7.11Killebrew and Cobbs Plea Agreements
Generally, a plea agreement is an agreement between the defendant and the prosecutor where the defendant agrees to plead guilty in exchange for a sentence to a specified term or within a specified range (a sentence agreement) or in exchange for the prosecutor’s recommendation for a sentence of a specified term or within a specified range (a sentence recommendation). See People v Killebrew, 416 Mich 189 (1982), effectively superseded in part by ADM File No. 2011-19,1 and People v Cobbs, 443 Mich 276 (1993).
The trial court does not participate in negotiating a Killebrew plea agreement; however, a Cobbs plea agreement may be based in part on the trial court’s statement of what it believes to be an appropriate sentence. Killebrew, 416 Mich at 205; Cobbs, 443 Mich at 283.2
In Killebrew the Court explained the trial court’s involvement in two different types of plea agreements: (1) sentence agreements and (2) sentence recommendations. People v Killebrew, 416 Mich 189, 206-210 (1982).
Sentence agreements. Where “the sentence bargain includes a sentence agreement” that states the defendant will “plead guilty in exchange for a specific sentence disposition, the court must accept or reject the agreement or defer action until the judge has had the opportunity to consider the presentence report.” Killebrew, 416 Mich at 206-207.
The sentencing court’s next actions depend on whether it chooses to accept or reject the plea agreement:
•Accepts sentence agreement. If the court agrees to impose the sentence that the defendant and prosecutor agreed to, it must “inform the defendant, accept the plea, and embody the terms of the plea agreement in the judgment and sentence.” Killebrew, 416 Mich at 207.
•Rejects sentence agreement. If the court “finds that the bargain is not tailored to reflect the particular circumstances of the case or the particular offender,” it must “reject the plea at that time.” Id. If the court rejects the plea it must “on the record, inform the defendant that the court will not accept the plea or be bound by the agreement.” Killebrew, 416 Mich at 207.
The prosecution is entitled to withdraw from the plea agreement if the sentencing court “intends to impose a sentence lower than the agreement calls for.” People v Siebert, 450 Mich 500, 504 (1995) (holding “a court may not accept a plea bargain containing a sentence agreement but impose a lower sentence than that agreed to”).
Sentence recommendations. Where “the plea agreement offered to the court by the prosecutor and defendant includes a non-binding prosecutorial recommendation of a specific sentence,” the court can “accept the guilty plea (after consideration of the presentence report), yet refuse to be bound by the recommended sentence.” Killebrew, 416 Mich at 209. If the court declines to impose the recommended sentence, it must:
•“explain to the defendant that the recommendation was not accepted by the court” and
•“state the sentence that the court finds to be the appropriate disposition.” Killebrew, 416 Mich at 209.
However, “[a] judge’s decision not to follow the sentence recommendation does not entitle the defendant to withdraw the defendant’s plea.” MCR 6.302(C)(3).3
Where the defendant entered into a Killebrew agreement to accept a minimum sentence within the specified range of 250 to 400 months he could not later challenge the sentence on the basis of it being above his advisory sentencing guidelines because by accepting the plea agreement he effectively agreed “to the proportionality and reasonableness of sentences within his sentencing range even if they fell outside of the guidelines calculated at sentencing.” People v Guichelaar, ___ Mich App ___, ___ (2023) (noting that the “sentencing agreement was not contingent on its relationship to the sentencing guidelines,” and no “specific reference to the anticipated guidelines” was made as part of the agreement). Further, the trial court was not required to articulate its basis for the guidelines departure because the agreement was not a Cobbs agreement. Guichelaar, ___ Mich App at ___.
B.Cobbs Plea4
“In addition to the procedures approved in Killebrew,”5 a sentencing court may participate in sentence discussions by stating “on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense.” People v Cobbs, 443 Mich 276, 283 (1993). The sentencing court may not make a statement about the appropriate sentence on its own initiative. Id.
Specifically, the procedure for a Cobbs plea agreement includes:
•A request from the defendant or the prosecution for the sentencing court to state what sentence appears appropriate under the circumstances. Cobbs, 443 Mich at 283.
•The court’s preliminary sentence evaluation is based on the information then available and the court retains discretion over the actual sentence imposed. Cobbs, 443 Mich at 283.
•The preliminary evaluation does not bind the court’s ultimate sentencing discretion “since 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.” Cobbs, 443 Mich at 283.
•If the court decides it cannot impose the preliminary sentence, the defendant must be given an opportunity to withdraw his or her plea. Cobbs, 443 Mich at 283.
•The court cannot indicate the sentence it would impose if the defendant decides to allow the plea to stand. People v Williams, 464 Mich 174, 180 (2001).6 See also MCR 6.310(B)(2)(b).
A sentencing court does not have to participate in a Cobbs procedure; the court may decline to disclose its preliminary assessment of the case. Cobbs, 443 Mich at 286.
1 Effective January 1, 2014. See 495 Mich clxxxvi-clxxxviii (2013).
2 For a detailed discussion on the court’s role in plea negotiation and sentence bargaining, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 6.
3 In Killebrew, the Court held that when the sentencing court does not accept the recommendation it must also “give the defendant the opportunity to affirm or withdraw his guilty plea.” Killebrew, 416 Mich at 209-210. However, ADM File No. 2011-19, effective January 1, 2014, amended MCR 6.302(C) to state that the defendant is not entitled to withdraw the plea under these circumstances, effectively superseding that part of the Killebrew holding. See 495 Mich clxxxvi-clxxxviii (2013). But see People v Foster, 319 Mich App 365, 373 (2017) (holding that where the trial court imposed a $500 fine that was not part of the prosecutorial sentence recommendation contained in the parties’ sentencing agreement and was “not contemplated by the parties in relation to the . . . charge for which it was assessed, . . . the trial court plainly erred by not giving defendant an opportunity to affirm or withdraw his plea after the fine was imposed”).
4 See also the Michigan Judicial Institute’s Cobbs Hearing Memorandum, an optional guide for use during a Cobbs plea.
5 People v Killebrew, 416 Mich 189 (1982).
6 Williams distinguished the procedures under Killebrew and Cobbs, explaining that under a Killebrew sentence recommendation, “the neutrality of the judge is maintained because the recommendation is entirely the product of an agreement between the prosecutor and the defendant,” and “[t]he judge’s announcement that the recommendation will not be followed, and of the specific sentence that will be imposed if the defendant chooses to let the plea stand, is the first involvement of the court, and does not constitute bargaining with the defendant, since the judge makes that announcement and determination of the sentence on the judge’s own initiative after reviewing the presentence report.” Williams, 464 Mich at 179. “By contrast, the degree of the judge’s participation in a Cobbs plea is considerably greater, with the judge having made the initial assessment at the request of one of the parties, and with the defendant having made the decision to offer the plea in light of that assessment. In those circumstances, when the judge makes the determination that the sentence will not be in accord with the earlier assessment, to have the judge then specify a new sentence, which the defendant may accept or not, goes too far in involving the judge in the bargaining process.” Id. at 179-180.