                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 13, 2018
               Plaintiff-Appellee,

v                                                                   No. 336617
                                                                    Schoolcraft Circuit Court
KENNETH DANIEL BRUNKE,                                              LC No. 2015-006828-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and CAMERON, JJ.

PER CURIAM.

         Defendant appeals by leave granted from his plea-based convictions of obstruction of
justice, MCL 750.505, and making false or misleading statements during a violent crime
investigation (lying to a police officer), MCL 750.479c(2)(d). See People v Brunke, unpublished
order of the Court of Appeals, entered February 28, 2017 (Docket No. 336617). He was
sentenced to 40 to 60 months’ imprisonment for the obstruction of justice conviction and 32 to
48 months’ imprisonment for the lying to a police officer conviction. Defendant challenges his
sentences and an order imposing $2,001.00 in restitution, to be paid jointly and severally with his
co-defendant, Garry Cordell. We affirm defendant’s convictions, but vacate the trial court’s
restitution order.

                                       I. BACKGROUND

       Defendant was charged with 14 felonies related to the homicides of Carrie Nelson,
Heather Aldrich, and Jody Hutchinson. He pleaded guilty to charges of obstruction of justice
and lying to a police officer in exchange for the dismissal of the other 12 charges and his
testimony against Cordell at his murder trial.

       At defendant’s plea hearing, defendant testified that he came home from work and was
confronted in his garage by Cordell, who was armed with defendant’s pistol. Cordell told
defendant to go into his basement, where the bodies of Nelson and Hutchinson were located. A
woman named Marietta Carlson was also waiting in the basement. Cordell told defendant that
Aldrich’s body was in defendant’s bedroom. Cordell then asked defendant if he had any
gasoline. While he did not recall his specific response, defendant acknowledged that he
“probably did” have gasoline. Defendant then helped Cordell and Carlson move the bodies from

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the basement into the victims’ vehicle. Cordell and Carlson then drove the victims’ vehicle
while defendant followed in his own vehicle. The victims’ vehicle was then set on fire by either
Cordell or Carlson, and defendant then drove himself, Carlson, and Cordell back to his house,
where they all destroyed the clothes they were wearing.

         Defendant fled to Illinois because he knew a homicide investigation would ensue. In
Illinois, he changed the tires on his vehicle used to drive to and from the site where the bodies
were burned. When questioned by a state police detective, defendant lied stating that he last saw
the victims when they left his house, alive.

                                           II. ANALYSIS

                        A. SCORING OF SENTENCING GUIDELINES

         Defendant first contends that the trial court improperly scored Offense Variables (OV) 1,
9, and 12. While OVs 1 and 12 were properly scored, we agree the trial court erred in scoring
OV 9. “The proper interpretation and application of the legislative sentencing guidelines are
questions of law, which [we] review[] de novo.” People v Cannon, 481 Mich 152, 156; 749
NW2d 257 (2008). “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 an appellate court reviews de novo.” Id. While
the sentencing guidelines are now advisory, the Michigan Supreme Court has stated that the trial
court must nonetheless score them and take them into account when imposing a sentence.
People v Lockridge, 498 Mich 358, 391-392 n 28; 870 NW2d 502 (2015).

        Defendant first argues that the trial court improperly scored 20 points under OV 1
(aggravated use of weapon). MCL 777.31(1)(b) provides that 20 points should be scored if
“[t]he victim was subjected or exposed to a harmful biological substance, harmful biological
device, harmful chemical substance, harmful chemical device, harmful radioactive material,
harmful radioactive device, incendiary device, or explosive device.” MCL 777.31(1)(b). An
“incendiary device” includes “gasoline or any other flammable substance, a blowtorch, fire
bomb, Molotov cocktail, or other similar device.” MCL 777.31(3)(b).

        Defendant argues that he should have been scored zero points for OV 1 because (1)
Cordell was allegedly not scored any points for OV 1, and (2) defendant was not involved in a
multiple offender case. Defendant cites MCL 777.31(2)(b), which provides that “[i]n multiple
offender cases, if 1 offender is assessed points for the presence or use of a weapon, all offenders
shall be assessed the same number of points.” However, contrary to defendant’s argument, the
statute does not state that if one offender is not assessed any points for OV 1, then none of the
offenders may be assessed points for OV 1. A trial court may consider “all record evidence
before it when calculating the guidelines, including, but not limited to, the contents of a
presentence investigation report, admissions made by a defendant during a plea proceeding, or
testimony taken at a preliminary examination or trial.” People v Ratkov (After Remand), 201
Mich App 123, 125; 505 NW2d 886 (1993). The victims were subjected to gasoline, which is an
incendiary device under MCL 777.31(1)(b) and (3)(b), when their bodies were burned in their

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vehicle using gasoline that defendant admitted “probably” came from his house. He also
admitted that he assisted in transporting the bodies out of his home to the location where they
were burned, and he drove Cordell and Carlson back to his house where the three of them
destroyed their clothes. Not only does this evidence prove that defendant exposed the victims to
an incendiary device, the fact that defendant acted in concert with Cordell and Carlson shows he
was part of a multiple offender situation. Defendant admitted using or assisting in the use of an
incendiary device to conceal multiple homicides. Thus, there was sufficient evidence to score 20
points for OV 1.

        Defendant also argues that the trial court improperly scored 10 points for OV 9 (number
of victims). MCL 777.39(1)(c) provides that 10 points should be scored if “[t]here were 2 to 9
victims who were placed in danger of physical injury or death, or 4 to 19 victims who were
placed in danger of property loss.” MCL 777.39(1)(c). Defendant contends that he should have
been scored zero points for OV 9 because “the sentencing offenses of lying to a peace officer and
obstruction of justice do not in themselves have physical victims.” In People v McGraw, 484
Mich 120, 134; 771 NW2d 655 (2009), our Supreme Court held that in scoring OV 9, trial courts
must consider only the conduct during the offense. Here, defendant’s conduct during the
charged offense included changing the tires on his vehicle and lying to a police officer. This
conduct did not place any victims in danger. The McGraw Court expressed its concern that
prosecutors could dismiss charges stemming from violent behavior only to “resurrect” such
charges at sentencing in another form. Id. Here, as in McGraw, the prosecutor cannot use
dismissed murder charges as part of a plea and then use those unproven allegations to score OV
9. Even more, the evidence at the plea hearing was that defendant arrived at his house after the
victims were already murdered. Therefore, defendant’s conduct could not place the victims in
danger of physical injury or death, and the trial court erred when it scored 10 points for OV 9.

        Defendant also argues that the trial court improperly scored 10 points for OV 12
(contemporaneous felonious criminal acts). MCL 777.42(1) provides that 10 points should be
scored if either “[t]wo contemporaneous felonious criminal acts involving crimes against a
person were committed,” or “[t]hree or more contemporaneous felonious criminal acts involving
other crimes were committed.” MCL 777.42(1)(b)-(c). A felonious criminal act is
“contemporaneous” if the act occurred within 24 hours of the sentencing offense and the act has
not and will not result in a separate conviction. MCL 777.42(2)(a). Defendant argues that he
should have been scored zero points for OV 12 because there was no evidence in the record
showing that he committed other contemporaneous felonious criminal acts besides his two
convictions for obstruction of justice and lying to a police officer. However, the record reflects
that defendant committed at least “three . . . contemporaneous felonious criminal acts involving
other crimes” because he admitted to several acts of obstruction of justice in addition to those of
which he was convicted, and he also tampered with evidence. MCL 777.42(1)(c). Indeed,
although the basis for defendant’s obstruction of justice charge only stemmed from his acts of
leaving the state and changing his car tires, he also obstructed justice by loading the victims’
bodies into their vehicle, providing the gasoline used to burn the victims’ vehicle and bodies, and
driving Cordell and Carlson back to their house. Defendant also tampered with evidence by
assisting in burning the victims’ vehicle and bodies and by destroying his and the other
perpetrators’ clothes. These acts constituted “felonious criminal acts involving other crimes”
that were committed within 24 hours of the obstruction of justice sentencing offense and would


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not result in separate convictions. MCL 777.42(1)(c) and (2)(a). Therefore, the trial court’s
score of 10 points for OV 12 was appropriate.

        Without the 10 points assessed for OV 9, defendant’s OV score for the obstruction of
justice conviction would have been 45 points. This reduction places him in OV level IV instead
of OV level V and changes the minimum range calculated under the sentencing guidelines from
7 to 23 months to 5 to 23 months. See MCL 777.66.1 Normally, a scoring error that alters the
minimum range calculated under the sentencing guidelines entitles a defendant to resentencing.
See People v Francisco, 474 Mich 82, 88-89; 711 NW2d 44 (2006). However, in this case, the
trial court departed from the guidelines range, and if the departure is reasonable, a remand is
unnecessary. See People v Ambrose, 317 Mich App 556, 565; 895 NW2d 198 (2016) (stating
that remand is not required “for a Francisco error when we have determined (as in this case) that
a sentencing departure is reasonable under Lockridge and that the sentence ‘did not rely on the
minimum sentence range from . . . improperly scored guidelines.’ ”). Thus, if the departure in
this case was reasonable, remand is not required.

              B. UPWARD DEPARTURE FROM SENTENCING GUIDELINES

       Defendant next argues that the trial court abused its discretion when it departed from the
sentencing guidelines and sentenced him to 40 to 60 months for the lying to a police officer
conviction and 32 to 48 months for the obstruction of justice conviction. We disagree.

        We review a trial court’s imposition of upward departure sentences for an abuse of
discretion. People v Steanhouse, 500 Mich 453, 476; 902 NW2d 327 (2017). “[A] given
sentence can be said to constitute an abuse of discretion if that sentence violates the principle of
proportionality, which requires sentences imposed by the trial court to be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.” People v Milbourn,
435 Mich 630, 636; 461 NW2d 1 (1990), overruled by statute as recognized in People v
Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011), adopted in Steanhouse, 500 Mich at 471-
475.

         Defendant contends that because his sentencing guidelines fell within an intermediate
sanction cell, his sentencing guidelines were mandatory, requiring the trial court to give
substantial and compelling reasons to depart upward. However, the Michigan Supreme Court in
Lockridge abandoned the requirement that courts must give substantial and compelling
justification for a departure sentence. Lockridge, 498 Mich at 391. While the Lockridge
decision specifically applied this rule to MCL 769.34(2) and MCL 769.34(3), the Supreme Court
noted that “[t]o the extent that any part of MCL 769.34 or another statute refers to use of the
sentencing guidelines as mandatory or refers to departures from the guidelines, that part or
statute is also severed or struck down as necessary.” Id. at 365 n 1. MCL 769.34(4) is the
portion of the statute that addresses intermediate sanction cells, and so, consistent with the
directive from Lockridge, the part of MCL 769.34(4)(a) that mandates that a trial court impose


1
 Without the 10 points assessed for OV 9 on the lying to a police officer conviction, defendants’
minimum range does not change. See MCL 777.67. Defendant’s OV level remains at level III.


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an intermediate sanction cell “unless the court states on the record a substantial and compelling
reason to sentence the individual to the jurisdiction of the department of corrections” is severed
from the statute. Therefore, the trial court was not required to give substantial and compelling
reasons to justify its sentencing decision.

       Further, this Court has applied the Lockridge directive to intermediate sanction cells.
People v Schrauben, 314 Mich App 181, 194; 886 NW2d 173 (2016) (“However, our Supreme
Court in Lockridge specifically stated that any part of MCL 769.34 that refers to the guidelines
as mandatory or refers to departures from the guidelines is severed or struck down.” (citation
omitted)). Accordingly, under Lockridge, the trial court was not required to impose the
intermediate sanction in defendant’s sentencing.

       Defendant also argues that the trial court’s upward departure from the sentencing
guidelines was not reasonable or proportionate. We review the reasonableness of a departure
sentence by applying the principle of proportionality set forth in Milbourn, 435 Mich 630.
Steanhouse, 500 Mich at 476-477. The Court of Appeal’s Steanhouse panel identified the
following nonexclusive factors as relevant in determining whether a sentence was proportionate:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expression of remorse, and the defendant’s
       potential for rehabilitation. [People v Steanhouse, 313 Mich App 1, 46; 880
       NW2d 297 (2015) (citations omitted), aff’d in part, rev’d in part, 500 Mich 453
       (2017).]

        Defendant argues that the trial court’s sentence was disproportionate because it failed to
give any justification for its upward departure from the sentencing guidelines. However, the trial
court did in fact give its justification for its upward departure, reasoning as follows:

              And I do agree . . . in passing sentence here that this case does beg for a
       departure from the guidelines. What happened at the time of the event, certainly
       had to put a fair amount of distress with [defendant], but it’s what happened
       afterward and that’s why the charges are what they are. Obstruction of justice,
       and more importantly, lying to a police officer during a crime investigation.

                . . . [T]here was ample opportunity to take steps to right a significant
       wrong that you were obviously aware of, Mr. Brunke. Right from the time that
       you jumped in the car you could have gone in a different direction. There was no
       gun at your head, you were in a car alone and could have certainly taken a
       different direction and gotten as far away from that particular crime scene as
       possible. And there was other ample opportunity for you to do the right thing.
       And you didn’t. And there was, as this [c]ourt stated, no gun to your head at that
       time. Mr. Cordell may still have been available but you had means and are
       intelligent enough to know that you could have done differently. And you didn’t.
       And that is why this [c]ourt is going to depart from the guidelines because the


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       [c]ourt is satisfied that there is reason, given all the circumstances under these
       particular facts to depart and the [c]ourt will do so.

Further, considering the seriousness of the circumstances underlying defendant’s crimes, the trial
court’s upward departure from defendant’s sentencing guidelines was reasonable and
proportionate. As the trial court noted, defendant had multiple opportunities to “do the right
thing” and contact the police, but failed to do so. Instead, he elected to protect murderers and
cover up the triple homicide by assisting with the transport of the victims’ bodies to a remote
location to destroy evidence and transport the offenders back to their home. Subsequently, he
fled the state, changed his tires to further protect himself, and lied to police about what he knew
after he was discovered. Thus, because the trial court stated a proper justification for its
departure sentence, and because the guidelines did not fully account for defendant’s assistance in
the cover up of the triple homicide, the trial court’s upward departure from the sentencing
guidelines was reasonable and proportionate to defendant’s offenses. Therefore, the departure
was reasonable, and despite the error in scoring OV 9, remand is unnecessary.

                     C. RESTITUTION FOR UNCHARGED CONDUCT

        Defendant also argues that the trial court abused its discretion when it ordered defendant
to pay $2,001 in restitution for the victims’ burned car because the restitution was based on
uncharged conduct. We agree. We generally review a trial court’s order of restitution for an
abuse of discretion, and its factual findings for clear error. People v Gubachy, 272 Mich App
706, 708; 728 NW2d 891 (2006). However, “[t]he proper application of MCL 780.766(2) and
other statutes authorizing the assessment of restitution at sentencing is a matter of statutory
interpretation, which [this Court] review[s] de novo.” People v McKinley, 496 Mich 410, 414–
415, 852 NW2d 770 (2014).

       MCL 780.766(2) states as follows:

       Except as provided in subsection (8), when sentencing a defendant convicted of a
       crime, the court shall order, in addition to or in lieu of any other penalty
       authorized by law or in addition to any other penalty required by law, that the
       defendant make full restitution to any victim of the defendant’s course of conduct
       that gives rise to the conviction or to the victim’s estate. For an offense that is
       resolved by assignment of the defendant to youthful trainee status, by a delayed
       sentence or deferred judgment of guilt, or in another way that is not an acquittal or
       unconditional dismissal, the court shall order the restitution required under this
       section. [Emphasis added.]

In McKinley, the Court held that the language of MCL 780.766(2) prohibits imposing restitution
for a defendant’s “uncharged conduct,” which the Court defined as “criminal conduct that the
defendant allegedly engaged in that was not relied on as a basis for any criminal charge and
therefore was not proved beyond a reasonable doubt to a trier of fact.” McKinley, 496 Mich at
413 n 1. In making this determination, the Court in McKinley reasoned as follows:

       . . . [W]hile conduct for which a defendant is criminally charged and convicted is
       necessarily part of the “course of conduct that gives rise to the conviction,” the

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       opposite is also true; conduct for which a defendant is not criminally charged and
       convicted is necessarily not part of a course of conduct that gives rise to the
       conviction. [McKinley, 496 Mich at 420 (emphasis in original) (internal citation
       omitted).]

        Here, defendant’s obstruction of justice charge was based solely on “leaving the State of
Michigan and attempting to dispose of . . . tires that were on his vehicle.” Defendant admitted to
this conduct during his plea. While defendant may have obstructed justice in other ways, MCL
780.766(2) limits restitution to “defendant’s course of conduct that gives rise to the conviction.”
Therefore, the imposed restitution was for uncharged conduct and is prohibited. McKinley, 496
Mich at 413.

         We affirm defendant’s convictions and sentences, but vacate the trial court’s order
imposing $2,001.00 in restitution. We remand for the trial court to enter an order imposing $0 in
restitution against defendant. We do not retain jurisdiction.



                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Kelly
                                                            /s/ Thomas C. Cameron




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