Criminal Law Articles Plea Agreements 101
Plea Agreements 101

In a recent Michigan criminal case the court stated that, "A defendant does not have a right to engage in plea negotiations with the prosecution. People v Payne, 285 Mich App 181, 191 (2009). Neither the United States Supreme Court nor the Michigan Supreme Court has recognized that the parties have a right to present a plea. A prosecutor and a defendant may reach a sentence agreement whereby the defendant agrees to plead guilty in exchange for a sentence to a specified term or within a specified range, or for a nonbinding prosecutorial sentence recommendation.

The extent to which a trial court may involve itself in sentence negotiations has been set out by the Michigan Supreme Court in People v Killebrew, 416 Mich 189 (1982), which held that a trial court may not initiate or participate in discussions regarding a plea agreement. In Cobbs, 443 Mich at 283, the Supreme Court modified Killebrew to allow the trial court, at the request of a party, to state on the record the length of the sentence that appeared to be appropriate, based on the information available to the trial court at the time. The Cobbs Court made clear that the trial court’s preliminary evaluation did not bind the court’s ultimate sentencing discretion, because additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources.

Killebrew limits a trial court’s involvement to the approval or disapproval of a nonbinding prosecutorial sentence recommendation linked to a defendant’s guilty plea. A trial court may accept a defendant’s guilty plea without being bound by any agreement between the defendant and the prosecution. Where a trial court has decided not to adhere to the sentence recommendation accompanying the defendant’s plea agreement, the court must explain to the defendant that the recommendation was not accepted and state the sentence that the court finds is the appropriate disposition. However, a judge’s decision not to follow the sentence recommendation does not entitle the defendant to withdraw the defendant’s plea.

Cobbs authorizes the trial court, at the request of a party, to state on the record the sentence that appears appropriate for the charged offense, on the basis of information available to the court at the time. Even when a defendant pleads guilty or nolo contendere to the charged offense in reliance on the court’s preliminary determination regarding the defendant’s likely sentence, the court retains discretion over the actual sentence imposed should additional information dictate the imposition of a longer sentence. If the court determines it will exceed its previously stated sentence, the defendant has an absolute right to withdraw the plea

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.

On the prosecutor’s motion, the court may vacate a plea if the defendant has failed to comply with the terms of a plea agreement. MCR 6.310(E). A defendant’s breach of a plea agreement constitutes grounds for setting aside the agreement. In People v Abrams, 204 Mich App 667, 672673 (1994) where the defendant breached his plea agreement by engaging in criminal activity, the prosecution was allowed to pursue its case against the defendant.

An evidentiary hearing is required for the court to determine if a substantial breach of a plea agreement has occurred. The burden is on the prosecution to show by a preponderance of the evidence that a defendant breached the plea agreement. A defendant who breaches a plea agreement forfeits any right to its enforcement. It is appropriate to grant a prosecutor’s motion to void a plea bargain where the defendant has not lived up to his or her part of the bargain. It is appropriate to grant a prosecutor’s motion to set aside a guilty plea made pursuant to a plea bargain where defense counsel concealed material information during the bargaining process.

A guilty plea cannot be “understandingly” made unless the defendant has knowledge of the consequences of his or plea. Automatic reversal is mandated where the record does not affirmatively show that before pleading guilty, a defendant was advised that his or her guilty plea waived a trio of constitutional rights known as the BoykinJaworski rights. Boykin v Alabama, 395 US 238, 279280 (1969)

The three constitutional rights waived by a defendant’s guilty plea are:

 

  • the right to a trial by jury,
  • the right to confront one’s accusers, and
  • the privilege against selfincrimination.

 

MCR 6.610(E)(3)(b) requires a court to advise a defendant of the trial rights that are waived by a guilty or no contest plea. MCR 6.610(E)(3) states: The court shall advise the defendant of the following:

that if the plea is accepted the defendant will not have a trial of any kind and that the defendant gives up the following rights that the defendant would have at trial:

 

  • the right to have witnesses called for the defendant’s defense at trial,
  • the right to crossexamine all witnesses called against the defendant,
  • the right to testify or to remain silent without an inference being drawn from said silence,
  • the presumption of innocence and the requirement that the defendant’s guilt be proven beyond a reasonable doubt.

 

The Michigan Supreme Court specifically approved of a trial court’s “grouping” of a defendant’s rights in the court’s recital of rights to a defendant. Provided that the record at a plea proceeding reflects that none of the three BoykinJaworski rights was omitted, reversal is not necessarily required where each right is not explained separately or is imprecisely recited.

There exists no absolute right to withdraw a guilty plea after it has been accepted by the court. A defendant wishing to withdraw a plea before being sentenced must establish a fair and just reason for withdrawal of the plea. But where a defendant pleads guilty based on the court’s preliminary evaluation of an appropriate sentence, the defendant does have an absolute right to withdraw his or her plea if the court imposes a sentence greater than the one on which the defendant relied. People v Cobbs, 443 Mich 276, 283 (1993).

MCR 6.310(B)(2), a rule not expressly applicable to procedure in cases over which the district court has trial jurisdiction, governs plea withdrawals in circuit court when a sentence agreement is involved. The defendant is entitled to withdraw the plea if:

 

  • the plea involves an agreement for a sentence for a specified term or within a specified range, and
  • the court states that it is unable to follow the agreement.

 

The trial court shall then state the sentence it intends to impose, and provide the defendant the opportunity to affirm or withdraw the plea; or the plea involves a statement by the court that it will sentence to a specified term or within a specified range, and the court states that it is unable to sentence as stated; the trial court shall provide the defendant the opportunity to affirm or withdraw the plea, but shall not state the sentence it intends to impose.

MCR 6.310(B)(3) provides: Except as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b) if the defendant commits misconduct after the plea is accepted but before sentencing. For purposes of this rule, misconduct is defined to include, but is not limited to: absconding or failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or plea agreement, or otherwise failing to comply with an order of the court pending sentencing.