PRV 2 — Prior Low Severity Felony Convictions

The defendant's prior conviction for unlawful use of a motor vehicle was correctly scored in PRV 2, despite the fact that it is described as a misdemeanor in the Penal Code. MCL 777.52 expressly defines a low severity conviction to include a conviction for a crime in Class H, and unlawful use of a motor vehicle is specifically listed in Class H by MCL 777.16u. The determinative inquiry is the offense's classification within the sentencing guidelines framework, not its label elsewhere in the Penal Code.²

The defendant's Indiana conviction for receiving a stolen firearm with a fair market value of $175 was properly scored as a prior low severity felony conviction under PRV 2. Under MCL 750.535(5), the monetary value would render the offense misdemeanor-level receiving and concealing under Michigan's general receiving statute. However, MCL 750.535b(2), which specifically prohibits receiving or concealing a stolen firearm and provides a maximum penalty of 10 years' imprisonment, controls over the more general provision because a specific statutory provision differs from a related general one, the specific provision governs. As a Class E felony under MCL 777.16z, the offense constitutes a low severity felony properly scored under PRV 2.³

Six prior convictions for resisting and obstructing that constituted misdemeanors at the time of those convictions cannot be used to score PRV 2. The classification of the offense at the time of conviction governs, not the classification under a subsequent amendment. The court must assess the nature of the prior offense as it existed when the conviction was entered.⁴

The defendant's prior 2001 conviction for resisting and obstructing could not constitute a low severity conviction for purposes of PRV 2 because, although resisting and obstructing currently constitutes a felony, the offense was classified as a misdemeanor until a 2002 statutory amendment. The classification of the offense at the time of conviction—misdemeanor—governs the PRV analysis.⁵

Although the Uniform Code of Military Justice does not classify offenses as misdemeanors or felonies, military court-martial convictions for offenses classified as felonies under Michigan law are properly scored under the PRVs. The defendant's military court-martial convictions for felonious assault and obstruction of justice through intimidation of a witness were properly scored as prior felony convictions because both offenses constitute felonies under Michigan law. The court must map each military offense to the corresponding Michigan offense to determine whether it is a high or low severity felony.⁶

As a result of the amendment to MCL 777.52, effective January 9, 2007, a prior felony-firearm conviction may properly be used in scoring PRV 2 in a new conviction arising after that amendment. Before this amendment, felony-firearm convictions were excluded from PRV scoring. Defense counsel must verify the date of the amendment's applicability when evaluating whether a prior felony-firearm conviction may be counted under PRV 2.⁷

A "subsequent" conviction cannot be used to score both PRV 2 and PRV 7. The same conviction may not be counted twice. When a conviction is subsequent to the sentencing offense, it is properly scored under PRV 7 only; it cannot simultaneously be credited as a low severity prior felony conviction under PRV 2. Defense counsel should carefully examine any conviction scored under both PRVs.⁸

Consistent with Toensfeldt, PRV 2 was improperly scored where the trial court counted a subsequent conviction in PRV 2 that had also been scored under PRV 7. The subsequent felony conviction belongs exclusively in PRV 7.⁹

The scoring of PRV 2 on the basis of two prior low severity felony convictions that were used to enhance the defendant's current conviction to OUIL/3rd was not improper. The instruction for PRV 5 that precludes the scoring of prior misdemeanors used to enhance the current offense to a felony is not a part of the instructions for PRV 2. Accordingly, even though those prior convictions were used to elevate the current offense to a felony, they may also be independently scored in PRV 2.¹⁰

MCL 777.50 (the ten-year gap rule) precluded the scoring of points in PRV 2 where the defendant was discharged from probation on March 18, 1991, and the earliest date for which evidence was presented at trial for the sentencing offense was March 31, 2001. Even though the complaint alleged the offense occurred on or about March 7, 2001—technically before the ten-year gap closed—the court properly applied the gap rule based on the evidentiary record at trial.¹¹

The trial court erred in scoring PRV 2 on the basis of convictions that preceded a more than ten-year gap in the defendant's criminal history. The ten-year gap rule of MCL 777.50 operates to exclude all prior convictions from the defendant's criminal record that precede a period of at least ten years during which the defendant had no convictions or dispositions.¹²

Where trial counsel and appellate counsel both failed to recognize a ten-year gap in the prior criminal history that would have precluded the scoring of PRVs 1, 2, and 5, and where the resulting scoring error produced a sentence above the appropriate guidelines range, both trial and appellate counsel provided ineffective assistance of counsel and the defendant was entitled to resentencing.¹³

The framework established in Meeks for determining whether an out-of-state conviction corresponds to a Michigan low severity felony applies broadly: courts examine the elements and penalties of the out-of-state offense and identify the Michigan statute to which it is most closely analogous, then apply that statute's offense classification to determine whether the prior conviction belongs in PRV 1 or PRV 2.¹⁴