Last month I reported on the denial of leave to appeal following oral argument in a case where there was confusion over a trial judge’s promise as part of a Cobbs evaluation (a preliminary sentence evaluation offered for purposes of the plea, see People v Cobbs, 443 Mich 276 (1993)). The lack of a decision in the case was disappointing because the record appeared to support the defendant’s claim that he misunderstood the nature of the sentence evaluation. That said, three justices concurred in the denial of leave because they could not grant the relief requested by the defendant, i.e., resentencing to the terms of the preliminary evaluation. In essence, the defendant was requesting a directed sentence rather than plea withdrawal, and the Court rarely, if ever, orders the imposition of a specific sentence. See order denying leave to appeal in People v Jones, 991 NW2d 587 (2023).

What exactly caused the confusion in Jones? The Supreme Court never indicated the precise terms of the preliminary evaluation, although in its order granting oral argument the Court asked the parties to address whether “the trial court indicated it would consider a sentence within a particular range rather than at the very bottom of the sentencing guidelines” and whether the range “was sufficiently clear to enable appellate review.” The Court additionally asked whether there was a right of plea withdrawal when the range discussed at the time of the plea turned out to be incorrect and defendant was not told of the possibility of a different guidelines range at the time of sentencing. People v Jones, 976 NW2d 666 (2022) (order granting oral argument). According to the Court of Appeals decision, there was discussion of a sentence “at the bottom of the guidelines,” the trial judge’s promise to stay at the “low end of the guidelines,” the prosecutor’s initial agreement (later withdrawn) not to object to a sentence at the bottom of the range, an expected range of 29 to 114 months, and discussion of a minimum sentence that would amount to 25 months because defendant had four months of jail credit. The corrected guidelines range at sentencing turned out to be 36 to 142 months, and the trial judge imposed a 50-month minimum term. The defendant’s motion to withdraw the plea was denied, and the Court of Appeals affirmed. People v Jones, unpublished opinion per curiam of the Court of Appeals, issued January 13, 2022 (Docket No. 353209).

So where does this leave the law on preliminary sentence evaluations? Although the Supreme Court did not grant leave, a concurring statement of Justice Cavanagh (joined by Justices Viviano and Bolden) makes some excellent points about the lack of clarity in the trial judge’s evaluation in Jones and the need to avoid this type of ambiguity in the future. She suggested that trial judges would do better to use language such as “a sentence at the low end of the guidelines, defined as the lowest possible sentence within the guidelines range” or a sentence “in the lower or upper half (or some other fraction) of the properly scored sentencing guidelines.” She also recommended that trial judges explain how the preliminary evaluation, if tied to the guidelines range, is based on the correctly scored guidelines and not necessarily the range discussed during the plea hearing.

The latter recommendation dovetails with a proposed court rule amendment of MCR 6.310 that would permit plea withdrawal if a preliminary sentence evaluation is based on an estimated sentencing guidelines range and the range turns out to be different at the time of sentencing. A corollary proposed amendment of MCR 6.302 would require trial judges to state the estimated sentencing guidelines range at the time of the plea when offering a preliminary evaluation of the sentence. ADM File No. 2021-05. The Michigan Judges Association appears to object, filing a letter that voiced concerns over delay of proceedings, discouragement of preliminary evaluations, and an overbroad right of plea withdrawal. Attorney Timothy Baughman advocated abolishing the preliminary sentence evaluation altogether. The State Bar of Michigan Board of Commissioners voted to support the proposed amendments.

The Supreme Court should take some action on the proposed amendments (proposed in November 2021) because the Jones case is not the first to include a poorly communicated preliminary sentence evaluation (as Justice Cavanagh noted with examples). If the Court elects to act, it might consider an even broader amendment that would serve to eliminate the ambiguity and lack of clarity found in Jones and other cases. For example, the Court could amend MCR 6.302 so that a trial judge must 1) state the estimated sentencing guidelines range, 2) ensure that defendant understands the sentence or range of sentences the court is proposing, 3) explain that the final guidelines range will be calculated at sentencing and may differ, and 4) mention the right of plea withdrawal if the court cannot abide by its preliminary evaluation of the sentence. This short dialogue would not impose an unnecessary burden on trial judges given the existing court rule requirement that a plea be understanding, voluntary and accurate. See MCR 6.302(A). In fact, the State Bar Board of Commissioners suggested to the Court that in addition to requiring trial judges to state the estimated sentencing guidelines range as part of a preliminary evaluation, judges should explain during the plea hearing that defendant has a right of plea withdrawal if the preliminary evaluation is not followed. The Board of Commissioners focused on the need for “a defendant [to be] fully advised of the consequences of entering into a plea agreement . . . .” In other words, a defendant must enter a plea that is both voluntary and understanding.

Cases tend to move quickly within the criminal justice system, but it’s not too much to ask that defendants understand the sentences promised to them in return for their pleas. This seems like a basic requirement of the court rules as well as due process.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing out-comes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

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