2.6PRV 2—Prior Low Severity Felony Convictions

A.Scoring

Step 1: Determine whether the offender has any convictions that qualify as prior low severity felony convictions.¹ MCL 777.52(1). If the defendant has previous convictions to which PRV 2 applies, go to Step 2.

Step 2: Determine which of the statements listed in the variable apply to those prior low severity felony convictions and assign the point value corresponding to the applicable statement having the highest number of points. MCL 777.52(1).

B.Issues

1.Meaning of Another State Does Not Include Foreign 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). Relevant language used in PRV 2 is the same as the language used in PRV 1. MCL 777.52(2). See Section 2.4(B)(2) for a detailed discussion of Price.

2.Example of Prior Conviction Under the Law of Another State

An Indiana felony conviction arising from the defendant’s purchase of a stolen firearm constituted a prior low severity felony conviction under the law of another state for purposes of scoring PRV 2, even though the defendant served only one year in jail for the Indiana felony. People v Meeks, 293 Mich App 115, 118 (2011). The Court, noting that Indiana law did not provide for a misdemeanor-level violation for the defendant’s conduct, concluded that “a felony remains a felony even if a jurisdiction’s peculiarities related to sentencing cause the sentence to mimic one for a misdemeanor.” Id. The Court further noted that even though the defendant’s conduct of purchasing a stolen firearm for $175 constituted a violation of MCL 750.535(5) under Michigan law (misdemeanor receiving and concealing), the defendant’s conduct more specifically fell under MCL 750.535b, receiving a stolen firearm, which is a class E felony under Michigan law. Meeks, 293 Mich App at 118-119 (noting that “when a specific statutory provision differs from a related general one, the specific one controls”).

3.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).² 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.