2.9PRV 5—Prior Misdemeanor Convictions or Prior Misdemeanor Juvenile Adjudications

A.Scoring

Step 1: Determine whether the offender has any prior misdemeanor convictions or prior misdemeanor juvenile adjudications.¹ MCL 777.55(1). If so, go to step 2.

Step 2: Determine which one or more of the statements addressed by the variable apply to the offender and assign the point value indicated for the applicable statement with the highest number of points. MCL 777.55(1).

Additional requirements of PRV 5 may eliminate the use of prior convictions or adjudications that would otherwise qualify under this variable:

•A prior conviction used to enhance the sentencing offense to a felony may not be counted under PRV 5. MCL 777.55(2)(a)-(b).

•Only prior convictions and adjudications for offenses expressly listed in PRV 5 may be counted as prior misdemeanor convictions or prior misdemeanor juvenile adjudications for purposes of scoring PRV 5. These convictions and adjudications are as follows:

•prior misdemeanor convictions or prior misdemeanor juvenile adjudications that are offenses against a person or property, weapons offenses, or controlled substances offenses,² and

•prior misdemeanor convictions and prior misdemeanor juvenile adjudications for the operation or attempted operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive while the offender is under the influence of or impaired by alcohol, a controlled substance, or a combination of alcohol and a controlled substance. MCL 777.55(2)(a)-(b).

B.Issues

1.Meaning of Another State Does Not Include Foreign State

For purposes of scoring an offender’s prior record variables, “another state,” as contemplated by MCL 777.51(2), does not include foreign states. People v Price, 477 Mich 1, 5 (2006) (the defendant’s previous conviction in Canada was improperly counted for purposes of PRV 1). Relevant language used in PRV 5 is the same as the language used in PRV 1. MCL 777.55(3). See Section 2.4(B)(2) for a detailed discussion of Price.

2.Meaning of Prior Conviction/Adjudication

Under MCL 777.55(3)(b), “[an] order of disposition [for a juvenile adjudication must be] entered before the sentencing offense was committed . . . [in order to] constitute a prior misdemeanor juvenile adjudication for purposes of assessing points under PRV 5.” People v Gibbs, 299 Mich App 473, 485 (2013) (the trial court erred in assessing two points under PRV 5 where the order of disposition for the defendant’s juvenile adjudication was not entered until after the commission of the sentencing offense, even though the juvenile offense was committed before the sentencing offense).

3.Examples of Prior Convictions/Adjudications That Must be Scored

Minor’s violation of zero-tolerance provision. A defendant’s conviction for being a minor operating a vehicle with any bodily alcohol content—the “zero-tolerance provision,” MCL 257.625(6)—constitutes a misdemeanor for operating a vehicle while under the influence of alcohol or impaired by alcohol for purposes of scoring PRV 5. People v Bulger, 291 Mich App 1, 5-7 (2010). Although the “prior conviction under the zero-tolerance provision did not require proof that [the defendant] was actually under the influence of alcohol or was impaired by alcohol,” MCL 777.55 should be read “broadly to refer to the drunk-driving statute as a whole, rather than to the specific crimes that require proof of operating a vehicle ‘under the influence of or impaired by’ alcohol.” Bulger, 291 Mich App at 6-7.

Possession of drug paraphernalia. Misdemeanor convictions for possession of drug paraphernalia “may be counted as controlled substance offenses for purposes of PRV 5.” People v Stevens, 306 Mich App 620, 627 (2014) (noting that “offenses involving drug paraphernalia have been specifically categorized by the Legislature as offenses within the controlled substances article of the Public Health Code”).

Misdemeanor malicious use of telecommunications device. Because the statute governing the misdemeanor offense of malicious use of a telecommunications device, MCL 750.540e(1), “specifically addresses communications directed at ‘another person,’” it “is an offense against a person” as required by MCL 777.55(2)(a), and the trial court properly counted it under PRV 5. People v Maben, 313 Mich App 545, 550 (2015).

4.Examples of Prior Convictions/Adjudications That Cannot be Scored

Other alcohol-related offenses. Previous alcohol-related convictions unrelated to operating while under the influence or impaired are not convictions involving a controlled substance for purposes of scoring PRV 5. People v Endres, 269 Mich App 414, 416-417 (2006).³ Specifically, prior alcohol-related offenses that do not involve operating while under the influence or impaired cannot be counted under PRV 5 because the definition of controlled substance in the Public Health Code⁴ does not include alcohol, and the language of MCL 777.55(2)(b) “clearly indicates that ‘alcohol’ and ‘a controlled substance’ are not to be considered one and the same”; rather, “[e]ach is a distinct category of substances that can be ingested separately or in combination[.]” Endres, 269 Mich App at 419-420. See also People v Stevens, 306 Mich App 620, 626 (2014) (citing Endres and noting that the Court of Appeals “reasoned that the defendant’s alcohol-related misdemeanor convictions could not be counted under PRV 5 as controlled substance offenses”).

Discharge under MCL 333.7411. A discharge and dismissal following a defendant’s successful completion of probation under the deferred adjudication provisions of MCL 333.7411 is not a prior misdemeanor conviction for purposes of scoring PRV 5. People v James, 267 Mich App 675, 679 (2005). “MCL 333.7411(1) specifically states that the discharge and dismissal procedure that it authorizes is ‘without adjudication of guilt’ and ‘is not a conviction for purposes of  . . . disabilities imposed by law upon conviction of a crime[.]’” James, 267 Mich App at 679-680 (holding that the “defendant’s misdemeanor guilty plea cannot be used to enhance his sentence,” because “[t]o do so would be to impose a ‘disability’ against him upon his conviction”) (alterations omitted).

5.Out-of-State Convictions for Attempted Crimes

An out-of-state conviction for an attempted crime may qualify for scoring under PRV 5 if the attempted offense is tied to the crime attempted, the attempted offense is a misdemeanor, and the crime attempted “‘is an offense against a person or property, a controlled substance offense, or a weapon offense.’” People v Crews, 299 Mich App 381, 397-399 (2013), quoting MCL 777.55(2)(a). In Crews, the defendant’s prior Ohio attempt conviction stemming from a charge of possession or use of drugs was properly considered in assessing 10 points under PRV 5 because “Ohio’s attempt statute specifically tie[d] an attempt conviction to the crime attempted,” and it was clear from the defendant’s PSIR that the attempt plea was based on a controlled substance offense. Crews, 299 Mich App at 397-399.