People v. Price
People v. Price
Concurring Opinion
oconcurring). I concur with the memorandum opinion. I write separately only to note that, as the prosecutor has also recognized, I believe the only appropriate circumstance in which a conviction from a foreign nation can be considered a substantial and compelling reason to depart from the sentencing guidelines range is when a defendant has been afforded due process by the foreign nation.
Concurring Opinion
(concurring). I concur fully in the analysis and holding set forth in the memorandum opinion. I write separately to emphasize that foreign convictions can give rise to a substantial and compelling reason to depart from the sentencing guidelines range only “under appropriate circumstances.” Ante at 5 (emphasis added). It is reasonable to conclude that such “appropriate circumstances” would not exist where a defendant was convicted in a foreign nation that does not afford due process rights, and that a conviction from such a nation should not be considered.
Opinion of the Court
MEMORANDUM Opinion.
Pursuant to a Cobbs agreement,
Defendant argues that PRV 1 was misscored. We agree. Defendant was assessed 50 points for PRV 1 on the basis that he had two “prior high severity felony convictions.” MCL 777.51(2) defines a “ ‘prior high severity felony conviction’ ” as “a conviction for a crime listed in offense class M2, A, B, C, or D or for a felony under a law of the United States or another state corresponding to a crime listed in offense class M2, A, B, C, or D, if the conviction was entered before the sentencing offense was committed.” (Emphasis added.) Both of defendant’s prior felony convictions were Canadian convictions.
The common understanding of “state” in Michigan law is a state of the United States, not a province of Canada and not a foreign state. Obviously, Michigan is one of the states that comprise the United States. Thus, the most obvious meaning of “another state” in this context is one of the states, other than Michigan, that
With PRV 1 scored at 50 points and OV 13 scored at 25 points, the guidelines range was 43 to 107 months. The trial court sentenced defendant to 60 months to 15 years. If PRV 1 and OV 13 are scored at zero points, as they should be, the guidelines range is five to 21 months. Therefore, defendant’s sentence is not within the guidelines range.
However, although foreign convictions cannot be considered under PRV 1, they can, under appropriate circumstances, give rise to a substantial and compelling reason to justify a departure from the guidelines range consistent with the standards articulated in People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).
For these reasons, we remand to the trial court for resentencing. On remand, PRV 1 and OV 13 shall be scored at zero and the court shall sentence defendant
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). We reject the prosecutor’s argument that defendant waived any objection to the scoring of the guidelines. People v Wiley, 472 Mich 153; 693 NW2d 800 (2005). The court and defendant did not reach an agreement for a specific sentence. Rather, the prosecutor concedes that defendant generally agreed to a sentence within the guidelines range however the trial court ultimately calculated it.
Defendant also argues that OV 13 was misscored. Again, we agree. Defendant was assessed 25 points for OV 13 on the basis that the instant offense was part of a pattern of criminal activity involving three or more crimes against a person. MCL 777.43(2)(a) provides, “For determining the appropriate points under [OV 13], all crimes within a five-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.” In People v Francisco, 474 Mich 82, 86; 711 NW2d 44 (2006), we held that “only those crimes committed during a five-year period that encompasses the sentencing offense can be considered.” In this case, the two prior offenses occurred on September 16, 1997, and the sentencing offense occurred on September 24, 2002. Because the two prior offenses did not occur within five years of the sentencing offense, they cannot he considered under OV 13.
Likewise, although prior offenses that did not occur within five years of the sentencing offense cannot be considered under OV 13, that does not mean that they cannot give rise to a substantial and compelling reason to justify a departure from the guidelines range consistent with Babcock.
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