Sentencing; An intermediate sanction; MCL 769.34(4)(a); Imposition of any sentence other than an intermediate sanction as a departure sentence; People v. Muttscheler; People v. Lockridge; People v. Schrauben; Punishing a person for exercising a constitutional or statutory right as a due process violation; People v. Ryan; Absolute right to maintain innocence; People v. Pennington; Whether a departure sentence based on a formal or informal local sentencing policy is individualized; People v. Whalen; Consideration of uncharged conduct as opposed to acquitted conduct; People v. Beck; Release on bond; Administrative Order 2020-1; People v. Chandler; People v. Barber; Executive Order 2020-146; MCR 7.216(A)(7)

After remand for resentencing, the court affirmed defendant’s sentences but directed that his bond be temporarily continued, and remanded to the trial court for consideration of whether he should be returned to incarceration in light of COVID-19 and his possible asthma condition. He was convicted under a plea agreement of delivery of less than 50 grams of heroin arising from controlled buys. The drugs were found to contain fentanyl. Charges of delivering less than 50 grams of heroin and/or fentanyl and a habitual offender enhancement were dropped as part of the plea deal. The court previously vacated his sentences due to OV scoring errors and the imposition of “departure sentences on the basis of improper considerations.” On remand his guidelines range was recalculated to 0 to 11 months, but the trial court imposed a departure sentence of 3 to 20 years with credit for time served. The court later granted his motion for an appellate bond and ordered his release based on the COVID-19 health emergency. He argued that “the trial court again relied on impermissible considerations and imposed a disproportionate sentence.” The court disagreed, concluding that “the trial court may consider the presence of fentanyl and base its sentence in part on its conclusion that the drugs were therefore more dangerous than ordinary heroin.” It could also determine that the evidence did not support his contention that he “was unaware of the fentanyl.” While the court was concerned with the alleged “admit all for sentencing” county policy, it found that any reliance on such a policy here was harmless. There was no serious dispute that “defendant did in fact make seven deliveries of heroin, and the trial court clearly, and properly, drew its own independent conclusion that [he] had some awareness that the heroin contained fentanyl.” The court exercised its discretion under MCR 7.216(A)(7) to order that he temporarily remain released on bond, and remanded for the limited purpose of determining whether he “should remain not incarcerated, whether on bond or pursuant to any other legal mechanism” the trial court deems appropriate.