Prior Record Variable 7 (PRV 7) measures subsequent and concurrent felony convictions arising from the same or related criminal episode. MCL 777.57 governs scoring. Unlike PRVs 1 through 5, which address prior convictions entered before the sentencing offense, PRV 7 specifically accounts for convictions obtained after the sentencing offense was committed (subsequent) as well as convictions obtained at the same time (concurrent). PRV 7 captures the defendant's overall criminality in connection with the current episode.
Scoring Table
| Points | Scoring Provision |
|---|---|
| 20 | The offender has 2 or more subsequent or concurrent felony convictions. MCL 777.57(1)(a). |
| 10 | The offender has 1 subsequent or concurrent felony conviction. MCL 777.57(1)(b). |
| 0 | The offender has no subsequent or concurrent felony convictions. MCL 777.57(1)(c). |
| MCL 777.57(2): Felony-firearm convictions may NOT be counted. Concurrent felony convictions resulting in mandatory consecutive sentences may NOT be counted. For offenses committed on or after March 1, 2003: Concurrent felony convictions resulting in consecutive sentences under MCL 333.7401(3) may NOT be counted. The sentencing conviction itself is never counted — only additional convictions are tallied. | |
Counting Rules
The sentencing conviction itself is never counted under PRV 7—only additional convictions beyond the sentencing offense are tallied. MCL 777.57(2)(a). Accordingly, if a defendant is convicted of two felony counts, only one count (other than the sentencing offense) is counted, yielding 10 points. Twenty points is available only when two or more additional convictions (beyond the sentencing offense) exist.
For purposes of PRV 7, a "felony" is defined by the Code of Criminal Procedure as any offense punishable by more than one year of imprisonment. This definition is broader than colloquial usage and encompasses some offenses labeled "misdemeanors" in the Penal Code but carrying maximum penalties exceeding one year.1
Controlling Case Law
No Concurrent or Subsequent Convictions: Zero Points Required
As the prosecutor conceded, where the defendant had no concurrent felony convictions and no subsequent felony convictions, it was error to assess ten points under PRV 7. The error was plain and required resentencing. Defense counsel and the trial court alike must verify that at least one qualifying concurrent or subsequent conviction exists before assessing any points under PRV 7.2
Counting Two or More Concurrent Convictions (20 Points)
The trial court's scoring of PRV 7 at 20 points was proper where the defendant had two or more concurrent convictions beyond the sentencing offense. When the record reflects multiple concurrent felony convictions in addition to the sentencing offense, the 20-point tier is applicable regardless of whether the additional convictions arose from the same transaction as the sentencing offense.3
Although a felony-firearm conviction cannot be counted towards PRV 7, where the defendant had two other concurrent convictions for assault with intent to commit great bodily harm in addition to the sentencing offense, it was not error to score PRV 7 at 20 points. The felony-firearm exclusion does not affect the count of other qualifying concurrent convictions; if two non-excluded concurrent felonies exist beyond the sentencing conviction, 20 points is proper.4
Sentencing Offense Cannot Be Counted
The scoring of PRV 7 at 20 points using the sentencing conviction and only one other contemporaneous conviction count was clearly erroneous. The statute expressly addresses assigning points for convictions other than the sentencing conviction. Where the defendant was convicted of only two counts, with one being the sentencing conviction, only one additional conviction exists, yielding a maximum of 10 points—not 20. Twenty points requires at least two convictions beyond the sentencing offense.5
Misdemeanor-Labeled Offenses That Constitute Felonies for Scoring Purposes
PRV 7 was properly scored at 10 points where the defendant's concurrent conviction of third-degree child abuse was designated a misdemeanor at the time of that conviction but constitutes a felony for purposes of scoring the sentencing guidelines because it was punishable by more than one year of imprisonment. The Code of Criminal Procedure's definition of "felony" (any offense punishable by more than one year) governs PRV 7 scoring, not the Penal Code label of the offense.6
PRV 7 was properly scored for a concurrent felony conviction on the basis of the defendant's concurrent misdemeanor conviction of maintaining a drug house, which carries a maximum term of 2 years' imprisonment. Because that offense is punishable by more than one year, it constitutes a "felony" for purposes of PRV 7 scoring under the Code of Criminal Procedure's definition, notwithstanding its Penal Code misdemeanor label.7
A concurrent conviction for possession of marijuana, second offense, may be scored as a concurrent felony conviction for PRV 7 because the guidelines are in the Code of Criminal Procedure, which defines a felony as an offense punishable by more than one year. The second-offense marijuana possession conviction is punishable by more than one year and therefore qualifies as a felony for PRV 7 purposes.8
The defendant's concurrent misdemeanor conviction for willfully preventing a telephone communication was properly used to score PRV 7 because that offense is punishable by not more than two years' imprisonment—placing it within the Code of Criminal Procedure's definition of a felony as any offense punishable by more than one year.9
PRV 2 and PRV 7 Overlap Prohibition
A "subsequent" conviction cannot be used to score both PRV 2 and PRV 7. Double-counting a single conviction under two different PRVs inflates the defendant's PRV score and produces an improper guidelines range. The same conviction may be assigned to only one PRV; where a subsequent conviction is scored under PRV 7, it cannot also be counted as a prior low severity felony under PRV 2.10
Felony-Firearm Exclusion
MCL 777.57(2)(b) explicitly excludes felony-firearm convictions from PRV 7 scoring. This exclusion applies regardless of how many other qualifying concurrent or subsequent convictions exist. In People v Terrell, 312 Mich App 450 (2015), the court confirmed that the felony-firearm exclusion does not affect the tally of other qualifying convictions—only the felony-firearm conviction itself must be excluded from the count.11
Evidentiary Standard
PRV 7 scoring is determined by reference to the record under the preponderance of the evidence standard. People v Hardy, 494 Mich 430, 438 (2013); People v Osantowski, 481 Mich 103, 111 (2008). The trial court's factual determinations are reviewed for clear error; whether those facts satisfy the scoring conditions is reviewed de novo.
Endnotes
- MCL 761.1(g) (Code of Criminal Procedure definition: "felony" means a violation of a penal law of this state for which the offender may be punished by imprisonment for more than 1 year).
- People v Allen, 310 Mich App 328 (2015).
- People v Harmon, 248 Mich App 522 (2001).
- People v Terrell, 312 Mich App 450 (2015).
- People v Pickett, unpublished per curiam opinion of the Court of Appeals, issued May 6, 2004 (Docket No. 246138).
- People v Damon, unpublished per curiam opinion of the Court of Appeals, issued December 8, 2009 (Docket No. 286770).
- People v Torres, unpublished per curiam opinion of the Court of Appeals, issued January 15, 2010 (Docket No. 289244).
- People v Pounders, unpublished per curiam opinion of the Court of Appeals, issued October 30, 2007 (Docket No. 272039).
- People v Brown, unpublished per curiam opinion of the Court of Appeals, issued December 4, 2007 (Docket No. 271102).
- People v Toensfeldt, ___ Mich ___; 961 NW2d 219 (2021).
- MCL 777.57(2)(b); People v Terrell, 312 Mich App 450 (2015).