Ten-Year Gap Rule — Prior Convictions and Adjudications

The defendant was adjudged responsible for first-degree home invasion in 2005 but served his term as a youthful trainee under the Holmes Youthful Trainee Act as an alternative to conventional criminal conviction and sentence. The Court of Appeals held that because the defendant was assigned HYTA status in response to having committed the crime of first-degree home invasion — a Class B offense — that status fell within the definition of "conviction" under MCL 777.50(4)(a)(i) and was therefore properly scored under PRV 1. HYTA assignments are, by explicit statutory definition, convictions for all PRV scoring purposes, including the ten-year gap calculation.

PRV 5 was erroneously scored on the basis of a prior charge of possession of marijuana for which the defendant was assigned to 7411 status, because MCL 333.7411 specifically provides that a discharge and dismissal under that statute does not constitute a conviction and is not an adjudication of guilt. Unlike HYTA status and expunged convictions — both of which are expressly listed within the definition of "conviction" in MCL 777.50(4)(a) — MCL 333.7411 dismissals are not included in that definition. Accordingly, 7411 dismissals are not convictions for any PRV scoring purpose and cannot be used to score PRVs or to bridge a ten-year gap.

This is the controlling published authority on the non-scorable conviction rule. The Court of Appeals held that a prior conviction that is not otherwise scorable under the PRVs may, nevertheless, be considered in applying the ten-year gap rule of MCL 777.50. The defendant had argued that only offenses scorable under PRV 5 could be considered in applying the gap rule for purposes of PRV 5 scoring. The Court rejected this argument, drawing a sharp distinction between the two statutory provisions:

MCL 777.55 (PRV 5) and MCL 777.50 (the gap rule) "serve a common purpose by limiting what prior convictions may be considered, [but] the limitations are different, and the underlying purpose of each respective limitation is obviously different as well." MCL 777.55 through MCL 777.51 to MCL 777.54 "consider the nature of the defendant's prior crimes, whether they are worthy of being scored under the sentencing guidelines, and points are to be assessed based on the number and severity of those offenses." MCL 777.50, by contrast, "addresses the question whether a defendant's prior criminal history should be considered at all because of a period of time spent as a law-abiding citizen." In making this judgment, the Legislature "insisted that the 10-year conviction-free period be . . . free of any convictions, even ones that would not themselves be scorable under the PRVs." A non-scorable misdemeanor therefore bridges any gap that would otherwise exist and preserves the scorability of all earlier convictions.

Consistent with Butler (which was decided two years later), the Court held that a prior misdemeanor conviction that is not a scorable offense under PRV 5 will nevertheless be considered in determining whether the defendant had a conviction-free period longer than 10 years. A non-scorable misdemeanor bridges any gap that would otherwise exist and preserves the scoring of all convictions from before that offense.

The Court applied the same principle: a non-scorable misdemeanor conviction within the relevant period is sufficient to bridge a potential 10-year gap, thereby preserving the scorability of earlier convictions that might otherwise have been excluded.

Further applying the same rule, the Court found that a non-scorable misdemeanor within the period prevents the formation of any 10-year gap and preserves the scoring of all prior convictions within that chain of criminal history.

The most recent application of the Butler rule in the materials reviewed, again holding that a non-scorable misdemeanor conviction bridges any potential 10-year gap and preserves the scorability of earlier convictions for PRV purposes.

The trial court erred in scoring PRV 2 and PRV 5 of the sentencing guidelines on the basis of convictions that preceded a more than 10-year gap in the defendant's criminal history. Where a qualifying gap exists, all convictions occurring before the gap must be excluded from PRV scoring — the gap operates as a complete bar to earlier convictions, not merely a factor to be weighed.

MCL 777.50 precluded scoring 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 of the defendant's criminal sexual conduct was March 31, 2001 — a gap of more than 10 years. The Court specifically noted that the gap analysis hinges on the actual offense date, not the later date alleged in the charging instrument. Although the complaint alleged the offense occurred on or about March 7, 2001, the trial evidence established March 31, 2001 as the earliest offense date. The probation discharge date of March 18, 1991, combined with an offense date of March 31, 2001, produced a gap exceeding 10 years by 13 days — sufficient to trigger the exclusion. This case underscores the importance of reviewing the evidentiary record, not merely the charging document, when applying the gap rule.

Where both trial counsel and appellate counsel 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 mistake led to a sentence above the appropriate guidelines range, the Court held that counsel provided ineffective assistance of counsel and that the defendant was entitled to resentencing. The error was raised by the defendant himself through a Standard 4 brief filed pro se. This case is a significant reminder that failure to apply the ten-year gap rule correctly is not merely a technical scoring error — it rises to the level of constitutionally deficient performance when it results in a sentence exceeding the correct range. Defense counsel at both the trial and appellate levels have an affirmative duty to identify and litigate applicable ten-year gaps.

A trial court may consider felony convictions that are more than ten years old in determining a defendant's habitual offender status. The ten-year gap rule of MCL 777.50 limits the age of prior convictions that may be counted in scoring the PRVs under the statutory sentencing guidelines, but it does not apply to habitual offender enhancement under MCL 769.10 to MCL 769.12. These are separate statutory schemes with independent limitations. Convictions excluded from PRV scoring by the gap rule may nevertheless support habitual offender enhancement.