PEOPLE OF MI V AGUSTIIN SHQALSI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 16, 2001
Plaintiff-Appellee,
v
No. 217293
Oakland Circuit Court
LC No. 98-158868-FH
AGUSTIIN SHQALSI,
Defendant-Appellant.
Before: Markey, P.J., and Whitbeck and J. L. Martlew*, JJ.
PER CURIAM.
Defendant Agustiin Shqalsi appeals as of right from a jury conviction of first-degree retail
fraud,1 for which he was sentenced to thirty days in jail or a $1,000 fine. Shqalsi rejected an
offer to plead guilty to the misdemeanor offense of second-degree retail fraud.2 We affirm.
I. Basic Facts And Procedural History
Michael Tiernan, Kmart’s loss control manager at the Waterford store, testified that he
was working on February 6, 1998. While walking through the store, he saw Shqalsi remove a toy
car from its box, replace it with a boxed stereo CD player, and tape the box closed. Shqalsi
placed the box in his shopping cart and proceeded to another area where he discarded the roll of
tape. After adding a bottle of windshield washer fluid to the cart, Shqalsi went to the checkout
lane, paid for the items, and left the store. Tiernan stopped Shqalsi outside and brought him and
the toy car box back into the store. Inside the toy car box was the CD player, which was priced at
$349.99. The cash register receipt showed that Shqalsi paid $38.99, the price marked on the toy
car box.
Shqalsi testified that he went to the store to buy the toy car for his children. Shqalsi
stated that already owned two stereos and had no interest in having a third. He denied seeing a
stereo in the toy car box and denied stealing anything from the store.
1
MCL 750.356c; MSA 28.588(3).
2
MCL 750.356d; MSA 28.588(4).
* Circuit judge, sitting on the Court of Appeals by assignment.
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Following closing arguments and instructions, the jury retired to deliberate. Within ten
minutes, it returned a verdict finding Shqalsi guilty as charged.
II. Statutory Provisions
At the time the crime was committed and at the time Shqalsi was tried, the retail fraud
statute3 provided in pertinent part:
(1) A person who does any of the following in a store or in its immediate
vicinity is guilty of retail fraud in the first degree, a felony punishable by
imprisonment for not more than 2 years, or a fine of not more than $1,000.00, or
both:
(a) While a store is open to the public, alters, transfers, removes and
replaces, conceals, or otherwise misrepresents the price at which property is
offered for sale, with the intent not to pay for the property or to pay less than the
price at which the property is offered for sale, if the resulting difference in price is
more than $100.00.[4]
The statute was amended to provide:
(1) A person who does any of the following in a store or in its immediate
vicinity is guilty of retail fraud in the first degree, a felony punishable by
imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3
times the value of the difference in price, property stolen, or money or property
obtained or attempted to be obtained, whichever is greater, or both imprisonment
and a fine:
(a) While a store is open to the public, alters, transfers, removes and
replaces, conceals, or otherwise misrepresents the price at which property is
offered for sale, with the intent not to pay for the property or to pay less than the
price at which the property is offered for sale, if the resulting difference in price is
$1,000.00 or more.[5]
The amendment took effect January 1, 1999, approximately two weeks before Shqalsi was
sentenced.
3
MCL 750.356c; MSA 28.588(3).
4
If the difference was less than $100, the crime was second-degree retail fraud, a crime
punishable by up to 93 days in jail, a $100 fine, or both. MCL 750.356d(1)(a); MSA
28.588(4)(1)(a).
5
If the difference in price was more than $200 but less than $1,000, the crime was second-degree
retail fraud, “a misdemeanor punishable by imprisonment for not more than 1 year or a fine of
not more than $2,000.00 or 3 times the value of the difference in price, property stolen, or money
or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and
a fine.” MCL 750.356d(1)(a); MSA 28.588(4)(1)(a).
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III. The Guilty Plea Offer
A. Argument
Shqalsi contends that because his crime would have been a misdemeanor under the
amended statute, the plea bargain was illusory. In other words, Shqalsi argues that he was
offered no consideration for a plea because the prosecutor “was offering exactly what the law
would require if Mr. Shqalsi had been arrested on January 1, 1999.” Given that plus the fact that
the Legislature subsequently determined that it is no longer reasonable to classify a $311 crime as
a felony, Shqalsi argues that he should be given a new trial under the amended statute or the
judgment of sentence should be amended to reflect conviction of the misdemeanor offense.
B. Standard of Review
Because Shqalsi’s arguments raise questions of law, including whether to apply a statute
retroactively, our review is de novo.6
C. Evaluating Pleas And Plea Offers
Because a guilty plea must be knowingly, intelligently, and voluntarily made,7 “[a] guilty
plea will be invalidated if it is involuntary as a matter of law because the bargain on which the
plea was based was illusory.”8 A plea bargain may be illusory where the defendant pleads guilty
to a lesser offense to avoid conviction of a greater offense but was improperly charged with and
could not have been convicted of the greater offense.9 Thus, it is the illusory nature of the
bargain that renders the plea involuntary and entitles the defendant to relief. However, we are
not aware of any authority that entitles a defendant to relief because he rejected an illusory plea
bargain, and Shqalsi failed to provide us with any legal support for this argument.
D. The Effect Of Amendment To The Statute
Shqalsi’s underlying premise – that he was entitled to be prosecuted and sentenced under
the amended statute – is also without merit. The sentence or punishment that is prescribed by the
statute in force at the time the crime was committed must be imposed; an amendment of a
criminal statute concerning sentence or punishment is not retroactive.10 In fact, MCL 8.4a; MSA
2.214 provides that “[t]he repeal of any statute or part thereof shall not have the effect to release
or relinquish any penalty . . . incurred under such statute or any part thereof, unless the repealing
act shall so expressly provide, and such statute and part thereof shall be treated as still remaining
in force for the purpose of instituting or sustaining any proper action or prosecution for the
enforcement of such penalty . . . .” In other words, “unless there is a specific provision voiding a
6
People v Webb, 458 Mich 265, 274-275; 580 NW2d 884 (1998).
7
MCR 6.302; People v Peter Williams, 153 Mich App 346, 350; 395 NW2d 316 (1986).
8
People v Mrozek, 147 Mich App 304, 306-307; 382 NW2d 774 (1985).
9
Id. at 308.
10
People v Poole, 7 Mich App 237, 243; 151 NW2d 365 (1967).
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former law, any actions pending on the effective date of a new law are saved.”11 Nothing in the
amendment of the retail fraud statutes to release or relinquish the repealed portions, so the
subsequent change in the law under which Shqalsi was prosecuted and convicted did not affect
these proceedings.12
Affirmed.
/s/ Jane E. Markey
/s/ William C. Whitbeck
/s/ Jeffrey L. Martlew
11
People v Gravedoni, 172 Mich App 195, 197; 431 NW2d 221 (1988).
12
Id. at 197-198; People v Dickerson, 17 Mich App 201, 203; 169 NW2d 336 (1969).
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