                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 7, 2017
              Plaintiff-Appellee,

v                                                                  No. 334346
                                                                   Barry Circuit Court
BRADLEY DEAN MCKELVEY,                                             LC No. 15-000315-FH

              Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and GADOLA, JJ.

PER CURIAM.

        Defendant pleaded guilty to possession of methamphetamine, MCL 333.7403(2)(b)(i).
The trial court sentenced defendant to 54 to 120 months’ imprisonment with credit for 214 days
served, ordered defendant to pay $18,889.03 in restitution, and refused to omit the victim impact
statement from defendant’s presentence investigation report (PSIR). Defendant now appeals by
leave granted,1 challenging not his conviction but his sentence. We vacate in part, and remand
this case for further proceedings.

       This case primarily involves a challenge to the amount of restitution that the trial court
ordered defendant to pay jointly and severally with his codefendant, Kendall Leonard, after
defendant pleaded guilty to possession of methamphetamine. In early 2014, Leonard rented a
house from Harold and Connie Miller. Defendant moved into the house with Leonard in
November 2014. Defendant was not on the lease and did not pay rent.

         In December 2014, Detective Sergeant Eric Ingram of the Hastings Police Department
received an anonymous tip regarding possible drug activity at Leonard’s house. As a result of
the tip, Detective Ingram did a “trash pull” from Leonard’s house, during which he found illegal
drug paraphernalia and items used to make methamphetamine. Leonard was on probation, and
his conditions allowed law enforcement officers to search his residence at any time. A few days
later, Detective Sergeant Ingram and probation agents searched Leonard’s house. The search
resulted in the finding of various methamphetamine-related paraphernalia throughout the house,


1
  People v McKelvey, unpublished order of the Court of Appeals, entered October 4, 2016
(Docket No. 334346).


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including items and ingredients used to make methamphetamine. Defendant was not at
Leonard’s house when it was searched because he was incarcerated three or four days earlier on
unrelated charges.

       Leonard pleaded guilty to operating a laboratory involving methamphetamine, possession
of methamphetamine, and maintaining a drug house. Defendant pleaded guilty to possession of
methamphetamine in exchange for the dropping of various other charges.

         At sentencing, defendant requested that the trial court remove the victim impact
statement from the PSIR. The trial court responded, stating, “No. Thank you, though.” The
prosecution requested restitution in the amount of $18,889.03, which represented the amount the
Millers had to spend to test the house for the presence of chemicals, lost income from the rental
until it was habitable, the cost to purchase cleaning supplies, and reimbursement for their gas
mileage for purchasing cleaning supplies. The Millers also had to replace the furnishings of the
house, such as the couch.

       The trial court held a restitution hearing, during which it opined:

              Furthermore, the second to last paragraph [of the PSIR] says ‘The
       codefendant’s phone was searched and there were several communications on the
       telephone regarding the use, production and distribution of controlled substances.’

               This Court finds by a preponderance of the evidence that the two were
       roommates and that it would be—the defendant obviously pled [sic] guilty to
       possession of methamphetamine, was living there, and it would be unreasonable
       to assume that he was not involved in that production or at least aware of it,
       reasonably should have known that this was going on and that he actually
       participated in that.

              The Court of Appeals may differ with me, but that is this Court’s
       determination.

                                             * * *

             So therefore at this point the order entered on December 3rd, 2015, in the
       amount of $18,889.03 will remain.


         Defendant argues that the trial court erred in ordering him to pay $18,889.03 in
restitution.

        “The proper application of MCL 780.766(2) and other statutes authorizing the assessment
of restitution at sentencing is a matter of statutory interpretation, which we review de novo.”
People v McKinley, 496 Mich 410, 414-415; 852 NW2d 770 (2014).




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       MCL 780.766(2) states, in relevant part:

       [W]hen 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 . . . .


        The Michigan Supreme Court in McKinley analyzed the issue that defendant now raises.
The McKinley Court began its analysis by stating, “The statute does not define ‘gives rise to,’ but
a lay dictionary defines the term as ‘to produce or cause.’ ” McKinley, 496 Mich at 419 (citation
omitted). The Court continued:

       [T]he statute ties “the defendant’s course of conduct” to the convicted offenses
       and requires a causal link between them. It follows directly from this premise that
       any course of conduct that does not give rise to a conviction may not be relied on
       as a basis for assessing restitution against a defendant. Stated differently, while
       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 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. [Id.
       at 419-420.]


“[T]he McKinley Court determined that a trial court could not award restitution for uncharged
conduct . . . .” People v Foster, 319 Mich App 365, 380; ___ NW2d ___ (2017).

         Defendant was convicted only of possession of methamphetamine. He was not convicted
of operating a methamphetamine laboratory, nor was he convicted of any crimes involving the
manufacture or distribution of methamphetamine. Only defendant’s codefendant, Leonard, was
convicted of those crimes. The testimony and evidence in this case demonstrated that the
restitution amounts reflected the damages to the Millers for what they spent to test, clean, and
repair the home, as well as lost rental income, that were caused largely by the manufacture of
methamphetamine inside of the home. Because defendant was not convicted of operating a
methamphetamine        laboratory,   manufacturing      methamphetamine,      or     distributing
methamphetamine, such conduct was necessarily not part of a course of conduct that gave rise to
his conviction for possession of methamphetamine. McKinley, 469 Mich at 419-420.

         This case is not distinguishable from McKinley, wherein the Supreme Court ruled that the
trial court erred by ordering the defendant to pay restitution not only to the victims of the
offenses of which he was convicted but also to “victims of uncharged thefts attributed to the
defendant by his accomplice.” Id. at 414. Both McKinley and the present case involved
evidence of additional crimes (other than the “conviction” offense) committed by the defendant,
but the Supreme Court plainly held that only the “conviction” offense could be used to assess
restitution. Id. at 419-420. One could potentially argue that the maintenance of a drug house
was part of the “course of conduct” giving rise to defendant’s conviction, but one could also
argue that in McKinley, the additional thefts were part of the “course of conduct” giving rise to
the McKinley defendant’s conviction. Quite simply, the Supreme Court has rejected this type of
                                                -3-
argument. We are bound to follow McKinley. People v Beasley, 239 Mich App 548, 556; 609
NW2d 581 (2000). Accordingly, we hold that the trial court erred in ordering defendant to pay
$18,889.03 in restitution when this order was explicitly based, in part, on his knowledge of,
imputed knowledge of, or participation in the production of methamphetamine in the home. We
remand this case to the trial court for a determination of how much in restitution can be
attributable to defendant’s “conviction” offense.2

       Defendant next argues that the trial court abused its discretion by not adequately
addressing his challenge to the inclusion of the victim impact statement in the PSIR.

        We review a trial court’s response to a defendant’s challenge to the accuracy or relevancy
of information in a PSIR for an abuse of discretion. People v Maben, 313 Mich App 545, 552;
884 NW2d 314 (2015). “A trial court abuses its discretion when it selects an outcome outside
the range of reasonable and principled outcomes.” Id. (quotation marks and citation omitted).

        A victim impact statement is included in a PSIR as a matter of statutory right of the
victim. MCL 780.764. “[H]owever, the right is not limited exclusively to the defendant’s direct
victims. Instead, a sentencing court is afforded broad discretion in the sources and types of
information to be considered when imposing a sentence . . . .” People v Waclawski, 286 Mich
App 634, 691; 780 NW2d 321 (2009) (quotation marks and citation omitted). Upon assertion of
a challenge to the factual accuracy or relevancy of information in a PSIR, a trial court has a duty
to resolve the challenge. People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009).
When the accuracy or relevancy of information in a PSIR is challenged, the trial court must
allow the parties to be heard and must make a finding regarding the challenge or determine that
the finding is unnecessary because the court will not consider the information during sentencing.
MCR 6.425(E)(2); Waclawski, 286 Mich App at 689-690.

       In this case, defendant did not challenge the accuracy of any information contained in the
PSIR. Specifically, he did not challenge the accuracy of any information contained in the victim
impact statement that was contained within the PSIR. Rather, defendant challenged the
relevance of the victim impact statement (and therefore its very inclusion in the PSIR), given that
he (as opposed to Leonard) pleaded guilty and thus was convicted only of the offense of
possession of methamphetamine, which defendant contends does not typically have a victim.

       We are not convinced on the record before us that possession of methamphetamine is
necessarily a victimless crime, and defendant offers no authority in support of his position. Our
review of the victim impact statement in this case reveals that the Millers certainly considered
themselves to be victims of the conduct of both Leonard and defendant. The trial court gave
defendant the opportunity to be heard regarding his challenge and subsequently rejected the


2
   At one point during the restitution hearing, the trial court seemed to indicate that mere
possession might have had an effect on the home in the present case, but, as noted above, the
trial court also explicitly based its ruling on a finding that “it would be unreasonable to assume
that [defendant] was not involved in that production or at least aware of it . . . .” We remand this
case so that the trial court can follow the law as set forth in McKinley.


                                                -4-
challenge, albeit with a simple “No. Thank you, though.” Defendant cites no authority that the
rejection had to be worded in a particular manner, and we note that the trial court had broad
discretion with regard to the inclusion of victim impact statements. See, generally, id. at 691-
692.

         Nonetheless, we are constrained to note that the trial court, in rejecting defendant’s
challenge to the inclusion of the victim impact statement in the PSIR, not only did so with little
explication, but did so in the context of having determined that defendant and Leonard were
jointly responsible for paying restitution to the Millers. As noted, we are vacating the latter
determination and remanding for a determination of how much in restitution can be attributable
to defendant’s “conviction” offense. Under these circumstances, we believe it most prudent to
similarly remand for further consideration by the trial court (albeit without our having made any
finding of error) the issue of the relevance of the victim impact statement for inclusion in the
PSIR. Doing so will allow the trial court to consider the issue anew in the context of its new
restitution findings, to assess the existence or absence of any potential inconsistencies between
its findings with respect to the two issues, and to enhance its rationale in that regard so as to
facilitate meaningful, potential future appellate review.

        Vacated in part, and remanded for further proceedings consistent with this opinion. We
do not retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Michael F. Gadola




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