COA Opinion: Prior conviction sentencing variable may not be applied where defendant has only pled guilty to other offense
In People v. Gibbs and People v. Henderson, the Court of Appeals considered the sentencing and conviction of two participants in the armed robbery of store. The two defendants appealed a variety of issues. Gibbs first argued that the trial court’s closing of the courtroom after voir dire began violated his right to a public trial. Reviewing for plain error, the Court held that because the parties engaged in a “vigorous” voir dire and the venire was present, assuming there was an error, it did not seriously affect the fairness of the proceedings. Second, Gibbs asserted that the prosecutor violated his Fifth Amendment rights by commenting on the fact that Gibbs did not contact the police or tell his mother about the crime before he was arrested. The Court disagreed, holding that commenting on pre-arrest silence did not violate Gibb’s rights. Third, Gibbs appealed three sentencing errors, one successfully. The Court held that the trial court erred in applying PRV 5, the prior misdemeanor variable, because at the time of sentencing Gibbs had pled guilty to a misdemeanor, but he had not yet been convicted. However, this error did not affect Gibb’s PRV level, so no resentencing was required. Henderson also appealed several sentencing issues, but none successfully. Lastly, Henderson argued that his convictions for both assault with intent to rob while armed and armed robbery violated double jeopardy. The Court agreed. Because there is no substantive difference in the elements of these two crimes, the Court vacated Henderson’s assault conviction.