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Can you count a misdemeanor conviction of Escape that was originally charged as a felony Escape under PRV 5?

Under PRV 5, you can only count a prior misdemeanor conviction “if it is an offense against a person or property, a controlled substance offense, or a weapon offense,” or a qualifying operating a vehicle type offense not relevant to your question. MCL 777.55(2). Do not count a prior conviction used to enhance the sentencing offense to a felony. Id. Accordingly, the issue that must be resolved in order to determine whether you should score the misdemeanor escape conviction is whether that escape conviction qualifies as an offense against a person or property, a controlled substance offense, or a weapon offense. The felony that was originally charged is categorized as a crime against public safety, which is not one of the categories that can be counted under PRV 5. See MCL 750.197c; MCL 777.16j. However, misdemeanors themselves are not officially categorized by the sentencing guidelines, and there is caselaw construing PRV 5 that relies on the specific conduct that the offender engaged in that resulted in the misdemeanor conviction to determine whether that conviction can be scored under PRV 5. See, e.g., People v Crews, 299 Mich App 381, 397-398 (2013) (holding PRV 5 could not be scored for a misdemeanor where the PSIR specifically indicated that the conduct underlying the disorderly conduct conviction was not for an offense against a person, property, controlled substance offense, or weapons offense).

Assuming the misdemeanor conviction was under MCL 750.197a, the statutory language provides: “A person who breaks or escapes from lawful custody under any criminal process, including periods while at large on bail, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00.” This statutory language offers little clues in regard to what specific conduct must have occurred in order for the person to escape, and does not give you much to determine whether a conviction under this statute would qualify as a crime against a person, property, controlled substance offense, or weapon offense. The felony that was originally charged, violation of MCL 750.197c(1), criminalizes an escape through “the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made[.]” While MCL 777.16j categorizes this felony as a crime against public safety, it is possible that the conduct that resulted in the charge could be characterized as one of the qualifying offenses for scoring PRV 5. For example, if the offender escaped the prison by violently assaulting guards, you could argue that the conduct underlying the misdemeanor offense was a crime against a person and that the offense should be scored under PRV 5. This is similar to the logic used to decide whether to score misdemeanor disorderly conduct under PRV 5 – you have to have information about the actual conduct that resulted in the conviction. If all you have is the fact that the person was originally charged with felony escape under MCL 750.197c (a public safety crime) and ultimately convicted of the misdemeanor escape without any other details, then you probably cannot score PRV 5 for the misdemeanor escape conviction because you don’t have information to support the conclusion that it was a qualifying offense type and it would be possible to violate the statute without engaging in any offense against a person, property, controlled substance offense, or a weapons offense. 

However, note that in an unpublished case, the Court observed that “Crews did not include any discussion of whether [the courts] should look only to the nature of the crime or to the facts underlying the offense committed.” People v Lampe, unpublished per curiam opinion of the Court of Appeals, issued June 23, 2016 (Docket No. 326660), p 2-3 (noting that Crews considered an attempt offense specifically tied to the crime attempted, which was a controlled substance offense and holding that Crews did not control the outcome in the case where the offense of conduct unbecoming of an officer did not fall within one of the categories in PRV 5 because the offense “only generally proscribes conduct that is ‘dishonoring’”). But see People v Outtoee, unpublished per curiam opinion of the Michigan Court of Appeals, issued May 2, 2016 (Docket No. 322719), p 3 (specifically noting that “[f]or purposes of PRV 5, we look to the Presentence Investigation Report (PSIR) and the prior offense to determine whether it was an offense against a person or property, a controlled substance offense, or a weapon offense”). Note that unpublished opinions are not binding precedent under MCR 7.215(C)(1). 

Ultimately, resolution of this issue is a question of law for the court to decide.

Tags: PRV 05

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