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Can you score 25 points under OV 19 where the defendant was convicted of prisons-prisoner possessing contraband and the defendant possessed Suboxone (buprenorphine)?

The Michigan Court of Appeals has upheld a score of 25 points for OV 19 in other instances involving controlled substances. The trial court properly scored 25 points for OV 19 where the defendant smuggled heroin into a prison and delivered it to a prisoner. People v Dickinson, 321 Mich App 1, 24 (2017). The “delivery of an unquestionably dangerous drug like heroin into the confines of the prison threatened the safety and security of both the guards and the prisoners, and, therefore, threatened the security of a penal institution.” Id. at 23-24 (noting that “MCL 777.49 by its language does not limit the scoring of 25 points for OV 19 only to offenders who smuggled weapons or other mechanical destructive devices into a prison”). In People v Carpenter, 322 Mich App 523, 531 (2018), the Court noted that “[t]he smuggling of controlled substances into a jail is certainly a threat to the security of a penal institution because of the dangers of controlled substances to the users and those around them.” (In Carpenter, 25 points were properly scored for OV 19 where the defendant attempted to smuggle drugs into the jail and assaulted another inmate).

While sentencing decisions are ultimately questions of law for the judge to decide, it appears that case law supports scoring 25 points for OV 19 when the defendant brings a controlled substance into a jail. The circumstances surrounding the defendant’s possession of the Suboxone in your case may affect whether Dickinson and Carpenter support scoring 25 points for OV 19, for example, it is not clear from your question whether the defendant delivered or smuggled the Suboxone into the prison or whether the defendant simply possessed it (in both Dickinson and Carpenter the defendant delivered or attempted to smuggle the controlled substances into the penal intuition). The language of MCL 777.49(a) appears to require an actual threat rather than just an attempt to commit a threat (whereas MCL 777.49(b)-(d) explicitly include attempts), so the facts surrounding the possession of the Suboxone might be relevant to whether there was an actual threat if the defendant in your case did not deliver the Suboxone or bring it into the jail but instead just possessed it, distinguishing this defendant’s conduct from the conduct that has been held to be a threat to the security of the penal institution under OV 19. Because published case law supports the conclusion that the presence of controlled substances in a penal institution threatens the security of that penal institution, see also People v Ward, 483 Mich 1071, 1072 (2009) (Young, J., concurring), quoting MCL 777.49(a) (“It is hard to believe that anyone could sincerely dispute that the presence of illicit drugs ‘threaten[s] the security of a penal institution’”), a score of 25 points for OV 19 is probably appropriate; however, this is ultimately a question of law for the judge to decide.

Tags: OV 19

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