2.5PRV 1—Prior High Severity Felony Convictions

A.Scoring

Step 1: Determine if the defendant has any previous convictions entered before the sentencing offense was committed that qualify as prior high severity felony convictions.¹ MCL 777.51(1). If the defendant has previous convictions that qualify under PRV 1, go to Step 2.

Step 2: Determine which one or more of the statements addressed by the variable apply to the offender’s previous high severity felony convictions and assign the point value indicated by the applicable statement with the highest number of points. MCL 777.51(1).

B.Issues

1.Corresponding Federal and Out-of-State Convictions

“[B]y distinguishing high- and low-severity felony convictions [in MCL 777.51(2) (PRV 1) and MCL 777.52(2) (PRV 2)] the Legislature intended to provide sentencing courts with a mechanism for matching criminal conduct prohibited by other states with similar conduct prohibited by Michigan statutes, with the focus on the type of conduct and harm that each respective statute seeks to prevent and punish.” People v Crews, 299 Mich App 381, 389-390 (2013).

MCL 777.51(2)(b), defining prior high severity felony conviction, requires that an out-of-state conviction “correspond to a specific Michigan crime in the appropriate class.” Crews, 299 Mich App at 392 (noting that PRV 1 cannot be scored simply because an out-of-state statute seeks to protect against the same type of harm as a Michigan statute).² However, MCL 777.51(2)(b) requires only that the out-of-state felony “correspond” to a crime in a listed offense class, and “[t]he plain meaning of ‘correspond’ does not require statues to mirror each other under all circumstances; rather, it requires only that statutes be analogous or similar, meaning that they have ‘qualities in common.’” Crews, 299 Mich App at 396, quoting Random House Webster’s College Dictionary (1997) (holding that PRV 1 was properly scored where the defendant’s two prior convictions of second-degree burglary under an Ohio statute corresponded to second-degree home invasion under MCL 750.110a(3), notwithstanding that “one element of [the Ohio statute] . . . [did] not exactly match MCL 750.110a(3)”).

2.Meaning of Another State

For purposes of scoring an offender’s PRVs, “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). According to the Price Court:

“The common understanding of ‘state’ in Michigan law is a state of the United States, not a province of Canada and not a foreign state. Obviously, Michigan is one of the states that comprise the United States. Thus, the most obvious meaning of ‘another state’ in this context is one of the states, other than Michigan, that comprise the United States. A Canadian conviction is not a conviction for ‘a felony under a law of the United States or another state[.]’” Price, 477 Mich at 4-5.

3.Meaning of Conviction

Caselaw has specified that the following constitute a conviction for purposes of scoring PRV 1:

•Assignment of youthful trainee status under the Holmes Youthful Trainee Act, MCL 762.11 et seq. People v Williams, 298 Mich App 121, 125, 127 (2012).

•A prior conviction entered against an individual who was tried as an adult in a designated proceeding under MCL 712A.2d.³ People v Armstrong, 305 Mich App 230, 243 (2014). It does not matter whether the individual was sentenced as an adult or received a juvenile disposition in the designated proceeding. Id. at 243-244.

See also MCL 777.50(4)(a) (defining conviction).

4.Attempt Convictions

“MCL 777.19 provides that, in addition to the enumerated felonies in [MCL 777.11 to MCL 777.19], attempts to commit certain enumerated felonies are to be sentenced under the guidelines if the attempt constitutes a felony.” People v Jackson, 504 Mich 929, 929 (2019). “MCL 777.19 is . . . relevant to identify the offense classification of a prior attempt conviction for purposes of scoring Prior Record Variable (PRV) 1, MCL 777.51, and PRV 2, MCL 777.52, which expressly incorporate the sentencing guidelines’ offense classifications.” Jackson, 504 Mich at 930, citing People v Wright, 483 Mich 1130 (2009).⁴ In Wright, the Court held that under MCL 777.19(3)(a), attempted assault with intent to do great bodily harm is a class E offense for purposes of scoring PRV 2 (prior low-severity felony convictions):

“Prior Record Variable 1 (PRV 1) was misscored. According to the presentence investigation report, the defendant was scored 25 points for this variable because of a 2005 conviction for attempted assault with intent to do great bodily harm. Because assault with intent to do great bodily harm is a class D offense, and an attempt to commit a class A, B, C, or D offense is a class E offense, the defendant’s prior conviction for attempted assault with intent to do great bodily harm was a class E offense. MCL 777.19(3)(a). The defendant’s prior class E offense should have been treated as a ‘prior low severity felony conviction,’ scorable under PRV 2. MCL 777.52. Therefore, resentencing is required.” Wright, 483 Mich at 1130.