People v. Eaves

203 Mich. App. 356 (1994) 512 N.W.2d 1

PEOPLE
v.
EAVES

Docket No. 155507.

Michigan Court of Appeals.

Submitted June 9, 1993, at Grand Rapids. Decided January 19, 1994, at 9:40 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Andrew J. Marks, Prosecuting Attorney, and Roberts A. Kengis, Assistant Prosecuting Attorney, for the people.

Allen J. Lewis, for the defendant on appeal.

Before: WHITE, P.J., and NEFF and C.C. SCHMUCKER,^[*] JJ.

PER CURIAM.

Pursuant to a plea agreement, defendant pleaded guilty of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), and fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5), in return for the prosecutor's dismissal of three counts of second-degree criminal sexual conduct, one count of assault with intent to commit second-degree criminal sexual conduct, and second felony-offender charges. Defendant received concurrent sentences of five to fifteen years for the second-degree criminal sexual conduct conviction and one to two years for the fourth-degree criminal sexual conduct conviction. Defendant appeals as of right, claiming that in computing the sentence guidelines, the trial court improperly scored two prior record variables (PRVS). We affirm.

Defendant's prior record included several misdemeanor convictions: one drug-related, one larceny-related, and the rest related to operating a vehicle while under the influence of intoxicating liquor (OUIL), and unlawful blood alcohol level (UBAL). Defendant's record also included a conviction of OUIL, third offense, which is a felony under MCL 257.625(6)(d); MSA 9.2325(6)(d). Defendant's presentence report indicated that his conduct was related to an ongoing alcohol abuse problem, which he admitted in court.

On the basis of defendant's dual pleas and his prior criminal record, the sentencing judge initially scored ten points under PRV 2 for a prior low-severity felony conviction, ten points under PRV 5 for four or more prior misdemeanor convictions, and ten points under PRV 7 for one subsequent or concurrent conviction. Defendant successfully contended that his alcohol-related motor vehicle offenses could not be included as misdemeanors under PRV 5, and the judge reduced that score to five points, for two prior misdemeanor convictions. Defendant also contended, unsuccessfully, that his third-offense OUIL could not be included as a prior low-severity felony under PRV 2. Defendant did not contest the PRV 7 score. With PRV scores totaling twenty-five points, and offense variable scores also totaling twenty-five points, defendant's recommended minimum sentence was 48 to 120 months for second-degree criminal sexual conduct. The judge sentenced defendant to a minimum term of sixty months.

On appeal, defendant again contests the PRV 2 score, and challenges the PRV 7 score as well. Defendant's PRV 7 challenge is waived as unpreserved, because he did not raise it at sentencing, or by motion to remand. People v Walker, 428 Mich. 261, 266; 407 NW2d 367 (1987).

A ten-point score under PRV 2 is appropriate where a defendant has previously been convicted of a low-severity felony: The instruction applicable to PRV 2 provides:

A. A low severity felony conviction refers to a conviction for any felony included in the following crime groups and statutory maxima:

Assault (24 month maximum) Burglary (120, 60, 48, 30, 24 month maxima) CSC (30, 24 month maxima) Drug (All) Fraud (All) Larceny (60, 48, 30, 24 month maxima) Property Destruction (All) Weapons Possession (All)

All other felony convictions included in the crime groups covered by the guidelines are high severity convictions.

B. If a prior felony conviction falls outside of the crime groups covered by the guidelines and the judge determines it is similar to a low severity felony conviction (e.g., Escape 750.193), it should be included in scoring this variable.

In contrast to subsection B of the PRV 2 instruction, PRV 5 regarding misdemeanors provides:

Score a misdemeanor only if it is related to one of the following crime groups: Assault, Burglary, Criminal Sexual Conduct, Drug, Fraud, Larceny, Property Destruction, Robbery, or Weapons Possession.

After considering the admissibility of alcohol-related motor vehicle offenses under both PRV 2 and PRV 5, the judge included the felony under PRV 2 but excluded the misdemeanors under PRV 5. Applying the sentencing guidelines' instructions, the judge reasoned that under PRV 2 defendant's third-offense OUIL was sufficiently similar to a drug conviction to warrant inclusion for scoring, because both involved substance abuse.

We note that the judge's decision to omit defendant's many alcohol-related misdemeanors from consideration under PRV 5 was correct. This Court's split of opinion with regard to that issue^[1] was resolved in People v Anway (After Remand), 189 Mich. App. 706; 473 NW2d 804 (1991), which concluded that OUIL, a Vehicle Code violation, was not so similar to drug offenses under the Public Health Code as to warrant inclusion as a drug-related offense.

However, as noted above, the sentencing guidelines allow a sentencing judge to determine whether other felonies falling outside the enumerated crime groups are similar to low-severity felony convictions. If the judge determines that they are similar, they are to be included. While the reasoning in Anway, supra, is determinative under Administrative Order No. 1990-6, 436 Mich. lxxxiv (1990), with regard to scoring under PRV 5, the instructions for scoring PRV 2 contemplate the inclusion of similar crimes outside the crime group. Applying this rule, we find the trial judge's inclusion of the OUIL offense was justified.

In any event, had the judge chosen to score no points for PRV 2, the guidelines would have recommended a minimum range of twenty-four to sixty months. Defendant was sentenced to a minimum of sixty months and thus his sentence fell within the recommended minimum range regardless of whether his third-offense OUIL was included as a prior felony.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Compare People v Jerovsek, 172 Mich. App. 489; 432 NW2d 350 (1988) (OUIL includable as drug offense), with People v Reyna, 184 Mich. App. 626; 459 NW2d 75 (1990) (OUIL not includable as a drug offense).