Offered a plea deal? The decision is yours, so understand what you give up first
I am Mitchell Bisson, a Grand Rapids criminal defense lawyer. I have litigated for over 15 years. This page explains how guilty and no contest pleas work in Michigan criminal cases: what the judge has to tell you, how plea agreements and sentence promises are handled, and when a plea can be taken back. I prepare every case as if it will be tried, and I explain each offer in plain terms. I do not promise outcomes.
The short answer. A plea gives up your right to a trial, so the Michigan court rules require the judge to be convinced that it is understanding, voluntary and accurate before accepting it. MCR 6.302(A). The judge must tell you the maximum possible prison sentence and any mandatory minimum, and must go through the trial rights you give up. A plea agreement can include a sentence term or range, but the judge does not always have to follow it, and your right to take the plea back depends on timing and on what was promised. A plea to a lesser charge needs the prosecutor’s consent. Nothing here predicts how your case will end.
Many criminal cases are resolved by a plea, and an offer can come early. The Supreme Court of the United States has said that criminal justice today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). That makes the plea stage one of the most important parts of a case, and people can feel pressure to decide in a hurry. In a felony case, the probable cause conference in district court includes discussion of a possible plea agreement, and the court sets it between 7 and 14 days after arraignment. MCL 766.4(1).
Whether to take an offer is your decision, not mine and not the judge’s. My job is to tell you what the charge requires the prosecutor to prove, what the evidence looks like, what the sentence exposure is with the deal and without it, and what you would be giving up. If an offer is not worth taking, I say so. If a case should be tried, I prepare it for trial.
Kinds of pleas and who has to agree
The court rules list the pleas a defendant may enter and say which ones need someone else’s consent. The table sets out the ones I discuss most often.
| Plea | Whose consent is needed | What it means | Authority |
|---|---|---|---|
| Not guilty | None. If a defendant refuses to plead or stands mute, the court enters not guilty | Puts in issue every material allegation in the information and lets the defendant raise any defense not otherwise waived | MCR 6.301(A) |
| Guilty | None beyond the court’s acceptance, which requires that the plea be understanding, voluntary and accurate | Ends the trial and moves the case to sentencing | MCR 6.302(A) |
| Nolo contendere (no contest) | The court | The judge may not question you about taking part in the crime. The court must state why the plea is appropriate and hold a hearing that supports a finding of guilt | MCR 6.301(B); MCR 6.302(D)(2) |
| Conditional plea | The court and the prosecutor | Preserves a specified pretrial ruling for appeal and lets you withdraw the plea if that ruling is overturned. The appeal is by application for leave only | MCR 6.301(C)(2) |
| Plea to a different or lesser offense | The prosecutor | The court may not accept a plea to an offense other than the one charged without the prosecutor’s consent | MCR 6.301(D) |
| Guilty but mentally ill, or not guilty by reason of insanity | The court and the prosecutor, after an insanity defense has been asserted | Requires the examination the law calls for before the plea is entered | MCR 6.301(C)(1) |
A no contest plea does not skip the plea requirements. MCR 6.302 governs guilty and no contest pleas together, and the main difference is that the judge does not question you about your part in the crime. The other difference is how the plea can be used later, which I cover below.
What the judge must tell you and ask you before accepting a plea
Before taking a plea of guilty or no contest, the court must place the defendant under oath and personally go through the requirements of the rule. MCR 6.302(A). The rule has four parts, and each one is a place a plea can later be challenged.
An understanding plea. Speaking directly to you, the judge must advise you of the name of the offense, the maximum possible prison sentence and any mandatory minimum sentence required by law, and that you give up a trial of any kind. The rule lists the trial rights: to be tried by a jury, to be presumed innocent until proved guilty, to have the prosecutor prove guilt beyond a reasonable doubt, to have the witnesses against you appear, to question them, to have the court order your own witnesses to appear, to remain silent without that silence being used against you, and to testify if you want to. MCR 6.302(B)(1) to (3). The judge must also tell you that you give up any claim that the plea came from a promise or threat that was not disclosed in court, and that you may be giving up the right to appeal issues you could raise after a trial. Any appeal from a plea is by application for leave, not by right. MCR 6.302(B)(4), (5); MCL 770.3(1)(d).
A voluntary plea. The court must ask the prosecutor and your lawyer whether there is a plea agreement. If there is one, it has to be stated on the record or put in writing and signed by the parties. The court then asks you whether anyone has promised you anything beyond the agreement, whether anyone has threatened you, and whether it is your own choice to plead. MCR 6.302(C)(1), (3), (5). This is why I tell clients never to agree to something “off the record.” A promise that is not placed on the record is the kind of promise the rule says you give up when you plead.
An accurate plea. If you plead guilty, the judge has to question you until there is a basis for finding you guilty of the offense. A factual basis cannot be skipped. MCR 6.302(D)(1). If you plead no contest, the judge may not question you about your part in the crime, and the court must instead hold a hearing, unless there has already been one, that supports a finding of guilt. MCR 6.302(D)(2).
Final checks. At the end the court asks the prosecutor and your lawyer whether either knows of any other promises, threats or inducements and whether the court has followed the rule. If the court has missed something, it may not accept the plea until the problem is fixed. The court must also tell you, orally and in writing on the state court administrator form, that if you commit misconduct before sentencing, the court will not be bound by any sentencing agreement or evaluation. MCR 6.302(E).
Plea agreements, sentence promises and the right to take a plea back
A plea agreement can be a promise about the charge, a promise about the sentence, or both. The sentence part is where most disputes come from, because the judge, not the prosecutor, imposes the sentence.
A sentence agreement or recommendation. When the agreement is to a sentence for a specific term or within a specific range, or the prosecutor will recommend one, the court has four choices under the rule. It may reject the agreement, accept it after considering the presentence report, accept it without having considered the report, or take it under advisement. If it accepts without the report or takes the agreement under advisement, it must explain that it is not bound, and that if it chooses not to follow an agreement to a specified term or range you will be allowed to withdraw from the plea agreement. The rule also says that a judge’s decision not to follow a mere sentence recommendation does not entitle you to withdraw your plea. MCR 6.302(C)(4). That last sentence is why I want the exact words of any deal before you enter it. A “recommendation” and an “agreement to a sentence” are not the same thing. In People v. Killebrew, 416 Mich. 189, 210 (1982), the Michigan Supreme Court held that the court must give the defendant the opportunity to affirm or withdraw the plea.
A judge’s preliminary evaluation. Sometimes the judge states on the record what sentence the judge has in mind. Under People v. Cobbs, 443 Mich. 276, 283 (1993), a defendant who pleads in reliance on that preliminary evaluation has a right to withdraw the plea if the judge later decides the sentence must exceed it. The rule now adds details: if the court says it will sentence to a specified term or range, the term or range must be numerically quantifiable, such as the lower half or upper quarter of a range, and the court must say whether a sentencing guidelines range discussed at the plea hearing is part of the plea, so that you can withdraw if the final range is different. MCR 6.302(C)(2). If the court states that it cannot sentence as it said, it must give you the chance to affirm or withdraw the plea, but in that situation it does not state the sentence it intends to impose. MCR 6.310(B)(2)(b).
A prosecutor’s promise. The prosecutor is held to the bargain. The Supreme Court has said that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it is part of the inducement or consideration, the promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). If the deal is broken, I raise it right away.
Consecutive sentences. Before sentencing, a defendant is entitled to withdraw a plea if a consecutive sentence will be imposed and he or she was not advised at the time of the plea that the law permits or requires consecutive sentencing in the case. MCR 6.310(B)(2)(c). I ask early whether any count carries a consecutive term.
Misconduct before sentencing. The right to withdraw under a sentencing agreement or evaluation can be lost if you commit misconduct after the plea is accepted and before sentencing. The rule defines misconduct to include absconding, failing to appear for sentencing, violating bond conditions or the terms of a plea or sentencing agreement, or otherwise failing to comply with a court order, unless the court allows withdrawal for good cause. MCR 6.310(B)(3). The weeks between plea and sentencing matter as much as the plea hearing.
Taking a plea back: the timing rules
| When | What the rule says | Authority |
|---|---|---|
| Before the court accepts the plea on the record | The defendant has a right to withdraw any plea | MCR 6.310(A) |
| After acceptance but before sentence | A plea may be withdrawn on the defendant’s motion or with the defendant’s consent only in the interest of justice, and not if withdrawal would substantially prejudice the prosecutor because of reliance on the plea. Some situations give a right to withdraw, such as a sentence agreement the court cannot follow | MCR 6.310(B)(1), (2) |
| After sentence | A motion to withdraw must be filed within the time for an application for leave to appeal. After that, relief is only through the procedure in subchapter 6.500 | MCR 6.310(C)(1), (2) |
| On appeal | A claim that the plea was not understanding, voluntary or accurate, or that the plea rules were not followed, generally cannot be raised unless a motion to withdraw the plea was first made in the trial court | MCR 6.310(D) |
The last row means a plea mistake not raised in the trial court is usually lost, so if I see a problem at the plea hearing I put it on the record that day. Taking a plea back is also not free. If a plea is withdrawn or vacated, the case may proceed to trial on any charges that had been brought or that could have been brought against you if the plea had not been entered. MCR 6.312. A withdrawal can reopen charges the prosecutor had agreed to drop, so I explain that risk before anyone files a motion.
Michigan’s rule of evidence offers some protection. A guilty plea that was later withdrawn or vacated, a statement made during a plea proceeding under MCR 6.302 or 6.310, and a statement made during plea discussions with a prosecutor that did not result in a guilty plea are not admissible against the defendant who made them, subject to two exceptions in the rule. MRE 410(a), (b). I never assume that protection reaches statements made to police.
Pleas that carry consequences outside the courtroom
A plea can lead to a conviction, and a conviction has effects that the judge is not required to explain. These are the ones I ask about at the first meeting.
Immigration. The Supreme Court has held that counsel must inform a client whether the plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). If you are not a United States citizen, I need to know that before any discussion of an offer, and the immigration effect of a plea has to be checked before you plead, sometimes with an immigration lawyer.
Civil lawsuits. A person who is hurt in an incident often sues the person who was charged. The rule of evidence protects a no contest plea from use against the defendant who made it, with one exception: to the extent evidence of a guilty plea would be admissible, evidence of a no contest plea to a criminal charge may be admitted in a civil proceeding to defend against a claim asserted by the person who entered the plea. MRE 410(a)(2). I discuss pending or likely civil claims with you before recommending a no contest plea.
Probation terms, your work and your record. A plea usually comes with terms such as probation, fines, costs, restitution and no-contact orders, and violating them can bring a new sentence. I review the terms line by line, and I ask what you do for a living and whether you need to drive, so that I do not recommend a plea that costs you more than the charge.
Poor advice about a plea is a constitutional problem
The Supreme Court has held that, as a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). It has also held that a defendant who rejects an offer because of ineffective advice and is then convicted at trial must show a reasonable probability that the plea offer would have been presented to the court, meaning the defendant would have accepted it and the prosecution would not have withdrawn it in light of intervening circumstances, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than the judgment and sentence that in fact were imposed. Lafler v. Cooper, 566 U.S. 156, 164 (2012).
That is the standard I hold myself to: every formal offer is communicated to you, with its deadline, and I explain the numbers behind it.
Ways a charge may end without a trial or a conviction
A plea is not the only way to avoid a trial, and it does not always protect your record. Whether any of these is available depends on the charge, your history, the evidence and, often, the prosecutor.
Dismissal or reduction at the preliminary examination. If the magistrate decides at the end of the examination that no felony was committed or that there is no probable cause, the magistrate must either discharge the defendant or reduce the charge to an offense that is not a felony. MCL 766.13.
A plea to a lesser charge. A plea to an offense other than the one charged needs the prosecutor’s consent. MCR 6.301(D). I put the weaknesses in the case in front of the prosecutor when that helps.
Deferral programs. Some statutes let a court defer proceedings, place you on probation without entering a judgment of guilt, and dismiss the case if you complete the terms. Under the Public Health Code, a person with no earlier conviction under the drug laws the statute lists who pleads guilty to or is found guilty of certain possession or use offenses may, with consent, be placed on probation without a judgment of guilt, and on fulfillment of the terms the court discharges and dismisses; there may be only one discharge and dismissal. MCL 333.7411(1). For assault or assault and battery charges where the victim is a spouse, former spouse, parent of a child in common, dating partner or household resident, and the accused has no earlier assaultive conviction, the court may defer proceedings with the consent of the accused and of the prosecutor in consultation with the victim. MCL 769.4a(1). Under the youthful trainee statute, a court may, with the person’s consent, assign a person who pleads guilty to the status of youthful trainee without entering a judgment of conviction, for offenses committed on or after the 18th birthday and before the 26th birthday, with exclusions such as traffic offenses and life felonies. MCL 762.11.
Delayed sentence. In many cases the court may delay sentencing for up to one year to give the defendant a chance to prove eligibility for probation or other leniency, such as participation in a drug treatment court. MCL 771.1(2). It is not available for every offense, and I check the statute’s exclusions for yours.
A conditional plea. If the case turns on one pretrial ruling, such as a motion to suppress, a conditional plea with the prosecutor’s and the court’s consent lets you appeal that ruling and withdraw the plea if the ruling is overturned. MCR 6.301(C)(2).
How I handle a plea decision
- Read the charges and the exposure. I start with the complaint or information, the statute and the sentencing guidelines. I work out the maximum, any mandatory minimum, and the likely range with and without the offer.
- Get the evidence. I request the police report, video, lab results and statements. An offer made before I have seen the evidence is an offer I cannot properly evaluate.
- Test the case before the deal. Motions to suppress, challenges to the proof at the preliminary examination and weaknesses in a witness can change what the prosecutor is willing to offer.
- Get the offer in writing and on the record. I ask the prosecutor to state the terms exactly, including what is dismissed, what the sentence terms are, whether a guidelines range is part of the deal and whether anything is consecutive.
- Explain the choice. I put the offer and the alternative side by side: what the deal gives, what it costs, what the trial risk is. I tell you what I would do and why, and then the decision is yours.
- Prepare you for the plea hearing. I go over the questions the judge will ask so that your answers are truthful, accurate and your own. If you do not want to plead, I try the case.
- Protect the record. If anything goes wrong at the hearing, I object that day, and if it affects your rights I move to withdraw the plea in the trial court.
What I need from you
Bring the charging papers, the bond order and every piece of paper from the court, along with any police report, ticket or search warrant you were given. Write down your own account of what happened and your prior record, including dates and courts. Tell me about your citizenship or immigration status, your job, any professional license, any pending civil case and any probation or parole. Bring the exact wording of any offer you have been given, whether it came by letter, email or from a prosecutor in the hallway. Do not discuss the case with the police or the complaining witness, and do not sign a plea form until we have gone through every line.
Where your Kent County plea will be heard
I represent clients charged in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. A felony begins in district court with an arraignment and, if the case continues, a preliminary examination. MCL 600.8311(c), (e). Michigan law sets the Kent County district courts by municipality. The 61st District Court serves the city of Grand Rapids, the 59th serves the cities of Grandville and Walker, the 62A serves the city of Wyoming and the 62B serves the city of Kentwood. MCL 600.8128a; MCL 600.8130(1)-(3). The 63rd District Court serves the rest of Kent County, which includes the cities of Rockford, Lowell, Cedar Springs and East Grand Rapids and the surrounding townships. MCL 600.8130(4). If the magistrate binds the case over, the felony is arraigned in the circuit court, which for Kent County is the 17th Judicial Circuit. MCL 766.13; MCL 600.8311(f); MCL 600.518. A district judge has the authority to accept a felony plea, and sentencing for a felony is conducted by a circuit judge whose name is available before the plea is taken. MCL 766.4(3). Misdemeanor pleas are taken in the district court. MCL 600.8311(a).
Why people hire me for a Michigan plea matter
You work directly with me, the lawyer handling your case. I tell you where the prosecutor’s case is strong and where it is thin, what each offer would mean in months and years, and what you give up by accepting it. I do not promise outcomes. I build the case the facts support and prepare for trial, because an offer is only worth evaluating against a real alternative, and then we decide together how to proceed.
My fee depends on the charges, how complicated the case is and how far it is likely to go. We talk about the fee at the consultation, before you decide whether to hire me.
Questions I hear from people offered a plea deal in Michigan
What kinds of pleas can I enter in a Michigan criminal case?
Under MCR 6.301(A), you may plead not guilty, guilty, nolo contendere (no contest), guilty but mentally ill, or not guilty by reason of insanity. No contest needs the court’s consent. A conditional plea needs the consent of both the court and the prosecutor, as does guilty but mentally ill or not guilty by reason of insanity after an insanity defense. If you refuse to plead or stand mute, the court enters not guilty.
What is a Cobbs agreement in a Michigan plea?
A Cobbs evaluation is the judge’s preliminary statement, on the record and at a party’s request, of the sentence that appears appropriate on the information then available. If you plead in reliance on it and the judge later decides the sentence must exceed it, you have a right to withdraw your plea, which Cobbs called absolute, though you can lose it by committing misconduct before sentencing, such as absconding or violating bond (MCR 6.310(B)(3)). It comes from People v Cobbs, 443 Mich 276.
What is a Killebrew agreement, and what if the judge will not follow it?
A Killebrew agreement is a plea deal between you and the prosecutor that includes a sentence recommendation or agreement, such as a specific term or range. If the judge rejects the bargain or will not follow a sentence agreement, you must be allowed to withdraw your plea. Under MCR 6.302(C)(4), a judge’s decision not to follow a mere sentence recommendation does not by itself allow withdrawal, even though Killebrew originally allowed it. The right to withdraw can be lost if you commit misconduct before sentencing (MCR 6.310(B)(3)).
Can I change my mind and withdraw my plea in Michigan?
It depends on timing. You may withdraw any plea until the court accepts it on the record. After acceptance but before sentence, a plea may be withdrawn only in the interest of justice and not if it would substantially prejudice the prosecutor, though some situations give you a right to withdraw. After sentence, a motion to withdraw must be filed within the time for an application for leave to appeal, and later relief is under subchapter 6.500.
Can I plead guilty to a lesser charge in Michigan?
Only with the prosecutor’s consent. MCR 6.301(D) says the court may not accept a plea to an offense other than the one charged without the consent of the prosecutor. Whether a lesser charge is offered depends on the prosecutor, the facts, your record, and the strength of the evidence.
Can a guilty plea in Michigan get a noncitizen deported?
It can, and your defense lawyer has a duty to tell you about the risk. In Padilla v Kentucky, the United States Supreme Court held that counsel must inform a client whether a plea carries a risk of deportation. The immigration effect of a given plea has to be checked before you plead.
Related Michigan pages
- Grand Rapids criminal defense lawyer
- Felony defense
- Misdemeanor defense
- Trial, sentencing and habitual offender
- Appeals after a guilty or no contest plea
I represent people offered plea deals in Kent County and West Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.