Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  May 8, 2020                                                                       Bridget M. McCormack,
                                                                                                  Chief Justice

  161265 & (11)                                                                          David F. Viviano,
                                                                                         Chief Justice Pro Tem

                                                                                       Stephen J. Markman
                                                                                            Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                    Richard H. Bernstein
            Plaintiff-Appellee,                                                       Elizabeth T. Clement
                                                                                      Megan K. Cavanagh,
                                                                                                       Justices
  v                                                        SC: 161265
                                                           COA: 353445
                                                           Oakland CC: 2020-273750-FH
  DONALD WALLACE CHANDLER,
          Defendant-Appellant.

  _________________________________________/

          On order of the Court, the motion for immediate consideration is GRANTED.
  The application for leave to appeal the April 21, 2020 order of the Court of Appeals is
  considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
  VACATE the April 14, 2020 order of the Oakland Circuit Court that denied the
  defendant’s emergency motion to modify bail. The trial court abused its discretion by
  failing to give adequate consideration to Administrative Order No. 2020-1 (issued March
  15, 2020), which directs courts to consider the public health factors arising out of the
  present public health emergency to mitigate the spread of COVID-19. The record does
  not support the trial court’s conclusory determination that the defendant is likely to fail to
  appear for future proceedings; nor does it establish that he poses a danger to the public if
  granted pretrial release. We REMAND this case to the Oakland Circuit Court for further
  proceedings not inconsistent with this order.

         We do not retain jurisdiction.

         CAVANAGH, J. (concurring).

         I concur in the Court’s order vacating the trial court’s order and reversing the
  Court of Appeals’ judgment. I agree with Justice MARKMAN that under Administrative
  Order 2020-1, a trial court should balance existing legal factors with public-health factors
  arising out of the present state of emergency in making pretrial detention decisions.
  Here, the trial court abused its discretion in balancing those factors. Defendant filed
  emergency motions to reduce his bail, citing reports that numerous inmates and
  corrections officers at the Oakland County Jail had tested positive for COVID-19 and
  emphasizing his particular susceptibility to COVID-19 due to his age and a seizure
  disorder (noting that he had suffered a seizure in the jail in February of 2020). Counsel
  for defendant informed the trial court that he could not obtain medical documentation of
  defendant’s condition because he could not visit defendant in jail to obtain the necessary
  releases, and he suggested that the trial court question defendant directly about his
  condition. The trial court denied the motion without examining defendant. The trial
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court concluded that defendant was a flight risk, despite the fact that defendant had no
history of absconding on bond or failing to appear for court, and based only on
defendant’s presumed incentive to avoid punishment—an incentive present in virtually
every case. When these considerations are balanced with defendant’s willingness and
ability to post a reasonable personal-recognizance bond and his agreement to wear a GPS
tether, I believe the trial court abused its discretion in light of Administrative Order
2020-1.

       MARKMAN, J. (dissenting).

       I respectfully dissent from the present order vacating the trial court’s order and
reversing the Court of Appeals’ judgment. Because I do not believe the trial court here
abused its discretion, or that the Court of Appeals erred in affirming the trial court, I
would deny leave to appeal.

       Defendant has been charged as a fourth-offense habitual offender with being a
felon in possession of a firearm, possessing a firearm during the commission of a felony,
possessing a loaded firearm in a motor vehicle, and second-offense driving while his
license was suspended. Defendant has been in the Oakland County Jail since January 3,
2020, unable to post the $25,000 cash or surety bond set by the trial court. The trial court
has since denied defendant’s emergency motion to reduce bail, finding “the issue of his
potential flight [to be] significant” because “he knows that he is facing a mandatory two
years if he’s convicted.” The court further determined that, given his prior convictions,
defendant failed to persuade the court that he would not pose a threat to public safety if
released. In a split decision, the Court of Appeals denied defendant’s emergency motion
to review bail.

       The majority concludes that the “trial court abused its discretion by failing to give
adequate consideration to Administrative Order No. 2020-1 (issued March 15, 2020),”
which directs courts to “take into careful consideration public health factors arising out of
the present state of emergency . . . in making pretrial release decisions[.]” I disagree.
The trial court here did specifically consider such factors and correctly observed that
defendant did not present any evidence that he is particularly vulnerable to COVID-19.
Rather, defendant summarily asserts that he suffers from seizures, but he has presented
neither evidence in support of this assertion nor evidence explaining why any such
seizures would render him more vulnerable to COVID-19.

       The majority also concludes that the “record does not support the trial court’s
conclusory determination that the defendant is likely to fail to appear for future
proceedings; nor does it establish that he poses a danger to the public if granted pretrial
release.” Again, I disagree. Defendant’s prior criminal history consists of stalking,
fleeing and eluding, driving while under the influence of alcohol, and three counts of
larceny in a building. His current charges involve him, while on probation, being in the
possession of a loaded semi-automatic rifle while driving with a suspended license.
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Given both this habitual criminal history and the gravity of the present charges, I cannot
agree that the trial court abused its discretion in finding either that defendant poses a
danger to the community or that he poses a flight risk. It is not the purpose of
Administrative Order No. 2020-1 to preclude the consideration of factors already long
extant in our law to maintain public safety, but to require that consideration also be given
to factors that are relevant to the present public health emergency. Such an assessment
has been undertaken by the trial court and, in my judgment, it has not abused its
discretion in so doing.

        Where Administrative Order 2020-1 specifies that, “[d]uring the state of
emergency, trial courts should be mindful that taking reasonable steps to protect the
public is more important than strict adherence to normal operating procedures or time
guidelines standards,” I do not understand the order to mean: (a) that trial courts are
precluded in their pretrial release decisions from taking into account existing legal factors
(e.g., risk to public safety and risk of flight) that are designed to “protect the public”;
(b) that it constitutes an “abuse of discretion” by the trial court to balance existing factors,
required to be considered under law, with newly added factors, “urged” to be considered
under an administrative order; or (c) that “protection of the public” does not reasonably
encompass the safeguarding of persons, not only who are incarcerated, but also persons
who are not incarcerated (i.e., witnesses and members of the public) from the criminal
conduct of persons being considered for pretrial release.

       For these reasons, I would deny leave to appeal.

       ZAHRA, J., joins the statement of MARKMAN, J.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          May 8, 2020
        t0505
                                                                              Clerk
