Plea Bargains in Michigan Domestic Violence Cases

A plea bargain is an agreement between the prosecutor and the defendant to resolve a criminal case without a trial. In Michigan the agreement can cover the charge, the sentence, or both, but the court rules fix several things: in a felony case a plea to a different offense needs the prosecutor's consent, and in any case the agreement must be placed on the record and the judge must determine that the plea is understanding, voluntary and accurate before accepting it.^[1][3][4]

This page explains what can be negotiated in a domestic violence case, who has to agree, what the complaining witness's role is, what a plea gives up, and which consequences to check before agreeing to anything.

What can be negotiated?

The charge

Under the felony plea rules, the court may not accept a plea to an offense other than the one charged without the consent of the prosecutor.^[1] Those rules are not among the ones that govern district court cases, where the plea rule requires the court to make the plea agreement part of the record and determine that the parties agree on all its terms.^[10][3] In either court the decision whether to prosecute belongs to the prosecutor, so a reduction is something the prosecutor offers, not something a defendant can demand.^[2] Which reduced charge is offered, if any, varies by prosecutor's office and by the facts of the case.

The sentence

A plea agreement may include an agreement to a sentence for a specific term or within a specific range.^[3] The felony plea rule treats an agreed sentence differently from a prosecutor's recommendation, which matters if the judge decides not to go along (see below).^[11]

A deferral under MCL 769.4a

For a domestic assault or aggravated domestic assault charge, the law provides a deferral. When a person who has not previously been convicted of an assaultive crime pleads guilty to, or is found guilty of, the offense, the court may, without entering a judgment of guilt, defer further proceedings and place the person on probation.^[7] The deferral requires the consent of the accused and of the prosecuting attorney, who consents in consultation with the victim.^[7]

The terms carry real weight:

• If the person fulfills the terms and conditions of probation, the court must discharge the person and dismiss the proceedings, and the discharge is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.^[8]
• The court must enter an adjudication of guilt if, during probation, the person commits an assaultive crime, violates an order to receive counseling for violent behavior, or violates an order to have no contact with a named individual.^[12]
• A person may receive only one discharge and dismissal under this statute.^[8]
• A completed deferral still counts as a prior conviction in a later prosecution for repeat domestic assault.^[8]

The statute is covered in The MCL 769.4a deferral explained, Does a deferral count as a conviction? and Should you take a deferral?

A delayed sentence

Where probation is an available sentence, a court may delay sentencing for not more than 1 year to give the defendant an opportunity to prove eligibility for probation or other leniency.^[13] A delayed sentence is not a dismissal: no sentence is initially imposed and the charge remains pending.^[14] The statute itself does not provide for a reduction or dismissal at the end of the delay, so anything of that kind depends on the terms of the plea agreement.^[13][14] See Delayed sentence and other outcomes.

Who has to agree?

Person	Role in a plea bargain
Prosecuting attorney	Decides whether to prosecute; in a felony case must consent to any plea to an offense other than the one charged[2][1]
Defendant	The court must ask whether anyone has made promises beyond the agreement, whether anyone has threatened the defendant, and whether pleading is the defendant's own choice[3]
Judge	Must make the agreement part of the record, determine that the parties agree on all its terms, and accept the plea, reject it, or state on what basis it is accepted[3]
Victim	Must be offered the opportunity to consult with the prosecuting attorney before a negotiation is finalized[5][6]

What is the victim's role?

In a felony case, before finalizing any negotiation that may result in a dismissal, a plea or sentence bargain, or pretrial diversion, the prosecuting attorney must offer the victim the opportunity to consult and give the victim's views about the disposition.^[5] The same duty applies in a serious misdemeanor case, a category that includes domestic assault, if the defendant did not already plead guilty or no contest at arraignment.^[6][15]

Consultation is not a veto in either direction. A victim who wants the case dismissed cannot require it, and a victim who objects to an offer cannot block it; in Michigan "the prosecutor alone possesses the authority to determine whether to prosecute the accused."^[2][16] See Crime victims' rights and Can the victim drop the charges?

What does a plea give up?

Before accepting a plea in district court, the judge must advise the defendant of the right to an attorney, any mandatory minimum jail sentence and the maximum possible penalty, and that if the plea is accepted there will be no trial of any kind.^[17] The rights given up are these:

• the right to have witnesses called for the defense at trial;^[17]
• the right to cross-examine all witnesses called against the defendant;^[17]
• the right to testify or to remain silent without an inference being drawn from that silence;^[17]
• the presumption of innocence and the requirement that guilt be proven beyond a reasonable doubt.^[17]

In a felony case the defendant is placed under oath and the judge personally gives the advice.^[4] The defendant is also told that any appeal from a plea-based conviction will be by application for leave, not by right, and that the plea may give up issues that could have been appealed after a trial.^[18]

The difference between the kinds of plea is covered in Guilty, not guilty or no contest.

Sentence agreement or sentence recommendation?

The wording of the agreement decides what happens if the judge disagrees with it. In a felony case, if the plea is in exchange for a sentence to a specified term or within a specified range and the court chooses not to follow that agreement, the defendant will be allowed to withdraw from the plea agreement. A judge's decision not to follow a prosecutor's sentence recommendation does not entitle the defendant to withdraw the plea.^[11]

Conduct after the plea matters too. Under the felony plea rule, a defendant who commits misconduct between the plea and sentencing, which is defined to include violating bond conditions or failing to appear, is not entitled to withdraw the plea when the court declines to follow a sentence agreement, unless the court allows it for good cause.^[19] A release decision, including a no-contact condition, is modified by the court, on a party's motion or on its own initiative.^[20] See Violating a no-contact order.

Consequences to check before accepting an offer

A plea to a domestic violence offense has effects that the judge will not necessarily describe in court. These are the ones to check with a lawyer first.

• Firearms under Michigan law. A person convicted of a misdemeanor involving domestic violence may not possess, use, purchase or carry a firearm or ammunition in Michigan until 8 years after all fines are paid, all imprisonment is served and all conditions of probation are successfully completed.^[21][22] See Michigan's 8-year gun ban.
• Firearms under federal law. Federal law makes it unlawful for a person convicted in any court of a misdemeanor crime of domestic violence to possess a firearm or ammunition, and the provision contains no time limit.^[23][24] See The federal gun ban.
• Immigration. Michigan's plea rules do not list immigration or deportation consequences among the advice the judge must give.^[9] See Immigration consequences.
• A future charge. A second domestic assault is punishable by up to 1 year in jail, and a third is a felony punishable by up to 5 years in prison.^[25][26] A completed MCL 769.4a deferral counts as a prior conviction for those purposes.^[8]
• Probation length. Probation for a misdemeanor may run up to 2 years, and a person convicted of a domestic violence offense is not eligible for reduced probation under MCL 771.2.^[27][28]
• Money. The court must order full restitution to any victim, and a crime victim rights assessment of $75 for a misdemeanor or $130 for a felony applies.^[29][30]

Record and employment effects are covered in What shows on your record and Expunging a domestic violence conviction.

Are plea discussions confidential?

Not confidential, but protected as evidence. Under MRE 410, a statement made during plea discussions with an attorney for the prosecuting authority is not admissible against the defendant who took part if the discussions did not result in a guilty plea, or resulted in a guilty plea that was later withdrawn or vacated. The rule has two exceptions, including a perjury or false-statement prosecution based on a statement the defendant made under oath, on the record and with counsel present.^[31] The rule speaks of discussions with the prosecuting authority's attorney; it does not mention statements made to police.

Withdrawing a plea

A defendant has a right to withdraw any plea until the court accepts it on the record. After acceptance but before sentence, a felony plea may be withdrawn on the defendant's motion only in the interest of justice, and not if withdrawal would substantially prejudice the prosecutor because of reliance on the plea.^[32] In district court, a defendant may not challenge a plea on appeal without first moving in the trial court to withdraw it.^[32]

What people get wrong

"The victim can make the prosecutor offer a deal, or stop one." The victim has a right to be consulted, not a veto.^[6][2]

"The judge has to accept whatever the lawyers agreed to." The court accepts, rejects, or states on what basis it accepts the plea.^[3]

"A delayed sentence means the case gets dismissed after a year." The statute only delays sentencing; the charge remains pending.^[13][14]

"A deferral means it never happened." A completed deferral is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, but it is a prior conviction in a later repeat domestic assault prosecution.^[8]

For help weighing an offer against going to trial, see Plea or trial: how to decide.