Opinion
Docket No. 83996.
Decided October 8, 1985. Leave to appeal denied, 424 Mich. 888.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul L. Maloney, Prosecuting Attorney, and Brian S. Berger, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Chari Grove), for defendant on appeal.
Before: ALLEN, P.J., and R.B. BURNS and MacKENZIE, JJ.
Defendant appeals his plea-based conviction for larceny in a building. MCL 750.360; MSA 28.592. This case arises from an incident occurring on October 6, 1984, at an Eagles Supermarket in the City of Benton Harbor. Defendant stole a bottle of hot sauce and a package of "Budding Beef" valued at approximately $1.20. Defendant was sentenced to serve from one to four years in prison.
Defendant appeals from his sentence, claiming that sentencing him for the four-year felony of larceny in a building constitutes cruel and unusual punishment for petty shoplifting. We affirm.
In People v. Ford, 417 Mich. 66; 331 N.W.2d 878 (1982), the Supreme Court ruled that it was within the prosecutor's discretion to charge the felony of larceny in a building rather than the 90-day misdemeanor of larceny under $100, MCL 750.356; MSA 28.588. However, the Court specifically declined to consider whether so charging constituted cruel and unusual punishment. 417 Mich. 105-106. Although a number of panels of our Court have considered this question in the past and have determined that the constitutional prohibitions against cruel and unusual punishments were not violated, we revisit this question in light of the recent attention given by the Supreme Court on sentencing issues.
People v. Bohm, 49 Mich. App. 244; 212 N.W.2d 61 (1973); People v. Bullock, 48 Mich. App. 700; 211 N.W.2d 108 (1973); People v. Jackson, 29 Mich. App. 654; 185 N.W.2d 608 (1971).
E.g., People v. Coles, 417 Mich. 523; 339 N.W.2d 440 (1983); Michigan Sentencing Guidelines.
US Const, Am VIII prohibits the infliction of "cruel and unusual punishments". This prohibition has been interpreted as requiring proportionality in sentencing. In Weems v. United States, 217 U.S. 349; 30 S Ct 544; 54 L Ed 793 (1910), the Court found unconstitutional a sentence of 15 years in prison at hard labor with wrist and ankle chains for falsifying two items on an official document. The requirement that the punishment fit the crime was again applied by the Supreme Court in Coker v Georgia, 433 U.S. 584; 97 S Ct 2861; 53 L Ed 2d 982 (1977). The defendant in Coker was convicted of rape and sentenced to death. The Court found that the death sentence was "grossly disproportionate and excessive punishment for the crime of rape" and concluded that it was forbidden by the Eighth Amendment. 433 U.S. 592.
However, in the more recent case of Rummel v. Estelle, 445 U.S. 263; 100 S Ct 1133; 63 L Ed 2d 382 (1980), the Supreme Court let stand a parolable life sentence under a Texas habitual offender statute. In Rummel, the defendant, over the course of nine years, was convicted of three different crimes, all felonies under Texas law. The net proceeds of those three felonies was $229.11. Under Texas law, as a three-time felon, Rummel was sentenced to a mandatory life term. The Court concluded that the mandatory life sentence did not constitute cruel and unusual punishment under the Eighth Amendment.
Although the Rummel decision has come under criticism, we find that it disposes of defendant's Eighth Amendment claim in the case at bar. In light of Rummel, we believe that it does not contravene the Eighth Amendment to charge shoplifters, even where the value of the merchandise is minor, with the four-year felony of larceny in a building.
See, e.g., Dressler, Substantive Criminal Law Through the Looking Glass of Rummel v. Estelle: Proportionality and Justice as Endangered Doctrines, 34 SW L J 1063 (1981).
However, defendant also challenges his sentence under the Michigan Constitution. Const 1963, art 1, § 16 prohibits the infliction of "cruel or unusual punishment". (Emphasis added.) In People v. Lorentzen, 387 Mich. 167; 194 N.W.2d 827 (1972), our Supreme Court established a three-pronged analysis of cruel or unusual punishment issues.
The first prong of the analysis considers whether the punishment is proportionate to the crime. Defendant points to a number of crimes which carry maximum penalties of four years or less and which are allegedly more serious than the instant offense. However, we believe that defendant misjudges the social harm of the charged offense. We agree with Judge R.B. BURNS'S statement in People v. Jackson, 29 Mich. App. 654, 655; 185 N.W.2d 608 (1971):
"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."
Given the social problem addressed by the larceny in a building statute, we cannot conclude that it is disproportionate to classify it as a four-year felony.
The next factor considered under the Lorentzen analysis is the evolving standards of decency. We find defendant's argument under this factor unpersuasive. Given that our Supreme Court recently found that the prosecutor has the discretion to charge the felony in shoplifting cases, that the Legislature has not moved to reclassify the offense, and that criminals are still being convicted by juries of this offense, we do not find it indecent that defendant, or other similarly situated defendants, are charged with the felony offense.
Finally, Lorentzen directs us to consider the prospects of rehabilitation under the sentence provided for by statute. In the case at bar, the sentencing judge noted that it may be necessary for defendant to be incarcerated beyond the one-year minimum in order to achieve rehabilitation. We believe that the four-year maximum under the larceny in a building statute not only does not frustrate the prospects of rehabilitation, it may even be necessary when trial courts are faced with career criminals.
Before concluding, we note that, unlike prior cruel or unusual punishment cases, we are able to review this case in light of the availability of sentence review under People v. Coles, 417 Mich. 523 ; 339 N.W.2d 440 (1983). There will be cases in which the maximum sentence under the statute would be inappropriate as well as cases in which it would be appropriate. However, there is no need to strike down the statute as unconstitutional in order to protect the rights of defendants in those cases where a more lenient sentence is indicated. Rather, we will review the sentences actually imposed in light of Coles and order resentencing where the sentence imposed constitutes an abuse of discretion. We, therefore, conclude that it does not violate Const 1963, art 1, § 16 to charge a petty shoplifter with the felony of larceny in a building.
Finally, we note that a Coles review is unnecessary here since defendant does not raise this issue in his brief. However, we do note that the sentence imposed is within the sentencing guidelines and that the sentencing judge articulated the reasons for the sentence on the record. Further, although the value of the merchandise involved was rather small, defendant has a number of misdemeanors and felonies on his record and was, in fact, serving time for a theft-related offense at the time of the current offense.
Affirmed.
ALLEN, P.J., concurred in result only.