Criminal Law Blog
Sturgis - Criminal Defense Law Blog

Prosecutor Misconduct during Plea Negotiations:

Posted December 1, 2018

As a general rule, fundamental fairness requires that promises made during plea bargaining be respected, where:

  • the government agent was authorized to enter into the agreement; and
  • the defendant relied on the promise to his or her detriment.

Where a defendant is aggrieved by the breach of an unauthorized nonplea agreement with the police (that the defendant not be prosecuted) he or she is not entitled to specific performance of that agreement. Instead, suppression or exclusion of the written agreement is an appropriate remedy. Where a sentencing agreement negotiated between the defendant and the prosecution is subsequently breached by the prosecution, a reviewing court has discretion to choose between vacating the plea or ordering specific performance, with considerable weight given to the defendant’s choice of remedy. In People v Nixten, 183 Mich App 95, 97, 99 (1990) where the defendant did not assert his innocence and only complained that the prosecution did not fulfill its part of the bargain, the Court of Appeals found that specific performance was the appropriate remedy and remanded for resentencing before a different judge.

People v Ryan (Thomas), 451 Mich 30, 41 (1996).

Can I Withdraw my Plea?

Posted November 20, 2018

A defendant wishing to withdraw a plea after it has been accepted has the initial burden of providing reasons sufficient to establish that withdrawing the plea would be “in the interest of justice.” If the defendant satisfies this element, the burden shifts to the prosecution to show that “substantial prejudice” would result if the court permitted the defendant to withdraw his or her plea. In a recent criminal case, a Michigan court held that, “Substantial prejudice” requires the prosecution to show that its ability to prosecute the defendant was hampered, not merely inconvenienced, by the delay resulting from its reliance on the defendant’s plea."

Doubt about the genuineness of a defendant’s nolo contendere plea, by itself, is not an appropriate reason to permit the defendant to withdraw an accepted plea before sentencing. People v Patmore, 264 Mich App 139, 150 (2004). In Patmore, the defendant moved to withdraw his no contest plea on the basis that the complainant had recanted her preliminary examination testimony on which the defendant’s plea was based. When no sentence agreement is involved, a defendant who wishes to withdraw his no contest plea before sentencing must comply with the requirements of MCR 6.310(B)(1). Unless claiming an error in the plea proceeding itself, the defendant has the burden of showing that withdrawal of the plea is in the interest of justice; that is, the defendant must show that there is a fair and just reason for withdrawal. MCR 6.310(B)(1); Patmore, 264 Mich App at 150151. If the defendant satisfies this burden, then the prosecution must establish that substantial prejudice would result if the defendant was permitted to withdraw his plea.

People v Patmore, 264 Mich App 139, 150 (2004)

Doctrine of Forfeiture of Counsel:

Posted October 12, 2018

“While the right to counsel is constitutionally protected, this constitutional right can be relinquished by waiver or forfeiture.” People v Kammeraad, ___ Mich App ___, ___ (2014) (formally “recogniz[ing], Plurality decisions in which no majority of the justices participating agree as to the reasoning are not an authoritative interpretation binding on this Court under the doctrine of stare decisis.” Negri v Slotkin, 397 Mich 105, 109 (1976). adopt[ing], and employ[ing] the principle or doctrine of forfeiture of counsel[]”) (citations omitted).

In Kammeraad, ___ Mich App at ___, the defendant “indisputably and defiantly refused to participate in the trial and other judicial proceedings, indisputably and defiantly refused to accept the services of appointed counsel or to communicate with counsel, regardless of counsel’s identity, indisputably and defiantly refused to engage in selfrepresentation, indisputably and defiantly refused to promise not to be disruptive during trial, and indisputably and defiantly refused to remain in the courtroom for his jury trial.” The trial court “attempted to obtain a formal

waiver of counsel by the defendant, along with the attendant invocation of the right to selfrepresentation, carefully imparting the information encompassed by MCR 6.005(D) and then directly querying the defendant with respect to whether he wished to represent himself; the defendant, however, vigorously voiced a refusal to represent himself,

and he refused to expressly acknowledge, let alone accept, the rightto counsel and waiverrelated information conveyed to him by the court.” Kammeraad, ___ Mich App at ___.

Accordingly, because the trial court was unable to make an express finding that the defendant fully understood, recognized, and agreed to abide by the waiver of counsel procedures, there was no effective waiver of counsel.

The Kammeraad Court held that, despite . . . the ineffective waiver of counsel,” the defendant, “being competent,had forfeited his constitutional rights to counsel, selfrepresentation, and to be present in the courtroom during trial, given the severity of his misconduct and his absolute refusal to participate in any manner in the proceedings, and

there was no constitutional obligation to impose a courtappointed attorney upon the unwilling defendant.” People v

The Court explained: The defendant lost his right to counsel on the basis of his conduct and statements. Honoring a defendant’s wishes within reason with respect to declining counsel is a principle that was accepted in Faretta v

California, 422 US 806, 817 (1975), wherein the Supreme Court acknowledged the ‘nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.

The defendant had the free choice to refuse the services of appointed counsel, but, as opposed to the circumstances in Faretta, he also refused selfrepresentation. Nevertheless, we conclude that the defendant had the free choice to refuse both appointed counsel and selfrepresentation, forfeiting these constitutional rights.

The Court emphasized, however, that “a finding of forfeiture of counsel . . . should only be made in the rarest of circumstances and as necessary to address exceptionally egregious conduct. Additionally noting that the defendant was competent for purposes of finding forfeiture[]” and that Indiana v Edwards, 554 US 164, 177178 (2008), might suggest that if the defendant were not competent because of severe mental illness, forfeiture of the constitutional rights at issue cannot be recognized and imposing or forcing counsel upon the defendant . . . might have been constitutionally permissible or even necessary.