CHARGE AND SENTENCE PLEA BARGAINING

The Law Governing Charge and Sentence Plea Bargaining

§8.2   MCR 6.301 et seq. sets forth the procedure for pleas in circuit court and is more specific and comprehensive than MCR 6.610(F), which governs pleas in district court.

In what is often referred to as charge bargaining, a prosecutor has complete discretion in deciding what, if any, plea to offer the defendant to reduce or dismiss charges. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 215 NW2d 145 (1974). A judge cannot accept a plea to an offense other than the one charged by the prosecutor. MCR 6.301(D). In other words, with very few exceptions, a judge cannot refuse to accept a plea based on a charge bargain. A judge may set a plea cutoff date for the acceptance of a plea, People v Grove, 455 Mich 439, 566 NW2d 547 (1997), superceded on other grounds as stated in People v Franklin, 491 Mich 916, 813 NW2d 285 (2012), or may refuse to accept a plea if the defendant does not supply an adequate factual basis. MCL 768.35; MCR 6.302(D).. 

The consent of the court is required for pleas of nolo contendere, guilty but mentally ill, not guilty by reason of insanity, and conditional pleas. MCR 6.301(B), (C).

You should also consider the possibility of release-dismissal agreements, in which a criminal defendant relinquishes the right to file a civil action in exchange for the dismissal of criminal charges. These types of agreements have been upheld provided that (1) the agreement was voluntary, (2) there was no evidence of prosecutorial misconduct, and (3) enforcement of the agreement would not affect the relevant public interests. Newton v Rumery, 480 US 386 (1987); see also People v Smith, 502 Mich 624, 918 NW2d 718 (2018); Stamps v City of Taylor, 218 Mich App 626, 554 NW2d 603 (1996).

Sentence bargaining may or may not include the prosecution but always involves the judge, because the ultimate authority to determine and impose sentence rests solely with the court. The three types of sentence bargaining are sentence agreements, sentence recommendations, and “preliminary evaluations of sentence length”—commonly referred to as Cobbs evaluations (under People v Cobbs, 443 Mich 276, 505 NW2d 208 (1993)).

Sentence agreements (e.g., counseling; work release; the Holmes Youthful Trainee Act (HYTA)) arise from a bargain between the prosecution and defense for a sentence with particular terms and conditions or a cap on the length of incarceration. Sentence agreements are discussed in this section below. They are authorized by People v Killebrew, 416 Mich 189, 330 NW2d 834 (1982). A judge has the discretion to refuse to take a plea based on a sentence agreement or can accept the plea conditionally and determine at sentencing if the judge believes the sentence agreement will result in an appropriate sentence. MCR 6.302(C)(3). The sentence bargain is contractual in nature, and both parties have a right to have the plea set aside if the court determines to impose a sentence outside the parameters of the agreement. MCR 6.310(B)(2)(a). Although the rule speaks only to the defendant’s right to withdraw their plea, courts have recognized the prosecution’s right to have the plea set aside if a judge decides to impose a lesser sentence than what was in the original plea agreement. See People v Siebert, 450 Mich 500, 537 NW2d 891 (1995).

In some jurisdictions, the prosecution policy is to only enter into sentence recommendations rather than sentence agreements. However, sentence recommendations are also authorized by Killebrew and arise from an agreement between the prosecution and defense that the prosecution will recommend that the sentence not exceed a certain length or range (for example, not to exceed the sentence guidelines) or limit the type of incarceration (county jail versus prison). As with sentence agreements, a judge has the discretion to refuse to accept the plea or to accept the plea conditionally and determine at sentencing if the judge believes the recommendation will result in an appropriate sentence. MCR 6.302(C)(3). Bargained-for sentence recommendations by the prosecution act as a “cap” on the maximum possible sentence, and the defense is free to argue at sentencing for a punishment less than that recommended by the probation department.

Note, however, that a defendant’s ability to withdraw a plea is limited in the case of bargained-for sentence recommendations by the prosecutor. Under MCR 6.302(C)(3) and .310(B)(2)(a), a defendant cannot withdraw a plea before sentencing if the defendant and prosecutor agree that the prosecutor will recommend a particular sentence even if the court chooses to impose a sentence greater than that recommended by the prosecutor.

A defendant may withdraw a plea if the court chooses not to follow an agreement between the defendant and the prosecutor for a sentence of a specified term or within a specified range. MCR 6.302(C) and .310(B) decreases the value of a prosecutorial sentence recommendation. These aspects of the rules are controversial since the practical result of Cobbs and Killebrew pleas is to reduce the trial dockets and congestion that results from the defendant’s uncertainty as to their fate.

A Cobbs plea is a form of sentence bargaining in which a judge can, at the request of a party, but not on its own initiative, place on the record a “preliminary evaluation” of what sentence would be appropriate if the defendant pleads guilty. A judge is not required to engage in this practice. If a judge does give a Cobbs evaluation, and the defendant pleads in reliance on the judge’s statement as to sentencing, the defendant is entitled to an opportunity to withdraw their plea if the judge determines at sentencing that a more severe sentence is appropriate. MCR 6.310(B)(2)(b). You must be sure to state the terms of a Cobbs plea very clearly, as the judge is only bound by the terms stated on the record or those terms made part of any plea form used by the court.

A plea agreement, which may include an agreement for a sentence of a specific term or within a specific range, must be stated on the record or reduced to writing and signed by the parties. This agreement must be made part of the case file. MCR 6.302(C)(1). In considering and negotiating a sentence bargain, the duration of incarceration is not the only consideration. In many cases, incarceration is not a factor, even in a felony case. Rather, it is the disposition of the case that is the defendant’s concern and thus the focus of the bargain. For example, the court’s commitment to assign the defendant to section 7411 (MCL 333.7411) status in a drug case deals with “disposition.” Defense counsel always should state the Cobbs arrangement very clearly and should ask the court whether it considers a dispositional agreement to be soundly included in the bargain.

Finally, the 2014 amendments also clarify that a defendant’s misconduct that occurs between the time the plea is accepted and the defendant’s sentencing may result in a forfeiture of the defendant’s right to withdraw a plea in either a Cobbs or Killebrew case. MCR 6.310(B)(3). Misconduct in this context is defined to include but is not limited to absconding or failing to appear for sentencing, violating the terms of bond conditions or the terms of any sentencing or plea agreement, or otherwise failing to comply with a court order pending sentencing. Id. You should ask the court at the time of a plea if the court has anything else it usually includes in the definition of misconduct.

Note that a plea agreement, regardless of the number of counts or charges against the defendant, is indivisible. Thus, a defect or vacation in one count of the plea is a defect in all. People v Blanton, 317 Mich App 107, 894 NW2d 613 (2016) (defendant could withdraw his plea in its entirety because of defect in plea-taking process regarding one of the charges).

If you have been convicted of a criminal charge in the State of Michigan, call today for a free consultation with one of our expert criminal appeal attorneys.