Michigan Court of Appeals Holds PRV 5 Includes Drug Paraphernalia Convictions

On September 11th, 2014, the Michigan Court of Appeals held in a criminal case that prior misdemeanor convictions for possession of drug paraphernalia are properly scored under Prior Record Variable (PRV) 5 in a felony case.

In People v Stevens, Docket No. 312325, the Michigan Court of Appeals addressed the issue of whether prior convictions for possession of drug paraphernalia are properly scored under PRV 5 of the Michigan Sentencing Guidelines.

On appeal, defendant first argues that the trial court erred when it assessed 20 points under PRV 5 on the basis of defendant’s prior misdemeanor convictions. Defendant failed to preserve his challenge to the scoring of PRV 5 for appeal, meaning his claim is unpreserved and reviewed for plain error affecting his substantial rights. People v Loper, 299 Mich App 451, 456-457; 830 NW2d 836 (2013); MCL 769.34(10).

Relevant to defendant’s claim, pursuant to MCL 777.55(1)(a), PRV 5 should be scored at 20 points when the offender has 7 or more prior misdemeanor convictions. The phrase [']prior misdemeanor conviction['] refers to [']a conviction for a misdemeanor under a law of this state, a political subdivision of this state, another state, a political subdivision of another state, or the United States if the conviction was entered before the sentencing offense was committed.['] MCL 777.55(3)(a). However, for purposes of PRV 5, not all prior misdemeanor convictions may be scored. MCL 777.55(2). Specifically, except as provided in MCL 777.55(2)(b), which does not apply in this case, a prior misdemeanor conviction may be counted [']only if it is an offense against a person or property, a controlled substance offense, or a weapon offense.['] MCL 777.55(2)(a).

In this case, defendant has numerous misdemeanor convictions which the trial court considered in scoring defendant 20 points under PRV 5. On appeal, defendant acknowledges that he has 13 misdemeanor convictions, including four for possession of drug paraphernalia, but he asserts that he should have been assessed only 10 points, the score appropriate where the offender has 3 or 4 misdemeanor convictions. See MCL 777.55(1)(c). Defendant argues that only four of his misdemeanor offenses—aggravated assault, resisting and obstructing a police officer, and two trespassing convictions—qualify as offenses against a person or property, a controlled substance offense, or a weapon offense. He specifically asserts that his four convictions for possession of drug paraphernalia may not be counted as controlled substance offenses.

The prosecution concedes error in the scoring of PRV 5, acknowledging that not all of defendant’s misdemeanor convictions should have been counted. However, the prosecution identifies what it considers to be six scoreable offenses: aggravated assault, resisting and obstructing, and four convictions for possession of drug paraphernalia. By the prosecution’s count, defendant’s six scoreable misdemeanors merit a PRV 5 score of 15 points. See MCL 777.55(1)(b).

If the prosecution is correct, any error in the trial court’s scoring was harmless as it did not  affect defendant’s ultimate PRV score and thus did not alter the appropriate guideline range. In contrast, if defendant’s view is correct, a PRV 5 score of 10 points would necessitate resentencing because it will affect defendant’s ultimate PRV score and thus alter the appropriate guideline range. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) ([']Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.[']). Specifically, with a PRV 5 score of 20 points, defendant’s total PRV score was 55 points, giving him a PRV level of E. MCL 777.65. A reduction to 15 points, as advanced by the prosecution, results in a total PRV score of 50 points, which is still a level E; while in contrast, a 10 point score for PRV 5, as championed by defendant, reduces defendant’s total PRV score to 45 points for a PRV level of D. MCL 777.65. Because error, if there is error, in the counting of defendant’s misdemeanor drug paraphernalia offenses would necessitate resentencing, we must decide whether misdemeanor convictions for possession of drug paraphernalia qualify as controlled substance offenses for purposes of scoring PRV 5.

To make this determination, we must ascertain what the Legislature intended when it authorized the counting of a prior misdemeanor conviction under PRV 5 that qualified as a [']controlled substance offense.['] MCL 777.55(2). The Code of Criminal Procedure and, in particular, the statutory provisions relating to the scoring of PRV 5 do not include a definition of the phrase [']controlled substance offense.['] However, this Court has previously recognized that the phrase relates to article 7 of the Public Health Code. See People v Endres, 269 Mich App 414, 418; 711 NW2d 398 (2006), overruled in part on other grounds People v Hardy, 494 Mich 430, 438 n 18; 835 NW2d 340 (2013). Specifically, article 7, which is labeled [']controlled substances,['] includes a definition for the term [']controlled substance['] and it penalizes offenses involving controlled substances. Given article 7’s governance of controlled substances, in Endres, this Court found [']it appropriate to apply the Public Health Code definition of ‘controlled substance’ for purposes of PRV 5,['] and, because alcohol was not included as a controlled substance under the Public Health Code definition, this Court reasoned that the defendant’s alcohol-related misdemeanor convictions could not be scored under PRV 5 as controlled substance offenses. Id. at 418-420.

In keeping with Endres, we again turn to article 7 of the Public Health Code to ascertain whether misdemeanor convictions for possession of drug paraphernalia may be counted toward the scoring of PRV 5 as controlled substance offenses. A definition of drug paraphernalia is specifically provided in article 7 at MCL 333.7451, and this definition makes plain that, while drug paraphernalia is not itself a controlled substance, acts related to drug paraphernalia have been criminalized because of the items’ inextricable link to controlled substances, and, for this reason, offenses involving drug paraphernalia qualify as controlled substance offenses. 

Specifically, [']drug paraphernalia['] refers to [']any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . . .['] MCL 333.7451 (emphasis added). Acts involving drug paraphernalia are then criminalized in MCL 333.7453 and MCL 333.7455. Notably, the statutory definition of drug paraphernalia and the related provisions criminalizing activities associated with drug paraphernalia are found in part 74 of article 7, and part 74 is specifically titled [']offenses and penalties.['] Thus, offenses involving drug paraphernalia have been specifically categorized by the Legislature as offenses within the controlled substances article of the Public Health Code. Given this classification, it is apparent that such offenses may be scored as controlled substance offenses for purposes of PRV 5.

Accordingly, we conclude that, in this case, the trial court properly scored defendant’s misdemeanor convictions for possession of drug paraphernalia under PRV 5. Scoring these offenses and also accepting the prosecution’s concession of error relating to several of defendant’s other misdemeanor convictions, PRV 5 should have been scored at 15 points rather than 20 points. However, this error does not require resentencing because the change to defendant’s PRV score does not alter the appropriate guideline range. See Francisco, 474 Mich at 89 n 8.