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What is a Cobbs Plea in a Criminal Case?

A Cobbs plea can be sought from a judge on a felony case, and the judge will provide his or her assessment of the case, indicating to the accused what the likely sentence will be if the defendant pleads guilty to a certain offense. The  "judge's preliminary evaluation of the case does not bind the judge's 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. However, a defendant who pleads guilty or nolo contendere in reliance upon a judge's preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation." People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

The decision in Cobbs explains:

Our decision in People v. Killebrew, 416 Mich. 189, 202 (Mich. 1982) reflected a balance between two conflicting considerations. First, judicial involvement must be limited in order "to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice." Id., 416 Mich 202.

The coercive potential of judicial involvement is obvious, and stems from the overwhelmingly advantageous bargaining position of the judge. Equally important is the fact that "[t]he public perception of the judge as a neutral arbiter must suffer when the judge descends from the bench to barter with the defendant and prosecutor over the terms of the deal he advocates." Id. at 204.

The countervailing consideration is that, in the end, the judge must impose a sentence. The Legislature has provided substantial sentencing discretion to the judiciary, and the judge may not abdicate this function by allowing sentence agreements to control the sentencing process.

In light of these considerations, we concluded in Killebrew that the judge may not initiate or participate in discussions regarding the sentence that is to be imposed. Rather, "the judge's role in plea negotiations, sentence bargaining included, is limited to consideration of the bargain between the defendant and the prosecutor. The judge may not become involved in the negotiation of the bargain." Id., 416 Mich 194. We explained:

In balancing these competing considerations -- that the degree of involvement must be kept minimal to avoid a coercive atmosphere and to retain public confidence in the judicial system and that judicial control of sentencing is required by statute -- we now hold that a trial judge shall not initiate or participate in discussions aimed at reaching a plea agreement. He may not engage in the negotiation of the bargain itself. The trial judge's role in the plea-bargaining procedure shall remain that of a detached and neutral judicial official. [Killebrew, 416 Mich 205.]

Killebrew permitted a judge to approve or reject a sentence agreement reached by the parties, or a prosecutorial sentence recommendation that was the product of negotiations between the parties. In requiring a judge who rejects a prosecutorial sentencing recommendation to state the sentence that would have been appropriate, this Court also acknowledged the practical impossibility of precluding all judicial involvement in the negotiation process.

A decade has passed since  we decided Killebrew, and we are satisfied that the principles stated in our 1982 opinion remain sound. However, we are now persuaded that the rules governing judicial participation in sentence discussions should be modified.

In addition to the procedures approved in Killebrew, 416 Mich 206-212, 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.

To avoid the potential for coercion, a judge must not state or imply alternative sentencing possibilities on the basis of future procedural choices, such as an exercise of the defendant's right to trial by jury or by the court.

The judge's preliminary evaluation of the case does not bind the judge's 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. However, a defendant who pleads guilty or nolo contendere in reliance upon a judge's preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation.

While a judge remains subject to disqualification for the grounds stated in MCR 2.003, a decision not to sentence a defendant in conformance with a preliminary evaluation is not an automatic basis for recusal. A judge's candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known.

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William Maze is an established Livonia Michigan attorney in Wayne County Michigan, and he has represented well over a thousand satisfied criminal defense clients across the state.  He has received multiple awards and recognitions, and he maintains a national reputation as one of the leading drunk driving defense attorneys in the country.  

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