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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v AGUSTIIN SHQALSI, Defendant-Appellant.

UNPUBLISHED January 16, 2001

No. 217293 Oakland Circuit Court LC No. 98-158868-FH

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 2

MCL 750.356c; MSA 28.588(3). MCL 750.356d; MSA 28.588(4).

* Circuit judge, sitting on the Court of Appeals by assignment. -1-

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 4

MCL 750.356c; MSA 28.588(3).

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). 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

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