People of Michigan v. Lawrence Charles Scribbling ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 13, 2014
Plaintiff-Appellee,
v No. 316769
Lenawee Circuit Court
LAWRENCE CHARLES SCRIBBLING, LC No. 12-015810-FH
Defendant-Appellant.
Before: WHITBECK, P.J., and FITZGERALD and MURRAY, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted his guilty plea convictions of second-degree
home invasion, MCL 750.110a(3), and larceny in a building, MCL 750.360.1 The trial court
sentenced defendant to concurrent prison terms of 51 to 180 months for the second-degree home
invasion conviction and 32 to 48 months for the larceny in a building conviction. We affirm.
This Court granted leave to appeal limited to the issue concerning the scoring of prior
record variable (PRV) 5. “Under the sentencing guidelines, the circuit court’s factual
determinations are reviewed for clear error and must be supported by a preponderance of the
evidence.” People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). Additionally,
“[w]hether the facts, as found, are adequate to satisfy the scoring conditions prescribed by
statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo.” Id.
PRV 5 concerns a defendant’s prior misdemeanor convictions and prior misdemeanor
juvenile adjudications. People v Gibbs, 299 Mich. App. 473, 485; 830 NW2d 821 (2013); MCL
777.55(1). Twenty points are to be scored for PRV 5 if “The offender has 7 or more prior
misdemeanor convictions or prior misdemeanor juvenile adjudications.” MCL 777.55(1)(a).
MCL 777.55(2) provides that the prior misdemeanor conviction or prior misdemeanor juvenile
adjudication must be “an offense against a person or property, a controlled substance offense, or
1
People v Scribbling, unpublished order of the Court of Appeals, entered November 25, 2013
(Docket No. 316769). This Court limited defendant’s appeal to the issue of whether the trial
court properly assessed 20 points for prior record variable (PRV) 5. See id.
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a weapon offense.” MCL 777.55(2). The statute defines a prior misdemeanor juvenile
adjudication as one that is “for conduct that if committed by an adult would be a misdemeanor
under the law of this state, a political subdivision of this state, another state, a political
subdivision of another state, or the United States if the order of disposition was entered before
the sentencing offense was committed.” MCL 777.55(3)(b).
Defendant argues that the trial court erred in considering his prior juvenile misdemeanor
adjudications2 in assessing 20 points for PRV 5 because he was given “diversionary-type”
sentences of “probation, detention, and being made a ward of the court” for these adjudications.
Defendant also contends that these sentences are diversionary because he was 12 to 14 years old
when he committed the offenses. However, probation, detention, and becoming a ward of the
court are not diversionary sentences under the Juvenile Diversion Act, MCL 722.821 et seq.
The Juvenile Diversion Act governs diversion of juvenile offenders from the juvenile
court system and allows for the removal of certain types of cases from the adjudicative process.
The Juvenile Diversion Act defines “diversion” as a placement that results in a minor being
“released into the custody of his or her parent, guardian, or custodian and the investigation is
discontinued” or that results in “[t]he minor and the minor’s parent, guardian, or custodian
agree[ing] to work with a person or public or private organization or agency that will assist the
minor and the minor’s family in resolving the problem that initiated the investigation.” MCL
722.822. The Juvenile Diversion Act describes a process by which a minor is diverted from the
court system, which includes signing a diversion agreement and referral plan. MCL 722.825.
The Juvenile Diversion Act does not apply to defendant’s misdemeanor juvenile
adjudications because the scorable juvenile offenses in this case did not result in diversion from
the court system under the meaning of the Juvenile Diversion Act and did not result in
diversionary dispositions under the act. MCL 722.822(c). Instead, defendant went through the
juvenile court system and entered into plea agreements for nine misdemeanor offenses for which
he was sentenced.3 For these reasons, the trial court did not err in assessing 20 points for PRV 5
because defendant had 7 or more prior misdemeanor juvenile adjudications. See Gibbs, 299
Mich. App. at 485.4 Further, defense counsel was not ineffective for failing to raise a futile
2
The Presentence Information Report indicates that defendant was previously arrested as a
juvenile and had pleaded guilty of nine scorable misdemeanor offenses.
3
Further, defendant has failed to provide support for his contention that age is a factor in
determining whether a juvenile adjudication resulted in a diversionary sentence.
4
Defendant’s reliance on United States v Cruz-Santana, unpublished opinion of the United
States Sixth Circuit Court of Appeals, issued September 10, 1998 (Docket No. 97–5426), in
support of his argument that diversionary sentences from juvenile court should not be considered
in calculating sentencing guidelines is misplaced. The holding in Cruz-Santana, which is not
binding on this Court and which concerned the federal sentencing guidelines, did not involve a
diversionary sentence from a juvenile proceeding, nor did it involve whether dispositions of
probation, detention, or becoming a ward of the court would constitute diversions from juvenile
court under the federal sentencing guidelines. Additionally, defendant’s reliance on People v
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objection to the proper scoring of PRV 5. People v Ericksen, 288 Mich. App. 192, 201; 793
NW2d 120 (2010); People v Mack, 265 Mich. App. 122, 129-130; 695 NW2d 342 (2005).5
Affirmed.
/s/ William C. Whitbeck
/s/ E. Thomas Fitzgerald
/s/ Christopher M. Murray
James, 267 Mich. App. 675; 705 NW2d 724 (2005), is misplaced. In that case, the defendant was
given a deferred sentence on a misdemeanor marijuana charge under MCL 333.7411(3) and the
subsequent discharge and dismissal of the proceedings were without adjudication of guilt. This
Court concluded that the trial court erred in assessing two points for PRV where defendant did
not have a prior misdemeanor conviction. Unlike James, defendant was not given any type of
diversion, delay, or deferral of his juvenile misdemeanor convictions. He pleaded guilty and was
sentenced accordingly.
5
Although this appeal is limited to the issue of the scoring of PRV 5, we address defendant’s
ineffective assistance of counsel argument to the extent that it is related to the issue of PRV 5.
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