Michigan Criminal Sexual Conduct (CSC) charges are like others in the sense that there are essentially only two basic options to consider: take your case to trial, or take a plea deal.
The decision is always your own, and while Prain Law, PLLC prides itself on our jury trial victories of NOT GUILTY of Criminal Sexual Conduct, there are situations where people choose to exercise their right to take a plea deal that has been offered for various reasons.
But if you choose to accept a plea deal in your CSC case, will you know what the Sentence will be in advance? How would you know whether you even want to accept a plea deal without knowing?
What is a Plea Deal?
A "plea deal" or "plea agreement" refers to a scenario where the Prosecution agrees to dismiss some or all charges in exchange for you agreeing to plead guilty or no contest (also called "nolo contendere") to one or more other charges you are currently facing, or some added charge.
For example, let's pretend you are charged with: Count 1, First Degree Criminal Sexual Conduct, MCL 750.520b; Count 2, Third Degree Criminal Sexual Conduct, MCL 750.520d; and Count 3, Second Degree Criminal Sexual Conduct, MCL 750.520c.
Under the Degrees of Criminal Sexual Conduct in Michigan, this would be a scenario where there are allegations of both sexual penetration and sexual contact.
An example of a plea deal would be where the Prosecution offers to dismiss Counts 1 and 2 in exchange for you pleading guilty or no contest to Count 3, Criminal Sexual Conduct 2nd Degree.
Another example would be if you are charged with Count 1, Second Degree Criminal Sexual Conduct and Count 2, Second Degree Criminal Sexual Conduct, and the Prosecution offers to dismiss both Counts in exchange for a plea of guilty or no contest to the "added" Count 3, Fourth Degree Criminal Sexual Conduct, MCL 750.520e, which can in some circumstances be thought of as a "lesser included offense“ to the CSC 2nd Degree charges.
Just as often as it is for a plea deal to be based on one or more of the charges a person is currently facing, it is also typical for the deal to revolve around pleading to a charge the accused was not even charged with as one of the original "Counts." As we see, there is significant room for creativity in the plea-bargaining process.
The main takeaway in these examples is that a "plea deal," when that term is properly used, really has to do with some charge being dismissed in exchange for a plea to some other charge.
Determining the Sentence After Accepting a Plea Bargain
But what about the Sentence? How can anyone decide whether they want to accept a plea deal to something serious as a Criminal Sexual Conduct charge without knowing what their Sentence would be?
If we recall back to grade school, we all learned about a concept called “separation of powers.” There are three branches to the government: Legislative, which makes our laws; Executive, which enforces those laws; and Judicial, which applies those laws and arrives at Judgments in criminal cases and other types of disputes brought under those laws.
The Prosecuting Attorney is part of the Executive branch, just like the Law Enforcement Agency conducting the original Criminal Sexual Conduct investigation. Under the Constitution, the Prosecutor (and only the Prosecutor) has the authority to bring or dismiss criminal charges.
However, the Judge, as part of the Judicial branch, is the only one who has the authority to decide what someone's Sentence will be.
You might be thinking "That makes sense, so can we get the Judge involved in the plea-bargaining process so that the plea deal and Sentence are both locked-in at the same time as part of a package deal so I know what I’m looking at as a complete picture? Or, if that’s not possible, is there some other way to protect myself so that if I accept a plea deal, and the Sentence later turns out to be different than what I anticipated, I at least have the option to back out?"
Those are excellent questions, because if you don’t manage these things in advance, and you only take a plea deal without addressing the Sentencing aspect, then presumably you will be sentenced within your Sentencing Guidelines on the minimum end up to the statutory maximum for your charges. With serious charges like Criminal Sexual Conduct, that is not a good way to leave yourself exposed if you are considering pleading.
Generally speaking, there are two ways to get this assurance regarding your Sentence before deciding whether or not to take any plea deal being offered…
1) The FIRST of these two scenarios, which involves getting the Judge directly involved, is referred to as a “Cobbs evaluation" or sometimes "Cobbs agreement.“
This is where at a hearing, usually a Pretrial Conference, your Criminal Sexual Conduct Defense Attorney would have an opportunity to tell the Judge what you are seeking with regard to your Sentence, and why it is justified (". . . and for those reasons, Your Honor, we feel that a Sentence of no Jail or Prison time and Probation only would be appropriate in this case.").
The Prosecution will of course have an opportunity to express their position, if any. They may have no objection at all, they may agree but with certain stipulations, such as that you do counseling, etc., or they may even be vehemently opposed (but by the time this conversation with the Judge is occurring, there tends to be some consensus in place between the Prosecution and Defense).
Regardless, the Judge will make and announce their decision based on their assessment of the case, which may sound something like this . . .
“Okay, thank you, counsel. I’m prepared to make a representation pursuant to People v. Cobbs that if the Defendant were to accept the plea deal being offered, I would sentence him/her to XYZ/ABC. If, at the time of Sentencing, I should decide for any reason that I can no longer abide by this agreement and would have to sentence you more severely, then you would have the right to withdraw your plea and go back to either negotiate another resolution, or exercise your right to go to trial."
The reason this is called a “Cobbs“ is because People v. Cobbs, 443 Mich 276 (1993) is the seminal case where the Michigan Supreme Court recognized this practice.
To summarize, a Cobbs is not a promise to receive any particular Sentence. Rather, it secures the right to withdraw your plea if the Judge decides they must sentence you more harshly. If so, you are entitled to know what that different (i.e., more severe) Sentence would be so that you can decide whether to accept it and move forward, or withdraw your plea.
Nevertheless, Judges most often follow their own Cobbs evaluations at the time of Sentencing unless something very significant changes because resolving cases in this manner, among other things, helps to move their busy Court dockets along.
2) In the SECOND of these two scenarios whereby you can address Sentencing before taking a plea, the Judge is not directly involved, and the agreement is between your Criminal Sexual Conduct Attorney and the Prosecutor. This is often referred to as a “Sentence Agreement,“ or also a "Killebrew“ agreement, because like the above, People v. Killebrew, 416 Mich 189 (1982) is the seminal case where the Michigan Supreme Court recognized the practice.
You might be thinking “But I thought you just said the Prosecutor doesn’t have the authority to determine the Sentence." And that’s absolutely correct. But as with the Cobbs, the Defense and Prosecution are not creating any type of actual promise that you’ll certainly get the agreed-upon sentence - you retain the right to withdraw your plea if the Judge determines they have to do something different.
Again, typically at a Pretrial Conference, one of the Attorneys will inform the Judge of the Sentence Agreement. For example, the Prosecutor might say “Your Honor, we believe we have a resolution to this case. Our office has offered a plea deal by which the Defendant we would be dismissing Counts 1 and 2, both of which are Second Degree Criminal Sexual Conduct, in exchange for a plea of guilty to the added Count 3, Fourth Degree Criminal Sexual Conduct."
They would go on to say something like this . . .
"Additionally, Your Honor, the plea offer includes a Sentence Agreement under People v. Killebrew, which I’ve discussed with Defense counsel, that there be a term of Probation only and no up-front incarceration unless there is a violation of Probation. Our office, through our Victim Advocate, has consulted with the Complainant and his/her family in this matter, and they are in agreement. It is my understanding that the Defense wishes to accept this plea deal on those terms, including the Sentence Agreement."