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)”).

“[Defendant’s] conviction in federal court for involuntary manslaughter was a ‘prior high severity felony’ under MCL 777.51(2)(b).” People v Skippergosh, ___ Mich App ___, ___ (2024) (citation omitted). In this case, defendant was found guilty of domestic violence and child abuse. “At sentencing, [defendant] objected to the scoring of prior record variable (PRV) 1 at 25 points, arguing that his earlier conviction in federal court for involuntary manslaughter should be scored as a prior low severity felony, not a prior high severity felony.” Id. at ___. “The trial court disagreed, reasoning that the federal statute under which [defendant] was convicted was ‘similar’ to the Michigan statute concerning manslaughter.” Id. at ___. “The word ‘corresponding,’ as used in MCL 777.51(2)(b), means ‘similar or analogous.’” Skippergosh, ___ Mich App at ___, citing People v Crews, 299 Mich App 381, 391 (2013). “‘Analogous’ is defined as ‘corresponding in some particular’ and ‘similar’ is defined as ‘having qualities in common.’” Skippergosh, ___ Mich App at ___, citing Crews, 299 Mich App at 391-392. Here, “the federal law is comparable to the Michigan law, as both laws essentially prohibit unlawful killings that are the result of unlawful acts.” Skippergosh, ___ Mich App at ___. “Although the laws are not identical, MCL 777.51(2)(b) only requires that the laws correspond in some respect or have qualities in common[.]” Skippergosh, ___ Mich App at ___. “Further, MCL 777.16p provides that involuntary manslaughter is a Class C felony.” Skippergosh, ___ Mich App at ___. “Because involuntary manslaughter is a Class C felony, and because [defendant] was convicted in federal court of a felony corresponding to that Class C felony, the trial court correctly scored PRV 1 at 25 points.” Id. at ___.

“[S]light variations in [statutory] elements do not relieve a person convicted as a sex offender in another state from registration requirements when the substance of the Michigan and out-of-state offenses is substantially the same.” In re Harder, ___ Mich App ___, ___ (2025). In Michigan, “[t]he prosecution may secure a conviction under MCL 750.145a by proving that the defendant (1) accosted, enticed, or solicited (2) a child (or an individual whom the defendant believed to be a child) (3) with the intent to induce or force that child to commit (4) a proscribed act.” Harder, ___ Mich App at ___ (quotation marks and citation omitted). Petitioner was previously convicted in Iowa of committing lascivious acts with a child in violation of Iowa Code § 709.8. Harder, ___ Mich App at ___. “The Iowa Supreme Court set forth the elements of § 709.8(3) as: (1) the defendant, with or without consent, solicited the victim to engage in a sex act; (2) the defendant intended to arouse or satisfy sexual desires; (3) the defendant was at least of the statutorily specified age (now 16 years); (4) the victim was under the statutorily specified age (now simply ‘a child’); and (5) the defendant and victim were not presently married.” Harder, ___ Mich App at ___, citing State v Propp, 532 NW2d 784, 786 (Iowa, 1995). Harder “present[ed] the question of whether [petitioner’s] release from registry requirements in Iowa comes with a corresponding requirement that [petitioner] be relieved of his registry requirements in Michigan.” Harder, ___ Mich App at ___.

In Harder, petitioner “was convicted by an Iowa court of committing lascivious acts with a child, contrary to Iowa Code § 709.8.” Harder, ___ Mich App at ___. Petitioner “argue[d] that the trial court erred when it denied his petition because he was not convicted of a crime that [was] substantially similar to a Michigan crime.” Id. at ___. Further, “petitioner argue[d] that under MCL 28.722, he is not required to register under Michigan’s [SORA] reporting regime.” Harder, ___ Mich App at ___. Here, “[p]etitioner advocates using the ‘categorical approach’ to determine whether two crimes are substantially similar for purposes of SORA.” Id. at ___. “Under the categorical approach, a court may not consider the actual facts of the defendant’s conduct underlying the crime.” Id. at ___, citing Descamps v United States, 570 US 254 (2013). “If a state-law crime allows for a conviction of a broader category of conduct than could support a conviction under the elements of the generic crime, then the two crimes are not alike under the categorical approach.” Id. at ___. “However, if a state-law conviction could be sustained under the generic crime and the state statute contains a smaller category of conduct than the generic crime, then the two crimes are alike.” Id. at ___. ”In an analogous context, in People v Crews, 299 Mich App 381 (2013), [the Court of Appeals] addressed how courts are to decide whether a Michigan crime corresponds to the crime of another state for the purpose of scoring prior record variables during criminal sentencing.” Harder, ___ Mich App at ___. “MCL 777.51(2)(b) requires that a defendant be assessed points for a felony conviction ‘under a law of the United States or another state corresponding to a crime listed in offense class M2, A, B, C, or D.’” Harder, ___ Mich App at ___, quoting MCL 777.51(2)(b). The Crews Court determined that “[t]aking the plain definition of the terms, . . . ‘correspond’ is defined as ‘similar or analogous.’” Harder, ___ Mich App at ___. The Court concluded that “the plain meaning of correspond does not require statutes to mirror each other under all circumstances; rather, it requires only that statutes be analogous or similar, meaning that they have qualities in common.” Id. at ___ (cleaned up). Similarly, in Harder, “[t]he statutes are substantially similar because all of the material elements of the crimes correspond.” Harder, ___ Mich App at ___. “Therefore, a person such as petitioner who is convicted of lascivious acts with a child under Iowa Code § 709.8 is subject to sex offender registration requirements as a Tier-II offender in Michigan, and the trial court did not err when it determined that Iowa’s statute concerning lascivious acts with a child, Iowa Code § 709.8(3), and Michigan’s accosting a minor for immoral purposes, MCL 750.145a, are substantially similar.” Harder, ___ Mich App at ___ (declining to apply a strict categorical approach to comparing crimes “to determine whether an out-of-state conviction is substantially similar to a Michigan offense for purposes of SORA registration”).

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.