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Can you score a self-reported prior conviction from Puerto Rico?

Question as originally presented: If we are completing a criminal history for an offender, and the offender self-reports a conviction from another state (in this case, it is actually Puerto Rico), for Aggravated Theft, they reported their sentence (jail and 6 years probation), and we cannot confirm this information with the original jurisdiction or court, can it be scored in the sentencing guidelines, only going on their word? Secondly, Puerto Rico is a U.S. Territory, so can we even consider offenses from U.S. Territories in the PRVs? 

“A trial court determines the sentencing variables by reference to the record, using the standard of preponderance of the evidence.” People v Osantowski, 481 Mich 103, 111 (2008). Accordingly, to count a prior conviction you must find that it occurred by a preponderance of the evidence – meaning that it is more likely than not that the prior conviction occurred. See People v Beck, 504 Mich 605, 609 (2019). Whether an unconfirmed report of a prior conviction meets that standard is ultimately a question for the court to decide based on all the facts; relevant considerations might include why the information could not be confirmed with the original jurisdiction or court and the court’s impression of the veracity of the defendant’s account of the prior conviction. Also note that to count a prior conviction that conviction must have been obtained either with the representation of counsel or waiver of counsel, particularly because a jail sentence was imposed. United States v Tucker, 404 US 443 (1972); People v Moore, 391 Mich 426 (1984); see also Scott v Illinois, 440 US 337 (1979). 

Next, whether a prior conviction from Puerto Rico satisfies the definition of prior misdemeanor conviction under PRV 5 (MCL 777.55) is an open legal question. MCL 777.55(3)(a) defines prior misdemeanor conviction as “a conviction for a misdemeanor under a law of this state, a political subdivision of this state, another state, a political subdivision of another state, or the United States if the conviction was entered before the sentencing offense was committed.” Relying on the interpretation of prior conviction in People v Price, 477 Mich 1, 5 (2006), you can argue that a conviction from Puerto Rico should not be counted when scoring the PRVs because as a U.S. Territory it is not a state, political subdivision of a state, or the United States. In Price, the Court held that for purposes of scoring an offender’s PRVs, “another state” does not include foreign states and scoring a conviction from Canada was improper. While Price did not consider a U.S. Territory, its interpretation of the meaning of “another state” to include only “the states that comprise the United States” and to specifically not apply to other countries could be interpreted as disqualifying a conviction from Puerto Rico. Id. at 4-5. This answer assumes that the sentence of jail and probation was a misdemeanor, but a similar analysis applies to prior felony convictions as all the PRVs define their relevant prior convictions similarly; in Price, the Court was considering the scoring of PRV 1 (prior high severity felony offenses). However, it could also be argued that a conviction in Puerto Rico is a conviction “under the law of the United States” because the First Circuit U.S. Court of Appeals has jurisdiction over the District of Puerto Rico and many federal laws apply to Puerto Rico. This analysis would depend on what specific law the defendant was convicted of violating and if the defendant was convicted by a federal court. There is no binding Michigan authority on whether convictions from Puerto Rico should be counted under the PRVs, and it is ultimately a question of law for the court to decide.

Tags: PRV 01 PRV 02 PRV 05

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