there is "guidance * * * as reasonably precise as the subject matter requires". Osius v City of St Clair Shores, 344 Mich. 693, 698; 75 N.W.2d 25 (1956).

A. Vagueness

It is well established in due process analysis that the underlying principle is that no person shall be held criminally responsible for conduct which a person could not reasonably understand to be proscribed. See Colten v Kentucky, 407 U.S. 104; 92 S Ct 1953; 32 L Ed 2d 584 (1972); United States v Harriss, 347 U.S. 612; 74 S Ct 808; 98 L Ed 989 (1954); State v Lashinsky, 81 N.J. 1; 404 A.2d 1121 (1979). See also United States v Batchelder, supra. An additional tenet is that no person may be subject to peril of life, liberty, or property without a settled understanding of the potential sanctions or punishments established by a penal statute. A criminal statute will fall if it fails to give a person of ordinary intelligence reasonable notice that his behavior may be unlawful. United States v Batchelder; United States v Harriss. The key in resolving this issue is to determine whether the statutory scheme in question describes with sufficient clarity the consequences of violating the relevant criminal statute.

On a constitutional due process basis, it should make no difference, without a showing of something more, that two statutes cover the same conduct. Even if particular conduct violates more than one statute, this phenomenon alone does not diminish the notice afforded by each statute:

"Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied." United States v Batchelder, supra, 123. Accord, State v Weiner, 126 Ariz. 454; 616 P.2d 914 (1980).

Thus, since there is no allegation that the statutes in question do not individually describe crimes with sufficient particularity, we hold that such a statutory scheme in and of itself does not violate due process under the Michigan Constitution or the United States Constitution.

B. Impermissible Delegation

Defendants further believe that the statutory scheme of larceny in a building and general larceny provides for great disparity of treatment because there is no guidance in regulating prosecutors when they choose between these two provisions in prosecuting the defendants. Simply stated they believe that the alleged lack of standards is per se objectionable. We do not agree.

In United States v Batchelder, the defendant was convicted and sentenced under a federal statute prohibiting a previously convicted felon from receiving a firearm that has traveled in interstate commerce ( 18 U.S.C. § 922[h]). This statute carried a five-year maximum penalty. The Court of Appeals for the Seventh Circuit reversed the sentence on the basis that the substantive elements of 18 U.S.C. § 922(h) were identical with 18 U.S.C. Appendix 1202(a) which carries only a two-year maximum penalty. The Circuit Court of Appeals also postulated that the statutes might impermissibly delegate to federal prosecutors the legislative responsibility to set criminal penalties. The Supreme Court, however, soundly rejected this reasoning by stating:

"The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment * * * Congress has fulfilled its duty." 442 U.S. 126.

In our opinion, Batchelder answers the arguments advanced by the defendants.

VI. VIOLATION OF EQUAL PROTECTION

Defendants assert that prosecutorial discretion to charge either the felony of larceny in a building or the misdemeanor of general larceny for petty shoplifting violates constitutional guarantees of equal protection. Their arguments are twofold. First, they rely on cases from four other states that seem to have adopted such a rule. Second, they rely on Yick Wo v Hopkins, 118 U.S. 356; 6 S Ct 1064; 30 L Ed 220 (1886).

Defendants argue that People v Calvaresi, 188 Colo. 277; 534 P.2d 316 (1975), State v Hagge, 224 N.W.2d 560 (ND, 1974), State v Pirkey, 203 Or. 697; 281 P.2d 698 (1955), State v Zornes, 78 Wn.2d 9; 475 P.2d 109 (1970), and State v Collins, 55 Wn.2d 469; 348 P.2d 214 (1960), are persuasive precedent. However, while these cases are interesting and discuss equal protection, they are inapposite.

The issue in the instant case is whether the prosecutor can charge a defendant under a felony statute rather than a misdemeanor statute where the act in question clearly is proscribed by both statutes and where there is no question as to the validity of either statute. In Calvaresi, the court declared one statute to be unconstitutional because it created a felony out of a "reckless" homicide, whereas another statute created a misdemeanor out of a "negligent" homicide, since the distinction between "reckless" and "negligent" was only semantic. In Hagge and Collins, the two courts held that the statutes under which the defendants were charged were repealed by implication by other special statutes relating to the same conduct. In Pirkey, the statute was declared unconstitutional because it defined only one crime but left it up to the jury or magistrate to penalize it as a misdemeanor or a felony. But see Klamath Falls v Winters, 289 Or. 757; 619 P.2d 217, 231 (1980) (the court in effect recognizes that Batchelder overrules Pirkey). In Zornes, the court held that a misdemeanor statute decriminalizing marijuana, which was passed while the case was pending before the court, was retroactive and controlling rather than the prior statute which defined marijuana as a narcotic drug and made possession of such a drug a felony. In all these cases, the prosecutor was precluded from charging under a particular statute, not because of limitations of the law of prosecutorial discretion, but because the statute charged was invalid for one reason or another.

The defendants also argue that there has been illegal invidious discrimination in the application of the larceny in a building statute and hence a denial of equal protection under the doctrine of Yick Wo v Hopkins, supra. In general they have been innovative in this statistical argument, but they have left unacceptable gaps in their development of it.

The criterion to be used in determining whether the charging of a felony rather than a misdemeanor violates equal protection because of invidious discrimination is the two-prong test of intentional and purposeful discrimination. United States v Swanson, 509 F.2d 1205, 1208-1209 (CA 8, 1975). First, it must be shown that the defendants were "singled" out for prosecution while others similarly situated were not prosecuted for the same conduct. Second, it must be established that this discriminatory selection in prosecution was based on an impermissible ground such as race, sex, religion or the exercise of a fundamental right. United States v Larson, 612 F.2d 1301 (CA 8, 1980), cert den 446 U.S. 936 (1980).

The defendants respond by asking this Court to take notice of the following facts. In 1977 in the United States, twice as many whites were arrested for larceny-theft as were blacks. The percentage of blacks in the United States is 11.7 and the percentage in Michigan is 11.2. Since the national number of arrests of whites for this category is more than twice that of blacks, it must be concluded that more than twice as many whites as blacks were arrested for this category in Michigan. Given the greater than two-to-one disparity in arrests, they claim a racially neutral application of the statute would result in twice as many whites being charged with the felony, and, thus, twice as many whites should go to prison for this category. There are no racial statistics in Michigan of those incarcerated for larceny in a building. However, because the composition of the Michigan prison system as of June 30, 1978, was 38.5% white and 56% black, the defendants conclude that the administration of sentencing for the larceny statutes is racially discriminatory.

The defendants have attempted an interesting method of analysis, but they have not dug deeply enough. Perhaps a better articulated and more logically connected analysis might show some of their objectives. But as it is, they ask us to take a quantum leap in equal protection analysis based on unproven assumptions and non-sequitur statistical inferences. Thus, under the two-prong test, the defendants have not shown that they have been singled out for prosecution. But more importantly, under the second prong, they have not shown a governmental purpose to discriminate in this neutral statutory scheme. In the absence of a purpose to cause racial discrimination, governmental action that has a disproportionate effect on a racial minority is not unconstitutional. Such an effect may permit an inference of an unlawful purpose, but, standing alone, it is not conclusive on the question whether governmental activity is racially discriminatory. See, e.g., Arlington Heights v Metropolitan Housing Development Corp, 429 U.S. 252, 265; 97 S Ct 555; 50 L Ed 2d 450 (1977); Washington v Davis, 426 U.S. 229, 242; 96 S Ct 2040; 48 L Ed 2d 597 (1976).

The same requirement of purposeful discrimination in equal protection analysis must also be shown where there are allegations of sex discrimination. Personnel Administrator of Massachusetts v Feeney, 442 U.S. 256; 99 S Ct 2282; 60 L Ed 2d 870 (1979).

Additionally, the defendants argue an equal protection violation because they view the two larceny statutes to be duplicative in proof, allowing the prosecutor to create an arbitrary or discriminatory classification of defendants. See, e.g., Comment, Prosecutorial Discretion in the Duplicative Statutes Setting, 42 U Colo L Rev 455, 464-465 (1971). Actually, the two statutes under consideration, strictly speaking, do not fall within the definition of "duplicative". According to the Colorado Law Review Comment, an example of a "duplicative" situation is where "one statute proscribes `possession of marijuana, LSD, or heroin' as a felony, and another statute proscribes `possession of marijuana' as a misdemeanor, and if the requirements of proof placed on the prosecutor to sustain a conviction under the harsher statute are not more severe". 42 Colo L Rev 462.

The two statutes in the instant case are not duplicative in that sense. On the one hand, the general larceny statute makes the unlawful stealing of tangible or intangible personal property of another a misdemeanor if the value of such property is under one hundred dollars. MCL 750.356; MSA 28.588. On the other hand, larceny in a building includes the elements of the general larceny statute, but it also includes one more important requirement, i.e., the statute requires proof beyond a reasonable doubt that the stealing occurred "in any dwelling house, house trailer, office, [or] store". MCL 750.360; MSA 28.592. Thus, the Legislature has made it clear that before a certain class of larceny will be defined as a felony, the stealing must take place in one of the enumerated structures. In its wisdom, the Legislature has viewed the permanent taking of property in such structures to be more serious criminal activity. We cannot hold its action to be arbitrary or discriminatory. Furthermore, as the Supreme Court stated in Batchelder, supra, 442 U.S. 125:

"[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause."

We find the same reasoning to be persuasive, and we hold that the exercise of discretion in these cases does not per se violate the Equal Protection Clause under either the federal or Michigan Constitution. See, e.g., United States v Brown, 602 F.2d 909 (CA 9, 1979), cert den 446 U.S. 966 (1980); State v Weiner, 126 Ariz. 454; 616 P.2d 914 (1980); State v Watts, 601 S.W.2d 617 (Mo, 1980); Klamath Falls v Winters, 289 Or. 757; 619 P.2d 217 (1980); Strickland v State, 276 S.C. 17; 274 S.E.2d 430 (1981); Mack v State, 93 Wis.2d 287; 286 N.W.2d 563 (1980); State v Karpinski, 92 Wis.2d 599; 285 N.W.2d 729 (1979).

VII. CRUEL AND UNUSUAL PUNISHMENT

Both defendants argue that their sentences are invalid because they constitute cruel and unusual punishments. However, neither defendant argued this point in the Court of Appeals, nor raised it in his application for leave to appeal to this Court. In the Gonzales case, the prosecutor has argued that the matter is not properly before this Court and therefore should not be considered. People v Tyler, 399 Mich. 564, 571; 250 N.W.2d 467 (1977). The prosecutor 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 and involves a miscarriage of justice. See People v Snow, 386 Mich. 586, 591; 194 N.W.2d 314 (1972). Here the significant question is whether a prosecutor can exercise his discretion to charge the larceny in a building felony rather than the general larceny misdemeanor, and this is the question that the briefs and oral arguments have principally addressed. Furthermore, both defendants were sentenced within statutory limits and both defendants had prior felony records. We therefore see no reason to depart from our general rule.

VIII. WRITTEN PROSECUTORIAL STANDARDS

In addition to claiming that there were no legal standards to guide prosecutorial discretion, defendants decried the lack of written charging policies in most prosecutors' offices. The Gonzales brief, for example, states: "The lack of formal charging policies in shoplifting cases is not only a violation of due process, it is a violation of the American Bar Association Standards".

Nothing advanced in the way of argument or precedent by the parties convinces us that the lack of guidelines violates due process, although later argument might do so. Of course, we do not sit to enforce ABA standards. Nevertheless, we are impressed that charging guidelines might conceivably be a subject worthy of consideration in a proper forum in order to promote fair and uniform administration of justice, in which we, of course, have a decided interest and responsibility.

Michigan prosecutors might do well to take the initiative in developing their own guidelines for the exercise of prosecutorial discretion. Undoubtedly the State Bar Association, the Attorney General and other experts in the field would be available to render assistance, if, and when, the prosecutors would find such help useful. While this Court sees no immediate reason for it to be involved in this action in any of its capacities, it is not beyond possibility that, at a proper time and under appropriate circumstances, it might consider doing so. In any event, it believes that, for the present, the initiative properly lies with the prosecutors.

IX. INEFFECTIVE ASSISTANCE OF COUNSEL

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

The trial judge began explaining the rights that defendant was giving up in pleading guilty. In explaining the defendant's right of compulsory process, the trial judge engaged in the following dialogue with the defendant:

"The Court: You have a right to call your own witnesses if you have any, and if you had any difficulty in obtaining their presence, the court would assist you. Do you understand that?

"Defendant Howard: Would you say that again, sir, please?

"The Court: You have a right to call witnesses on your own behalf.

"Defendant Howard: Uh-huh.

"The Court: And if they refused to attend these hearings, then the court would order their presence. "Defendant Howard: Is it true, sir, they will order their presence and they must show?

"The Court: Or go to jail.

"Defendant Howard: Yes, sir. Well, like I — that's the problem, your Honor. My witnesses didn't show.

"The Court: And that is the reason you are offering the plea?

"Defendant Howard: Yes, sir.

"The Court: Okay. Where are the witnesses?

"Defendant Howard: They both had jobs. One work at Fords and the other work at some other job. I forgot the other place where he work at. We was here on the other two days and they postponed them. Then I get arrested for violation of parole, and I been in the county jail since then.

"The Court: All right. Do you have their names?

"Defendant Howard: Yes, sir, I got their names.

"The Court: What are their names?

"Defendant Howard: Mr. Kenneth Walton and a Mr. —

"The Court: Kenneth?

"Defendant Howard: Yes.

"The Court: What is the last name?

"Defendant Howard: Walton.

"The Court: Walton?

"Defendant Howard: Yes, sir.

"The Court: And what is their address — or do you know their address?

"Defendant Howard: No, sir, I don't know their address. I know Mr. James, he stay on —

"The Court (Interposing): What is his name?

"Defendant Howard: Al James.

"The Court: Al James?

"Defendant Howard: Yes, sir.

"The Court: All right.

"Defendant Howard: And I have another problem, your Honor.

"The Court: Where does Mr. James live?

"Defendant Howard: He — he live in Inkster on Durand, I believe. I'm not for sure. "The Court: Well, Mr. Howard, I indicated that we can order them in, but I cannot order them if I don't know where I can find them. Do you know where they work?

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

"The Court: Where is that?

"Defendant Howard: In Wayne on Michigan Avenue. Mr. Walton, let me see. He is employed at — what is it? In the CETA program, I think.

"The Court: Do you know where he — you don't know where, though?

"Defendant Howard: No, sir. But both of them work and they had to have them, you know, what you call them, subpoenas last time to carry back to the job with them stating why.

"The Court: They voluntarily came the last time; is that right?

"Defendant Howard: No. I served them with a subpoena through my attorney and they came the last time. And the second time the court date was set —

"The Court (Interposing): How did you serve them?

"Defendant Howard: She sent me a letter in the mail telling me it cost money to have the Wayne County Sheriffs serve warrants on witnesses and that I could serve them myself by taking —

"Ms. Hetmanski [defense counsel] (Interposing): No, I beg to differ. I said you should not serve it yourself, have a friend or relative of yours serve the defendants [sic]. "The Court: Were they served?

"Defendant Howard: Yes, sir, they was.

"The Court: Well, where did you serve them?

"Defendant Howard: I found Mr. Walton at home and I seen Mr. Al James — Aaron James at his girl friend house. I forget her name — it's Louise something — her last name. And since then, you know, I been working and I was in the hospital, and then I got incarcerated.

"The Court: Well, that is a principle of law, as I told you, but I can't do anything unless I know where they are. We are at trial date now. "Ms. Hetmanski: You said your mother talked to them this morning?

"Defendant Howard: Yes.

"Mother of defendant: I talked to them — excuse me, your Honor — last night, one of them. I called a while ago and there is trouble on both lines. You can check.

"The Court: Ma'am, do you know where they live?

"Mother of defendant: No, I don't, sir, I don't.

"The Court: How did you get their phone number?

"Mother of defendant: By my son gave me the card this morning, and one of them called last night. Now, you can check yourself, both lines, it's something wrong with them. I have the card here because I just came from the hallway.

"Defendant Howard: Your Honor, just forget it. I accept a plea to larceny from the building, whatever it is.

"The Court: Well, I don't want you to do anything, Mr. Howard, that you are not satisfied with. You know, if this plea is taken there will be certain consequences to it and it will only affect you, and so you are the person who has to make the decision. I can very easily say okay, if that's the way you want it, I'll go on with the business. But I am not charged with this offense, you are, and I don't want you to do something that you don't feel that you ought to do.

"Now, you have indicated to me that but for the absence of these witnesses you would go to trial. I have indicated to you that part of the court's function in a criminal case is to insist and use whatever powers it has to bring them in. Now, if we were dealing in a situation where we had John Jones who lived at 1234 whatever street and he was sitting at home and just simply said, `I'm not going down there, I don't care what happens,' then I would have no difficulty with that. I would ask the officer to dispatch one of his officers out there and arrest him, bring him in.

"We have some difficulty, a little difficulty here because we are scheduled for trial today. All the witnesses for the people are here and we have a jury sitting out in the hall now and we are ready to go. And then in addition to that we have the names of two people, but we don't know where to get them exactly, and so that presents a problem.

"I suppose the obvious answer to that would have been if we had known about this, if it were brought to the attention of the court that you had two witnesses who you thought were material in your defense, that you talked with them and they refused to come, then we could have dealt with it more effectively than we can today. But I don't want to foreclose you. This court is here to protect people, and that is part of my responsibility, and the law determines in those areas where I am obliged to afford protection to people who are in your circumstance charged with an offense.

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

"Defendant Howard: Yes, sir. Well, I believe the simplest thing is — I need that to take the plea, madam. I don't even know what it's supposed to say.

"Your Honor, due to the circumstances and the other unforeseen problems that we have in this trial, I am prepared to accept the plea that the prosecutor and so forth have set forth for me to take.

"The Court: All right. And are you doing that freely and voluntarily, Mr. Howard?

"[Defendant] Howard: Yes, sir, your Honor.

"The Court: You are not doing it because of anything but your decision?

"Defendant Howard: It's my decision."

The defendant believes that the facts on the record indicate that he was denied effective assistance of counsel because (1) his attorney failed to arrange for the presence of defense witnesses which forced him to plead guilty, and (2) his attorney failed to ensure that the defendant receive the benefit of the prosecutor's promise to recommend a sentence of one year.

In People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973), this Court held that where a convicted person attacks the adequacy of the representation he received at trial, he must prove his claim. "To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately."

While the defendant contends that his claim is supported on facts in the record, we do not agree. There is no indication in the record of how the defendant was going to use the testimony of his witnesses at trial. For example, we cannot tell whether they were alibi witnesses and, if alibi witnesses, whether the proper notice was filed. In addition, the testimony may have been cumulative in nature or given on a collateral matter. Thus, any failure by the defendant's attorney in ensuring their presence may have resulted in harmless error.

The notice provision for alibi witnesses is found at MCL 768.20; MSA 28.1043.

Finally, defendant's claim arises in part because he was sentenced to from 2-1/2 to 4 years for the offense after the prosecutor had breached his promise to recommend one year at sentencing. This part of his claim is moot because the trial judge has entered a nunc pro tunc correction of sentence, amending it to from 1 to 4 years.

In short, without an evidentiary hearing to further develop facts on the record, we cannot determine the adequacy of representation accorded the defendant by his attorney. Ginther, supra, 443. 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 hearing is appropriate. See People v Michael Anthony Williams, 391 Mich. 832 (1974). See also People v Moore, 391 Mich. 426, 431; 216 N.W.2d 770 (1974). Moreover, our disposition of this issue does not prejudice the defendant's right to proceed in a manner consistent with the case law discussed above.

CONCLUSION

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

Affirmed.

FITZGERALD, C.J., and COLEMAN and RYAN, JJ., concurred with WILLIAMS, J.