Opinion
Docket No. 115183.
Decided July 16, 1990. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Margaret Mary Chiara, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.
Marian Kromkowski, for defendant on appeal.
Before: MAHER, P.J., and HOLBROOK, JR., and SAWYER, JJ.
Defendant was convicted on his plea of guilty to delivery of less than fifty grams of a mixture containing cocaine. MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). He was thereafter sentenced to serve a term of five to twenty years in prison. He now appeals and we affirm.
Defendant first argues that he is entitled to resentencing because of a misscoring of his convictions under the sentencing guidelines. We disagree. Defendant received a total of four points under the prior record score, placing him at prior record variable class "c." In a motion for resentencing, defendant challenged the two points assessed under PRV 2 and the one point assessed under PRV 6. At the hearing on the motion, the prosecutor conceded that PRV 6 should be scored as a "0," but maintained that PRV 2 was properly scored at two points. The trial court agreed and denied defendant's motion.
The rescoring of PRV 6 at zero points does not affect the guidelines recommendations as the total remaining points, namely, three, are still sufficient to classify defendant at level "C." However, a reduction in the points assessed for PRV 2 would reclassify defendant at level "B" and, therefore, affect the recommendations of the guidelines.
Defendant argues that his 1973 felony conviction for larceny from an automobile should not have been scored under PRV 2 because it was too old. We disagree. Paragraph "H" under Tab 3, Prior Record Variables General Instructions, provides that a prior conviction is not to be scored if it precedes a conviction-free period of ten years or more. The ten-year period is calculated from the date a defendant is discharged from any conviction until the commission of the next offense which results in conviction. If such a ten-year period exists, all convictions preceding the period are ignored in scoring the defendant's prior convictions.
Defendant was sentenced under the first edition of the sentencing guidelines and all references are to that manual.
In the case at bar, defendant concedes that he was released from probation on the larceny from an automobile conviction on December 2, 1974, and that he thereafter pled guilty to operating a motor vehicle while under the influence of intoxicating liquors on November 2, 1984, for which he was sentenced on January 15, 1985. Apparently, the 1984 OUIL offense is the only conviction suffered by defendant within ten years of his discharge from probation on the 1973 conviction. Defendant argues that the OUIL conviction may not be considered in determining whether he has a conviction-free period of ten years or more. We disagree.
The essence of defendant's argument is that OUIL is not one of the crimes listed as a "misdemeanor" for purposes of scoring prior convictions under the sentencing guidelines. The people respond by arguing that OUIL is a "drug" offense and thus may be scored under the guidelines, citing People v Jerovsek, 172 Mich. App. 489; 432 N.W.2d 350 (1988). In Jerovsek, the Court considered whether a prior conviction for OUIL could be scored under PRV 6 (prior misdemeanor convictions). The guidelines, at Tab 3, Prior Record Variables, General Instructions, define "misdemeanor" as used in the guidelines as follows:
D. A misdemeanor refers to any offense punishable by one year or less of incarceration and directly related to one of the following crime groups: robbery, assault, CSC, drug, burglary, larceny, fraud, weapons possession or property destruction.
The Jerovsek Court concluded that OUIL could be considered a drug-related offense.
The Jerovsek Court's analysis does have some merit in that OUIL is related to the abuse of alcohol and alcohol is a drug. However, we are not convinced that the guidelines envisioned such a broad reading of the term "drug" when it listed the crime groups to be considered in scoring prior misdemeanors on a sentencing information report. First, the sentencing guidelines advisory committee did prepare a list of misdemeanors which could be used in assessing points under PRV 6, and OUIL is not on the list under either the drug group or any other crime group. Furthermore, the drug offenses are collected under the Public Health Code with specific sections criminalizing the possession, delivery, or use of various controlled substances. MCL 333.7401 et seq.; MSA 14.15(7401) et seq. OUIL, on the other hand, is a violation of the Michigan Vehicle Code under MCL 257.625; MSA 9.2325. Accordingly, we disagree with our colleagues in Jerovsek and conclude that OUIL is not a "misdemeanor" which may be scored under the guidelines.
The advisory committee's list of misdemeanors may be found under Tab 29 of the guidelines manual.
In fact, we would note that the misdemeanor list prepared by the guidelines advisory committee does contain various motor vehicle violations under the fraud-related crime group, thus making the absence of OUIL from the list all the more conspicuous.
However, we do not believe that such a conclusion prohibits consideration of the OUIL conviction for purposes of determining whether defendant went for ten years without a criminal conviction. The instructions on the ten-year rule provide as follows:
H. Do not score any prior felony convictions, misdemeanor convictions or juvenile delinquency adjudications which precede conviction-free periods of 10 years or more. A conviction-free period exists if more than 10 years have elapsed between the discharge date from any conviction or adjudication and the commission of the next offense which results in conviction. When discharge date is not available, add (a) the amount of time the offender is sentenced to probation, or (b) the amount of time of the minimum incarceration term, to the conviction date to determine an approximate discharge date. To determine whether the decay factor is applicable:
1. Start from the date of the instant offense and go back in time to the most recent prior conviction and determine the discharge date. If there is less than 10 years between the two dates, the most recent prior conviction is to be scored. If the gap is more than 10 years, that prior conviction and any previous convictions are not to be scored.
2. If there is a prior conviction within the most recent 10 year period, start from the offense date of the most recent prior conviction and go back in time to the discharge date of the next prior conviction. If there is less than 10 years between the two dates, the next prior conviction is to be scored. If there is more than a 10 year gap, that prior conviction and all previous convictions are not to be scored.
3. Continue in like fashion until there is a 10 year gap or until there are no further prior convictions. [Tab 3, Prior Record Variables, General Instructions. Emphasis in original.]
Finally, the sentencing guidelines define a conviction as follows:
E. A conviction refers to criminal charges to which the defendant pleads guilty or is found guilty in a court of law. [Emphasis in original.]
With these definitions in mind, we do not believe that a conviction for purposes of determining the applicability of the ten-year rule need be a conviction for an offense which may be scored under the guidelines. Rather, we hold that any criminal conviction is sufficient to establish that the defendant did not have a ten-year period free of convictions. In so concluding, we also consider the fact that the guidelines do consider different prior convictions differently depending on the prior record variable involved. For example, the guidelines differentiate a prior high-severity felony (PRV 1) from prior low-severity felonies (PRV 2) as well as treating separately prior high-severity similar felonies (PRV 3) and prior low-severity similar felonies (PRV 4). Thus, it is conceivable that the guidelines would restrict those misdemeanor convictions which may be scored as a prior misdemeanor conviction under PRV 6, while taking a more expansive view of what constitutes a conviction under the ten-year rule. We believe that the emphasis under the ten-year rule is not on what offense was committed, but whether the defendant was able to be completely conviction-free for a period of at least ten years. The simple fact of the matter is that defendant has not been conviction-free for a ten-year period because he committed OUIL within ten years of his discharge from probation on his prior conviction. Accordingly, we conclude that the ten-year rule is inapplicable to this case and the trial court properly assessed a point under PRV 2 for the prior larceny from an automobile conviction.
Defendant also contends that his 1987 conviction for attempted felonious assault should not be considered in scoring PRV 2. We disagree. Defendant pled guilty on March 20, 1987, to attempted felonious assault. He was sentenced on that conviction on June 19, 1987. The instant offense was committed after the conviction but prior to sentencing, namely, on April 23, 1987. Defendant argues that the relevant date is that of sentencing and not conviction and, since sentencing on the attempted felonious assault did not occur until after the commission of the instant offense, a point should not have been assessed for the assault conviction under PRV 2. We disagree.
The guidelines provide that prior convictions are to be considered only if the conviction occurred prior to the commission of the instant offense:
A. For purposes of scoring, prior convictions refer only to convictions which occur prior to commission of the instant offense. In those instances in which an offender is convicted in two jurisdictions for crimes arising out of the same set of activities, do not count any convictions in one jurisdiction related to those activities as prior convictions when sentencing for the same crimes in the other jurisdiction. [Tab 3, Prior Record Variables, General Instructions.]
A defendant stands convicted of an offense when he is found guilty, be it by trial or by plea. See People v Funk, 321 Mich. 617; 33 N.W.2d 95 (1948). Attorney General ex rel O'Hara v Montgomery, 275 Mich. 504; 267 N.W. 550 (1936); People v Nitti, 10 Mich. App. 454; 157 N.W.2d 306 (1968). Sentencing is merely a consequence of a conviction and is not the conviction itself. Funk, supra at 621; Nitti, supra at 460-461. Accordingly, we conclude that a prior offense may be scored under the sentencing guidelines if the defendant is convicted of the offense, be it by trial or plea, prior to the commission of the instant offense, regardless of when the defendant is sentenced on the prior offense. Since defendant in the case at bar was convicted of attempted felonious assault prior to the commission of the instant offense, the trial court properly scored one point for that conviction under PRV 2.
For the above reasons, we conclude that defendant's prior convictions were properly scored in this case and, therefore, relief is not warranted on this ground.
Defendant next argues that he is entitled to resentencing because the trial court failed to give adequate reasons for imposing a sentence which departed from the recommendations in the guidelines. We disagree. The trial court stated its reasons for departing from the recommendations of the guidelines, including its belief that the assessment of one point under PRV 7 (current relationship to the criminal justice system) gives inadequate consideration to this variable. As this Court has stated many times before, a trial court is not required to justify its departure from the guidelines, it is merely required to articulate the reasons for its departure. See, e.g., People v Terry James, 142 Mich. App. 19; 368 N.W.2d 892 (1985). Here, the trial court explained its reasons for departure and, therefore, no relief to defendant is necessary.
With respect to defendant's argument that, since the trial court believed that PRV 7 is underweighted in the guidelines, the court should merely have gone ahead and assessed additional points for this variable and looked to the recommendations in the grid at the next higher prior record variable level (namely, "D"), this argument is certainly novel. However, there is no authority in the law which would permit the trial court to assess additional points nor for us to require the trial court to do so. A defendant is free, of course, to suggest to a judge who indicates he desires to depart because a particular variable is underweighted to look to the next contiguous cell for a recommendation, but the judge is under no obligation to do so. We would further note that, in the case at bar, were the trial court to have looked at cell "II.D" rather than "II.C," defendant's sentence would then have been within the guidelines.
Affirmed.
HOLBROOK, JR., J., concurred.
I concur with the majority's conclusion that a sentencing court may properly consider a prior conviction for operating a motor vehicle while under the influence of liquor for purposes of determining whether a defendant has been conviction-free for a period of ten years. Accordingly, I would affirm the trial court's sentence. I cannot agree, however, with that portion of the majority's opinion implying that a conviction for OUIL may not be scored as a misdemeanor conviction under the sentencing guidelines, because it is not a "drug-related" offense. In People v Jerovsek, 172 Mich. App. 489, 491; 432 N.W.2d 350 (1988), another panel of this Court directly held that a conviction for OUIL could be properly scored under the guidelines as a drug-related offense. The Jerovsek Court's decision was based in part upon its recognition that the Public Health Code defined "drug" as any substance recognized as a drug in the official United States pharmacopoeia, MCL 333.7105; MSA 14.15(7105), and that alcohol is recognized as a drug therein. I also agree that, because alcohol is recognized as a drug, an alcohol-related offense constitutes a drug-related offense and therefore may be scored as such under the guidelines.