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Can you count a prior Section 7411 offense for which the offender has not yet been sentenced under PRV 1 and PRV 2?

Question as Originally Submitted: The offender was pending sentencing on previous drug charges, and there was an agreement under Section 7411 on the charges that were pending sentencing but the offender committed a new CS-Delivery/Manufacture Heroin less than 50 grams prior to being sentenced on the previous charges. Can I score the previous charges under PRV 1 and PRV 2?

Assuming that the sentencing offense is the new CS-delivery/manufacture heroin offense and the “previous charges” you are wondering if you can score under PRV 1 and 2 are the charges that led to the agreement under Section 7411. 

Even if the previous charges were still pending sentencing, PRV 1 and PRV 2 define prior high or low severity felony to mean, in relevant part, certain specified offenses “if the conviction was entered before the sentencing offense was committed[.]” MCL 777.51(2); MCL 777.52(2). Accordingly, the important question is whether a conviction was entered for the previous charges, not whether the person has been sentenced yet.

If the previous charges were subject to 7411, whether there was a conviction depends on whether the offender successfully completed the 7411 terms and was discharged or whether that status was revoked and a conviction was entered. If Section 7411 status was revoked and a conviction was entered then as long as the conviction was entered before the sentencing offense was committed, you can score it under PRV 1 and PRV 2 even if the offender was not yet sentenced for the conviction. (Assuming the previous charges satisfy the other requirements for a high or low severity felony). See MCL 777.51; MCL 777.52.

However, if the offender was still on probation under Section 7411, and had not yet been discharged/revoked, it is less clear whether you can score that conduct. We’ve previously answered that question, and the answer is available here

Finally, while it does not seem like the facts of your case involve someone successfully completing Section 7411, the language of MCL 333.7411 supports concluding that if the offender was successful, the conduct cannot be counted as a prior conviction and cannot be scored (“Discharge and dismissal under this section shall be without adjudication of guilt and . . . is not a conviction”). See also People v James, 267 Mich App 675, 679-680 (2005).

Tags: PRV 01 PRV 02

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