                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 4, 2015
              Plaintiff-Appellant,

v                                                                  No. 322857
                                                                   Tuscola Circuit Court
TAMMY LOUISE HARBIN,                                               LC No. 13-012672-FH

              Defendant-Appellee.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

       The prosecutor appeals by delayed leave granted1 from the circuit court’s amendment of
defendant’s judgment of sentence. We vacate the amended judgment of sentence and remand for
resentencing.

       Defendant was charged with five controlled substance violations. Pursuant to a plea
agreement, she pled guilty to operating/maintaining a laboratory involving methamphetamine,
MCL 333.7401c(2)(f), and possession of marijuana, MCL 333.7403(2)(d); and in exchange the
prosecutor dropped the remaining charges and subsequent offender enhancements authorized by
MCL 333.7403(2)(d). The court accepted the plea and sentenced defendant as a habitual
offender, fourth offense, MCL 769.12, to concurrent prison terms of 6 to 20 years for each count.

        Thereafter, defendant filed a timely motion to correct an invalid sentence. MCR 6.429.
She alleged errors in the scoring of offense variable 12 (OV 12) and prior record variable 5 (PRV
5). The court granted defendant’s motion with respect to OV 12 and scheduled a hearing
regarding the scoring of PRV 5. Defendant contended that her prostitution convictions should
not be scored under PRV 5 because prostitution is a crime against public order, MCL 750.451;
however, pursuant to MCL 777.16w, and MCL 777.55(2)(a), PRV 5 may only be scored for
“offenses against person or property, weapons offenses, or offenses involving controlled
substances . . . ” Defendant further contended that a 1994 plea-based conviction for OUIL and
unlawful use of a license plate should also be excluded because she was not represented by


1
  People v Harbin, unpublished order of the Court of Appeals, entered September 24, 2014
(Docket No. 322857).


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counsel and the record does not show that she waived her right to court-appointed counsel.
Defendant concluded that excluding the prostitution convictions and the 1994 uncounseled
conviction would reduce PRV 5 from 20 to 5 points.

        The prosecutor conceded that the prostitution convictions should not be used in scoring
PRV 5, so PRV 5 should have been reduced from 20 points to 10 points.2 Regarding the 1994
OUIL conviction, the prosecutor noted that the register of actions from the case showed that an
“advice of rights” form had been filed, from which the prosecutor deduced that defendant had
waived her right to court-appointed counsel. The prosecutor also argued that defendant had not
been entitled to an attorney in any event, because she had not actually been imprisoned for the
1994 OUIL conviction, relying on People v Reichenbach, 459 Mich 109; 587 NW2d 1 (1998).
Defendant agreed with the prosecutor’s reading of Reichenbach, but contended that under People
v Hannan (After Remand), 200 Mich App 123; 504 NW2d 189 (1993), the conviction could not
be used. The court granted defendant’s objection to the scoring of PRV 5. Consequently, PRV 5
was rescored at 5 points, resulting in a total PRV score of 45 and a total OV score of 5, and
therefore a sentencing guidelines range of 36 to 120 months. The court sentenced defendant to
concurrent prison terms of 3 to 20 years.

        The prosecutor maintains on appeal that under Reichenbach, defendant’s 1994 OUIL
conviction should be scored under PRV 5 because indigent misdemeanants are not entitled to
court-appointed attorneys unless they are actually imprisoned. The prosecutor asserts that
because the trial court did not sentence defendant to a term of imprisonment for the 1994 OUIL
conviction, that conviction is constitutionally valid and should be used in scoring PRV 5.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation which [we review] de novo.” Id. We note that the addition of 5 points
to defendant’s total PRV score would raise her PRV level from D to E, resulting in a revised
sentencing guidelines range of 51 to 170 months. Therefore, her present sentence would be
outside the guidelines range and in the absence of any articulation on the record of substantial
and compelling reasons for a guidelines range departure, we would be compelled to reverse it.
See People v Babcock, 469 Mich 247, 255-256; 666 NW2d 231 (2003).

        PRV 5 addresses the scoring of prior misdemeanor convictions or prior misdemeanor
juvenile adjudications. MCL 777.55(1). Unless they would enhance the sentencing offense to a
felony, all prior misdemeanors involving controlled substances, and all those for operating a
vehicle “under the influence or impaired by alcohol, a controlled substance, or a combination of
alcohol and a controlled substance,” are to be scored. MCL 777.55(2). Section 55(1) provides in
part as follows:




2
    The parties agreed that defendant had two other misdemeanor convictions that were scorable.


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       Score prior record variable 5 by determining which of the following apply and by
       assigning the number of points attributable to the one that has the highest number
       of points:

             (a) The offender has 7 or more prior misdemeanor convictions or prior
       misdemeanor juvenile adjudications……………………………….……..20 points

             (b) The offender has 5 or 6 prior misdemeanor convictions or prior
       misdemeanor juvenile adjudications……………………………………...15 points

             (c) The offender has 3 or 4 prior misdemeanor convictions or prior
       misdemeanor juvenile adjudications……………………………….….….10 points

             (d) The offender has 2 prior misdemeanor convictions or prior
       misdemeanor juvenile adjudications……………………………..…….…..5 points


        Neither party disputes that defendant’s 1994 OUIL conviction falls within the category of
misdemeanors that can be scored under PRV 5. The disputed issue is whether the conviction is
constitutionally invalid because it was obtained without benefit of counsel and without waiving
the right to court-appointed counsel. If the conviction is constitutionally invalid, then defendant
argues that it cannot be used to score PRV 5. Hannan, 200 Mich App at 128 (“A sentencing
court may not consider a defendant’s prior felony, misdemeanor, or ordinance convictions
obtained without the benefit of counsel or without a valid waiver of the right to counsel” because
“such convictions are not sufficiently reliable to support the severe sanction of imprisonment.”).

        The United States Supreme Court held in Argersinger v Hamlin, 407 US 25, 37; 92 S Ct
2006; 32 L Ed 2d 530 (1972), that “absent a knowing and intelligent waiver, no person may be
imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was
represented by counsel at his trial.” Seven years later, the Court clarified what the “actual
imprisonment standard” means: “[W]e believe that the central premise of Argersinger—that
actual imprisonment is a penalty different in kind from fines or the mere threat of
imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line
defining the constitutional right to appointment of counsel.” Scott v Illinois, 440 US 367, 373;
99 S Ct 1158; 59 L Ed 2d 383 (1979). Consistent with Argersinger and Scott, our Supreme
Court held in Reichenbach, 459 Mich at 109, that “a defendant accused of a misdemeanor is
entitled to appointed trial counsel only if ‘actually imprisoned.’”

       The prosecutor contends that because defendant was placed on probation for the 1994
OUIL conviction, and because the mere threat of imprisonment does not constitute “actual
imprisonment,” defendant’s uncounseled conviction is constitutionally valid and can be
considered when scoring PRV 5. Defendant contends that under Alabama v Shelton, 535 US
654; 122 S Ct 1764; 152 L Ed 2d 888 (2002), she was entitled to counsel because she was
exposed to possible incarceration, MCL 257.625, if she violated the terms of her probation.
MCL 771.4.

       In Shelton, an indigent defendant was given a suspended sentence of 30 days in the
county prison on an uncounseled misdemeanor conviction for third-degree assault. Shelton, 535

                                                -3-
US at 658. The defendant was placed on two years’ unsupervised probation conditioned on his
payment of a fine, court costs, reparations, and restitution. Id. On appeal, the Alabama Supreme
Court concluded that “a suspended sentence constitutes a ‘term of imprisonment’ within the
meaning of Argersinger and Scott even though incarceration is not immediate or inevitable.” Id.
at 659. It therefore “affirmed [the defendant’s] conviction and the monetary portion of his
punishment, but invalidated that aspect of his sentence imposing 30 days of suspended jail time.”
Id. at 659-660. The United States Supreme Court affirmed, holding that “a suspended sentence
that may end up in the actual deprivation of liberty may not be imposed unless the defendant was
accorded the ‘guiding hand of counsel’ in the prosecution for the crime charged.” Id. at 658
(internal quotation marks and citation omitted).

        Defendant’s reliance on Shelton is misplaced. Shelton expressly declined to address the
issue of whether sentences of probation uncoupled from suspended sentences were
constitutionally valid. Id. at 672-673. Although defendant’s probation was linked to certain
conditions, it was not linked to a suspended sentence of imprisonment. Although it is possible
for a person sentenced to probation to end up incarcerated, the fundamental nature of a probation
sentence differs substantially in both kind and severity from a suspended sentence of
imprisonment. We admit to some skepticism whether a defendant’s entitlement to an attorney
should depend on what ultimately happens after the proceedings to which an attorney might have
made a difference.3 However, the United States Supreme Court assures us that the trial judge
“will have a measure of the seriousness and gravity of the offense and therefore know when to
name a lawyer to represent the accused before the trial starts.” Argersinger, 407 US at 40.
Certainly, trial courts are in the best position to evaluate the situations before them and would
have a strong motivation to err on the side of caution.

        Under the circumstances, because defendant was not, in fact, imprisoned as a result of her
1994 OUIL conviction, the trial court’s decision in that case not to provide her with counsel
satisfies the “actual imprisonment” standard established by Argersinger and Scott, and adopted
by Michigan’s Supreme Court in Reichenbach. Consequently, defendant’s 1994 OUIL
conviction should be used in scoring PRV 5. MCL 777.55(2); Nichols v United States, 511 US
738, 746-747; 114 S Ct 1921; 128 L Ed 2d 745 (1994) (holding that “an uncounseled conviction
valid under Scott may be relied upon to enhance the sentence for a subsequent offense, even
though the sentence entails imprisonment”). Likewise, to the extent Hannan held that no


3
  As an initial matter, a monetary fine could be utterly devastating to a defendant in already-
marginal financial circumstances, possibly even more so than incarceration. If nothing else, it
should be obvious that the “real world” impact of a given fine will have a far greater effect on
someone who cannot afford an attorney than on someone who can. Thus, those persons who
would be disproportionately affected by a fine would seem to also be disproportionately likely to
be unable to properly defend themselves. In any event, all other things being equal, if
incarceration is a possibility, it stands to reason that it is also possible that a defendant who is
deemed not to “need” counsel could, after jeopardy has attached, turn out to have “needed”
counsel after all. However, while those possibilities concern us, no such situation appears before
us today.


                                                -4-
uncounseled conviction may be considered by a sentencing court, it is inconsistent with the
Nichols Court’s explanation of the significance of Scott.

         Defendant contends that even if the 1994 OUIL conviction is itself constitutionally valid,
if it is used to score PRV 5 at 10 points instead of 5 points, her guidelines sentence range
increases by 15 months. Because defendant was sentenced at the bottom of the guidelines range
as scored by the trial court, her minimum prison term necessarily increases by at least the same
length of time, and she argues that this violates Reichenbach’s holding. We disagree. The fact
that scoring defendant’s 1994 OUIL conviction adds to her term of imprisonment is conceptually
distinct from being imprisoned in the first place on an uncounseled conviction. The United
States Supreme Court has “consistently sustained repeat-offender laws as penalizing only the last
offense committed by the defendant.” Nichols, 511 US at 747 (citation omitted); see also
Reichenbach, 459 Mich at 123.

        Defendant’s contention that the prosecutor did not meet its burden to prove that the
uncounseled conviction was valid is also unavailing. The authoritative register of actions clearly
indicates that defendant was not sentenced to jail time and an advice of rights had been filed.

        In sum, the trial court erred in finding that defendant’s 1994 OUIL conviction was
constitutionally infirm and could not be used for scoring PRV 5. We vacate the court’s amended
judgment of sentence and remand the matter to the circuit court for resentencing. We do not
retain jurisdiction.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Amy Ronayne Krause




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