COA: Misdemeanor drug paraphernalia conviction is a controlled substance offense for purposes of PRV 5

In People v. Stevens, No. 312325, the Court of Appeals held that a misdemeanor conviction for possession of drug paraphernalia should be scored under prior record variable (“PRV”) 5 of the Michigan Sentencing Guidelines. Because “drug paraphernalia” is defined under the Public Health Code as instruments used to manufacture or ingest a “controlled substance,” the court found that a misdemeanor conviction for possession of drug paraphernalia is a controlled substance offense for the purposes of PRV 5. Criminal practitioners should take note of this sentencing guideline determination when considering potential challenges to their client’s pre-sentence investigation report.

The defendant appealed from a conviction of assault with intent to do great bodily harm arising from a stabbing. The trial court sentenced the defendant to 7 to 20 years in prison as a habitual offender under MCL 769.12. On appeal, the defendant argued that the court improperly assessed him 20 points, for 7 or more misdemeanor convictions, under PRV 5. Under PRV 5, only misdemeanor convictions for offenses against a person or property, controlled substance offenses, and weapons offenses are to be counted. The trial court counted four misdemeanor convictions for possession of drug paraphernalia as prior misdemeanor convictions under the provision. The defendant argued that drug paraphernalia convictions do not qualify as controlled substance offenses.

The court noted that since the Code of Criminal Procedure does not define “controlled substance,” courts look to the Public Health Code for its definition in criminal matters. Similarly, to define “drug paraphernalia,” the court looked to the definition in the Public Health Code, MCL 333.7451. Because the definition of “drug paraphernalia” specifically refers to instruments used to manufacture or ingest a “controlled substance,” the court found that a misdemeanor conviction for possession of drug paraphernalia is a controlled substance offense for the purposes of PRV 5. The defendant was thus not entitled to resentencing.

The court also rejected the defendant’s sufficiency of the evidence challenge, reasoning that since the defendant entered the victim’s home uninvited armed with a knife and started a fight, the intent to do great bodily harm could be inferred by the factfinder. Further, the court rejected the defendant’s claim that the prosecution failed to disprove his claim of self-defense because by entering the victim’s home uninvited, he was not in a place where he had a legal right to be as required by Michigan’s self-defense statute, MCL 780.972(1)(a).