People v. Stevens

• Decision Date: 11 September 2014
• Docket Number: Docket No. 312325.
• Parties: PEOPLE v. STEVENS.
• Court: Court of Appeal of Michigan — District of US

306 Mich.App. 620

858 N.W.2d 98

PEOPLE

v.STEVENS.

Docket No. 312325.

Court of Appeals of Michigan.

Submitted Sept. 3, 2014, at Detroit.

Decided Sept. 11, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, PC (by Michael J. McCarthy ), for defendant.

Before: HOEKSTRA, P.J., and WILDER and FORT HOOD, JJ.

Opinion

PER CURIAM.

Following a jury trial, defendant appeals as of right his conviction of assault with intent to do great bodily harm (AWIGBH), MCL 750.84. The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 7 to 20 years' imprisonment. Because the prosecution presented sufficient evidence to support defendant's conviction for AWIGBH and any error related to the scoring of prior record variable (PRV) 5 does not entitle defendant to resentencing, we affirm.

Defendant's conviction arises from a stabbing that occurred on March 7, 2012. At the time of the stabbing, the victim, Luther Allbright, lived with two women, Maria Castillo and Sandra Williams. The evening before the stabbing, defendant and Williams went to defendant's apartment, approximately two blocks from Allbright's house. When Williams did not return to Allbright's house, Castillo became concerned, and she and Allbright went to defendant's apartment. After Castillo aggressively knocked on the apartment door, defendant opened the door and punched Castillo, at which time Allbright departed from the building without entering defendant's apartment. Sometime later, Castillo and Williams also departed; but defendant ran after the women and stopped them. Defendant frisked Williams, supposedly looking for possessions he claimed were missing from his apartment.

The following afternoon, defendant went to Allbright's home and a fight ensued. In particular, according to Allbright, defendant entered his home uninvited and asked, “Why did you bring all that drama to my house?” Defendant then punched Allbright in the face, after which defendant wrestled him to the ground. While the two rolled on the ground, defendant stabbed Allbright twice in the left side of his back, once in the right side of his back (puncturing Allbright's lung), and once in his left arm. He then pinned Allbright to the ground and told him, “I'm King Tut, bitch.” Afterward, defendant left Allbright's house, purchased beer at a party store, and returned to his apartment.

At trial, defendant conceded that he brought a knife to Allbright's home and that he stabbed Allbright, but he claimed that he acted in self-defense. According to defendant's version of events, he suffers from several medical conditions, including congestive heart failure

. Defendant maintained that, during the fight, Allbright ended up on top of defendant while they were wrestling on the ground and, because of his medical conditions, defendant could not breathe, which prompted him to pull a knife and stab Allbright several times.

The trial court instructed the jury on the theory of self-defense; however, the jury convicted defendant of AWIGBH.¹ The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 7 to 20 years' imprisonment. Defendant now appeals as of right.

On appeal, defendant first argues that the trial court erred when it assessed 20 points under PRV 5 on the basis of defendant's prior misdemeanor convictions. Defendant failed to preserve his challenge to the scoring of PRV 5 for appeal, meaning his claim is unpreserved and reviewed for plain error affecting his substantial rights. People v. Loper, 299 Mich.App. 451, 456–457, 830 N.W.2d 836 (2013) ; MCL 769.34(10).

Relevant to defendant's claim, under MCL 777.55(1)(a), PRV 5 should be scored at 20 points when the offender has seven or more prior misdemeanor convictions. The phrase “prior misdemeanor conviction” refers to “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.” MCL 777.55(3)(a). However, for purposes of PRV 5, not all prior misdemeanor convictions may be counted when determining how many prior misdemeanor convictions a defendant has. MCL 777.55(2). Specifically, except as provided in MCL 777.55(2)(b), which does not apply in this case, a prior misdemeanor conviction may be counted “only if it is an offense against a person or property, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a).

In this case, defendant has numerous misdemeanor convictions that the trial court considered when it assessed defendant 20 points under PRV 5. On appeal, defendant acknowledges that he has 13 misdemeanor convictions, including four for possession of drug paraphernalia, but he asserts that he should have been assessed only 10 points, the score appropriate when the offender has 3 or 4 misdemeanor convictions. See MCL 777.55(1)(c). Defendant argues that only four of his misdemeanor offenses—aggravated assault, resisting and obstructing a police officer, and two trespassing convictions—qualify as offenses against a person or property, a controlled substance offense, or a weapon offense. He specifically asserts that his four convictions for possession of drug paraphernalia may not be counted as controlled substance offenses.

The prosecution concedes error in the scoring of PRV 5, acknowledging that not all of defendant's misdemeanor convictions should have been counted. However, the prosecution identifies what it considers to be six offenses that could have been properly counted under PRV 5: aggravated assault, resisting and obstructing, and four convictions for possession of drug paraphernalia.² By the prosecution's count, defendant's prior misdemeanors merit a PRV 5 score of 15 points. See MCL 777.55(1)(b).

If the prosecution is correct, any error in the trial court's scoring was harmless as it did not affect defendant's ultimate PRV score and therefore did not alter the appropriate guideline range. In contrast, if defendant's view is correct, a PRV 5 score of 10 points would necessitate resentencing because it would affect defendant's ultimate PRV score and thus alter the appropriate guidelines range. See People v. Francisco, 474 Mich. 82, 89 n. 8, 711 N.W.2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). Specifically, with a PRV 5 score of 20 points, defendant's total PRV score was 55 points, placing him in PRV Level E. MCL 777.65. A reduction to 15 points, as advanced by the prosecution, results in a total PRV score of 50 points, which still places defendant in PRV Level E. In contrast, a 10–point score for PRV 5, as championed by defendant, reduces defendant's total PRV score to 45 points, placing him in PRV Level D. Id. Because error, if there is error, in the counting of defendant's misdemeanor drug paraphernalia offenses would necessitate resentencing, we must decide whether misdemeanor convictions for possession of drug paraphernalia qualify as controlled substance offenses for purposes of scoring PRV 5.

To make this determination, we must ascertain what the Legislature intended when it authorized the counting of a prior misdemeanor conviction under PRV 5 that qualified as a “controlled substance offense.” MCL 777.55(2)(a). The Code of Criminal Procedure and, in particular, the statutory provisions relating to the scoring of PRV 5 do not include a definition of the phrase “controlled substance offense.” However, this Court has previously recognized that the phrase relates to Article 7 of the Public Health Code. See People v. Endres, 269 Mich.App. 414, 418, 711 N.W.2d 398 (2006), overruled in part on other grounds by People v. Hardy, 494 Mich. 430, 438 n. 18, 835 N.W.2d 340 (2013). Specifically, Article 7, which is titled “controlled substances,”³ includes a definition for the term “controlled substance” and it penalizes offenses involving controlled substances. Because Article 7 governs controlled substances, in Endres, this Court ruled “it appropriate to apply the Public Health Code definition of ‘controlled substance’ for purposes of PRV 5,” and, because alcohol was not identified as a controlled substance under the Public Health Code definition, this Court reasoned that the defendant's alcohol-related misdemeanor convictions could not be counted under PRV 5 as controlled substance offenses. Id. at 418–420, 711 N.W.2d 398.

In keeping with Endres, we again turn to Article 7 of the Public Health Code to ascertain whether misdemeanor convictions for possession of drug paraphernalia may be counted toward the scoring of PRV 5 as controlled substance offenses. A definition of drug paraphernalia is specifically provided in Article 7 at MCL 333.7451, and this definition makes plain that, while drug paraphernalia is not itself a controlled substance, certain acts related to drug paraphernalia have been criminalized because drug paraphernalia is inextricably linked to controlled substances. For this reason, offenses involving drug paraphernalia qualify as controlled substance offenses. Specifically, “drug paraphernalia” refers to “any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance ....” MCL 333.7451 (emphasis added). Acts involving drug paraphernalia are then criminalized in MCL 333.7453 and MCL 333.7455. Notably, the statutory definition...