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Is an out-of-state misdemeanor conviction for failure to pay child support an offense against a person or property?

No binding legal authority has directly addressed your question, and resolution of the issue is a question of law for the trial court to decide. However, as explained more fully below, we do not think you can score the Wisconsin non-support misdemeanor convictions under PRV 5.

PRV 5 specifically instructs, in relevant part, that prior misdemeanor convictions should only be counted “if it is an offense against a person or property, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a). “Prior misdemeanor conviction” is defined to include a conviction for a misdemeanor under a law of another state. MCL 777.55(3)(a). The prosecution has the burden of proving by a preponderance of the evidence that the crime took place, was committed by the defendant, and the crime’s proper classification. See People v Butler, 498 Mich 859, 859; 865 NW2d 29 (2015).

In People v Maben, 313 Mich App 545, 550 (2015), the Court considered whether a prior misdemeanor conviction for malicious use of a telecommunications device constituted an offense against a person as required by MCL 777.55(2)(a) so that it could be used to score PRV 5. The Court analyzed this issue by first noting that the Michigan Legislature has not adopted classifications for misdemeanor offenses. The Court cited MCL 777.5 and People v. Bonilla–Machado, 489 Mich 412, 422, 803 N.W.2d 217 (2011) (noting that the offense categories stated under MCL 777.5 apply to felonies for purposes of scoring the OVs). Similarly, the Michigan Legislature has not adopted a classification for Wisconsin offenses; however, it has categorized the felony of failure to pay child support in Michigan (MCL 750.165) as a crime against public order. MCL 777.16i. The fact that an analogous offense has specifically been classified as a crime against public order in Michigan suggests that it should not be used to score PRV 5 because it is not a crime against a person or property. However, it is not clear that this designation is binding. See People v Outtoee, unpublished per curiam opinion of the Court of Appeals, issued November 12, 2015 (Docket No. 322719), p 3 (noting that the rule from Bonilla-Machado that the statutorily designated offense categories control does not apply to scoring PRV 5 because PRV 5 involves prior misdemeanor convictions). Note that unpublished decisions are not binding. 

Both Maben and Outtoee examined the statutory language of the misdemeanors at issue in those cases to determine whether they could qualify as crimes against a person for purposes of scoring PRV 5. In Maben, the Court analyzed the language of MCL 750.540e(1) (the misdemeanor offense of malicious use of a telecommunications device), and concluded that because the statutory language specifically prohibits using such a device against another person it could properly be considered a crime against a person. Id. at 549-550. The Maben Court distinguished two analogous felonies (MCL 750.540 and MCL 750.167d) because those offenses “do not proscribe activity directed at a particular individual,” and MCL 750.540e(1) “specifically addresses communications directed at ‘another person.’” Id. at 550. 

In Outtoee, the Court concluded that the misdemeanor of “disorderly person-jostling,” in violation of MCL 750.167(1)(l) was a crime against a person because the language specifically referenced people, concluding that “[t]he offense of disorderly person-jostling, by definition, includes an act against a person.” Outtoee, unpub op at p 3.

Assuming the Wisconsin misdemeanors were violations of Wis Stat § 948.22(3), the relevant statutory language to examine is: “Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.” This language does not have the same type of specific references to persons or property that the Court in Maben and Outtoee relied on to conclude the offenses at issue in those cases were crimes against a person. The lack of specific statutory language referencing any action against a person or property in combination with the fact that in Michigan, the analogous felony offense is classified as a crime against public order suggests that these WI misdemeanors should not be counted for purposes of scoring PRV 5. However, as previously stated, this is ultimately a question of law for the trial court to decide.

Tags: PRV 05

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