Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 1, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 116535
AVANA WILLIAMS,
Defendant-Appellant.
________________________________
PER CURIAM
This case concerns the procedure to be followed in guilty
plea proceedings when the court determines that it cannot
impose the sentence that was contemplated by a preliminary
understanding under People v Cobbs, 443 Mich 276; 505 NW2d 208
(1993). The defendant contends that, in those circumstances,
when the court offers the defendant the opportunity to
withdraw the plea, it must indicate the sentence that will be
imposed if defendant elects to allow the plea to stand. We
hold that there is no such requirement and affirm the circuit
court’s judgment.
I
Defendant Williams was charged with first-degree retail
fraud.1 On October 16, 1998, she appeared and, after a
conference between counsel and the court, indicated that she
wished to plead guilty to that charge as a fourth felony
offender2 with an understanding under People v Cobbs that the
sentence would be no more than nine months. The court said,
“I will agree to that.” The defendant then offered a factual
basis for the plea and admitted three previous felony
convictions.
Defendant appeared for sentencing on November 6, 1998.
After a conference between counsel and the court, the
following exchange occurred:
The Court: You understand you have a right to
withdraw your guilty plea, Ms. Williams?
Ms. Williams: Yes.
The Court: And you wish to go forward with
sentencing nonetheless?
Ms. Williams: Yes.
The Court: And you understand I’m not going
to abide by the Cobb agreement?
Ms. Williams: Yes.
The court then imposed a 1½-to-15-year sentence.
1
MCL 750.356c; MSA 28.588(3).
2
MCL 769.12; MSA 28.1084.
2
Appellate counsel was appointed for the defendant and
moved for resentencing, arguing that because the court did not
tell the defendant the intended sentence, her affirmance of
her guilty plea was involuntary. The circuit court disagreed
and denied the motion. The Court of Appeals denied the
defendant’s application for leave to appeal. The defendant
has now filed an application for leave to appeal to this
Court.
II
In People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982),
we approved a procedure by which a trial court could have
limited participation in the plea bargaining process. As we
explained the approved procedure:
[W]e now hold that if the plea agreement
offered to the court by the prosecutor and
defendant includes a non-binding prosecutorial
recommendation of a specific sentence, the judge
may accept the guilty plea (after consideration of
the presentence report), yet refuse to be bound by
the recommended sentence. The judge retains his
freedom to choose a different sentence. However,
the trial judge 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. The court must then
give the defendant the opportunity to affirm or
withdraw his guilty plea.
Through this procedure, the defendant will be
fully aware of all the consequences of his guilty
plea. He will thus be able to make a knowing and
intelligent waiver of his right to trial and its
companion rights. Additionally, the judge will
have full exercise of his sentencing discretion.
[416 Mich 209-210.]
3
In People v Cobbs, supra, we modified Killebrew to allow
somewhat greater participation by the judge. Under Cobbs, at
the request of a party the judge “may state 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.” 443 Mich 283 (emphasis in original). We
made clear, however, that this preliminary evaluation does not
bind the judge’s sentencing discretion.
III
A
The defendant makes two claims. First, she asserts that
a guilty plea is not constitutionally valid unless entered in
a voluntary, knowing, and intelligent manner. She maintains
that without knowing the sentence that the trial court will
impose, her ratification of the earlier plea was not a knowing
and intelligent one, since it is made without knowledge of the
sentence to be imposed.
This claim is easily disposed of. Someone in the
position of defendant Williams, faced with the choice between
withdrawing the plea and permitting it to stand without the
limitations of the earlier Cobbs agreement, is in the same
posture as a defendant who initially pleads guilty with no
sentence understanding whatsoever. No one would suggest that
such pleas are invalid because the defendant does not know
what the actual sentence will be.
4
B
The defendant’s other argument is that the language
quoted from Killebrew remains effective after Cobbs.3 Recall
that Killebrew said that in announcing the decision not to
follow the previously recommended sentence:
[T]he trial judge 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. [416 Mich
209.]
Defendant reasons that Cobbs did not overrule Killebrew,
but merely modified it to allow trial judges to participate in
the plea negotiation process on a limited basis.
We reject the defendant’s suggestion that the actual
sentence to be imposed must be announced when the sentencing
court informs the defendant that the Cobbs limits will not be
observed. As our decisions in both Killebrew and Cobbs
recognized, questions concerning the involvement of a trial
court in plea and sentence negotiations are delicate ones that
attempt to minimize the potential coercive effect of the
judge’s participation, to retain the function of the judge as
a neutral arbitrator, and to preserve public perception of the
3
Defendant cites a series of Court of Appeals decisions
before Cobbs enforcing that requirement. People v McGuire,
165 Mich App 198; 418 NW2d 427 (1987); People v Teed, 164 Mich
App 540; 417 NW2d 495 (1987); People v Scott, 197 Mich App 28;
494 NW2d 765 (1992).
5
judge as impartial. Killebrew, 416 Mich 201-205; Cobbs, 443
Mich 284-285.
In cases involving sentence recommendations under
Killebrew, the neutrality of the judge is maintained because
the recommendation is entirely the product of an agreement
between the prosecutor and the defendant. The 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.
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. Instead, when the judge
determines that sentencing cannot be in accord with the
previous assessment, that puts the previous understanding to
6
an end, and the defendant must choose to allow the plea to
stand or not without benefit of any agreement regarding the
sentence.
Thus, we hold that in informing a defendant that the
sentence will not be in accordance with the Cobbs agreement,
the trial judge is not to specify the actual sentence that
would be imposed if the plea is allowed to stand.
Accordingly, the circuit court did not err in refusing to set
aside the defendant’s plea, and the judgment of the circuit
court is affirmed.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
7
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 116535
AVANA WILLIAMS,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I dissent from the majority opinion because it disregards
settled precedent without a sound basis. In reaching its
holding, the majority misconstrues and distorts People v
Killebrew,1 a well-reasoned decision that, for almost two
decades, has mandated a result contrary to the one reached in
this case. Because I regard full disclosure from the bench in
a Cobbs2 setting an essential element of a knowing and
1
416 Mich 189; 330 NW2d 834 (1982).
2
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
voluntary plea proceeding,3 I cannot join the majority's
shrinking of an accused's constitutional right to a fair
trial.
Today's decision considerably weakens the effect of
Killebrew on a defendant who makes a plea in reliance on a
Cobbs agreement. Although the majority opinion avoids language
expressly overruling Killebrew, it achieves the same result by
making an illogical distinction between Killebrew and Cobbs
pleas.
The majority holds that a defendant who has made a Cobbs
agreement is not entitled to know his sentence before
determining whether to withdraw his guilty plea. In Killebrew,
this Court on constitutional grounds expressly rejected
placing a defendant at that disadvantage.
In Killebrew, the defendant4 and the prosecutor entered
into a plea agreement. A dispute arose when it became
apparent that the judge would not sentence the defendant to
the agreed-upon term of imprisonment. We acknowledged that the
judge retained discretion to sentence the defendant to any
3
Forty years ago, we recognized that waiver of a trial
cannot be knowing or voluntary when induced by reliance on
agreed-to concessions by which one party no longer is bound.
In re Valle, 364 Mich 471, 476; 110 NW2d 673 (1961).
4
The individual referenced here is actually Jerome
Briggs, the defendant in People v Briggs, a companion case to
Killebrew.
2
lawful term. However, because the judge intended to increase
the sentence earlier articulated, we held that constitutional
principles required the judge to reveal the term of the final
sentence to be pronounced. Then, the judge had to give the
defendant the opportunity to withdraw or reaffirm the
agreement to plead guilty.
We explained the rationale underlying this rule:
Technically, the defendant has not been
promised a specific sentence. He may nonetheless
tender his guilty plea, waiving his valuable right
to trial.
Although the prosecutorial "recommendation"
would seem to inform the defendant of the
consequences of his plea--that the prosecutor is
-
merely suggesting a sentence and that the judge is
not bound to follow the recommendation--the truth
-
is that most defendants rely on the prosecutor's
ability to secure the sentence when offering a
guilty plea. This is true even when the court
specifically admonishes the defendant that it is
not bound by the prosecutor's recommendation. All
disclaimers that the court is not bound are often
viewed as ceremonial incantations. [Killebrew,
supra at 208, citing State v Goodrich, 116 NH 477,
479; 363 A2d 425 (1976); Alschuler, The trial
judge's role in plea bargaining, part I, 76 Colum L
R 1059, 1069 (1976).]
When we decided Cobbs, a decade after Killebrew, we
acknowledged that its effect was to add to the procedural
landscape that Killebrew had established. It neither
displaced it nor created a new landscape with a separate set
of procedures. In Cobbs, we observed:
In addition to the procedures approved in
3
Killebrew, . . . we today recognize an additional
manner in which a judge may participate in sentence
discussions. At the request of a party, and not on
the judge's own initiative, a judge may state 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. [Cobbs, supra at 283 (emphasis added).]
The majority gives cursory treatment to defendant's first
claim that her plea was not knowing and voluntary because it
was offered without knowledge of the judge's sentencing plans.
The majority disposes of it simply by opining that, once
defendant learned of the judge's intention to disregard the
Cobbs sentence, defendant was returned to her pre-plea
position.
However, the matter is not that simple. Rather than
contemplating whether to plead guilty, her pre-plea position,
defendant was confronted with having to decide, under
pressure, whether to withdraw her guilty plea. She was no
longer able to assess the decision knowing the length of her
sentence, as before. Although she could have chosen to
withdraw the plea, surely she felt increased pressure to let
it stand and to take her chances that the increase in her
sentence would be less than if she lost at trial.
The majority attempts to distinguish a Cobbs plea from
a Killebrew plea. It opines that a policy concern requires
treating Killebrew and Cobbs defendants differently. The
4
policy is to minimize the potential coercive effects of a
judge's participation in sentencing agreements. The majority
concludes that the requirement sought by defendant would "[go]
too far in involving the judge in the bargaining process" by
creating the appearance of direct negotiations between the
judge and defendant regarding the actual sentence to be
imposed.
The requirement sought by defendant is the same as has
existed at least since the Cobbs decision in 1993. The record
reflects no problems resulting from increased negotiations
between judges and criminal defendants since that date. The
majority presents no reason to apply different rules to
Killebrew than to Cobbs agreements.5
For these reasons, I dissent and would reverse the trial
court's judgment, remanding for appropriate proceedings.
CAVANAGH , J., concurred with KELLY , J.
5
A Killebrew plea agreement is made between the
prosecutor and the defendant, without the judge's
participation. A Cobbs plea agreement is made between the
prosecutor and the defendant, but it is based, in part, on the
judge's pronouncement of a preliminary sentence estimate.
5