Plea Bargains in Michigan Criminal Sexual Conduct Cases

A plea bargain in a Michigan criminal sexual conduct (CSC) case is an agreement between the prosecutor and the defense that the court has to review on the record before accepting. The court may not accept a guilty or no contest plea unless it is convinced the plea is understanding, voluntary, and accurate.^[1] In sex-offense cases the consequences the defendant has to be told about include any mandatory minimum sentence and mandatory lifetime electronic monitoring.^[2]

This page explains what the law lets a plea agreement do in a CSC case and what it cannot do. The difference between guilty and no contest pleas, and plea procedure in general, is covered in the sister guide: Guilty vs. no contest and Plea bargains. This library explains the rules; it does not say what anyone should choose. A neutral list of considerations is in Plea or trial: how the decision is framed.

What does the judge have to do before accepting a plea?

MCR 6.302 is one of the plea rules for cases that are tried in circuit court, which includes every degree of CSC.^[8][9] It puts the duty on the court personally. Before accepting a plea of guilty or nolo contendere (no contest), the court places the defendant under oath and carries out the rule's steps.^[1]

1. Name the offense and the sentence exposure. The court advises the defendant of the name of the offense; the rule says the court is not obliged to explain the elements of the offense or possible defenses.^[3] It advises of the maximum possible prison sentence and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring.^[2]
2. Explain the trial rights being given up. These include the right 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 appear at trial, and to question them.^[1] The court also advises that an accepted plea gives up any claim that it resulted from promises or threats not disclosed to the court.^[3]
3. Put the agreement on the record. The court asks the prosecutor and the defendant's lawyer whether they have made a plea agreement. If they have, it is stated on the record or reduced to writing and signed by the parties.^[10]
4. Establish a factual basis. On a guilty plea the court, by questioning the defendant, establishes support for a finding of guilt. On a no contest plea the court does not question the defendant about participation in the crime; it states why that plea is appropriate and holds a hearing that establishes support for a finding of guilt.^[11]
5. Warn about misconduct. The court advises, on the record and in writing, that if the defendant engages in misconduct before sentencing, the court will not be bound by any sentencing agreement or evaluation.^[11]

The court also tells the defendant that he or she may be giving up the right to appeal issues, and that an appeal after a plea is by application for leave to appeal and not by right.^[3]

A reduction of the charge depends on the prosecutor: under MCR 6.301(D) the court may not accept a plea to an offense other than the one charged without the consent of the prosecutor.^[8]

What consequences have to be explained in a sex-offense case?

Lifetime electronic monitoring

The court rule names it expressly.^[2] The Michigan Supreme Court held in People v Cole that when the statute mandates lifetime electronic monitoring, due process requires the trial court to inform the defendant entering the plea that he or she will be subject to it.^[12]

Who is subject to monitoring depends on the offense. The first-degree statute says the court shall sentence the defendant to lifetime electronic monitoring in addition to the prison penalty.^[13] The second-degree statute calls for it if the violation involved sexual contact committed by an individual 17 years of age or older against an individual less than 13 years of age.^[13] In People v Comer the Supreme Court said monitoring is imposed for all defendants convicted of first-degree CSC except those sentenced to life without the possibility of parole.^[14] See Lifetime electronic monitoring.

Sex offender registration

MCR 6.302(B) does not list sex offender registration among the things the court must tell the defendant.^[3] The requirement comes from case law. The Court of Appeals held in People v Nunez (2022), as the Sexual Assault Benchbook quotes it, that because registration is a punitive collateral consequence, a defendant "must be informed of its imposition before entering a guilty plea," and that the registration requirement is to be included in the judgment of sentence.^[4]

Registration follows conviction quickly. A person convicted of a listed offense registers before sentencing.^[15] How long registration lasts depends on the tier: 15 years for a tier I offender, 25 years for tier II, and life for tier III.^[16] The offense a person pleads to therefore matters for the registry as well as for the sentence; see SORA tiers and how long registration lasts.

Consecutive sentences

A court may order a first-degree CSC prison term to be served consecutively to a term for any other criminal offense arising from the same transaction.^[17] If a consecutive sentence will be imposed and the defendant was not advised at the plea that the law permits or requires consecutive sentencing, the defendant is entitled to withdraw the plea.^[18]

What a plea agreement cannot change

Limit	Rule
Mandatory minimum for first-degree CSC, actor 17 or older and victim under 13	Imprisonment for life or any term of years, but not less than 25 years.[19]
Second or subsequent conviction of first-, second- or third-degree CSC	A mandatory minimum sentence of at least 5 years.[20]
Probation	Not available for criminal sexual conduct in the first or third degree.[21]
Delayed sentence	Available only in an action in which the court may place the defendant on probation, for not more than 1 year.[22]
Youthful trainee status (HYTA)	Excludes violations of the first- through fourth-degree CSC statutes other than MCL 750.520d(1)(a) and 750.520e(1)(a).[23]

Where a statute mandates a minimum sentence for a person sent to prison, the court shall impose a sentence in accordance with that statute.^[24] The benchbook puts the consequence for plea bargaining directly: a trial court "is without authority to impose" a punishment less than the statutorily required minimum.^[7]

These limits attach to the offense of conviction. The maximum penalties run from life or any term of years for first degree, to not more than 15 years for second and third degree, to not more than 2 years for fourth degree.^[25][26][27] See Mandatory minimum sentences for CSC, Probation and CSC convictions and HYTA and sex offenses.

What are Cobbs and Killebrew agreements?

These are names of two Michigan Supreme Court cases about the judge's role. As the Criminal Proceedings Benchbook describes them, People v Cobbs modified People v Killebrew to allow the trial court, at the request of a party, to state on the record the length of the sentence that appeared to be appropriate, based on the information then available.^[5] That preliminary evaluation does not bind the court's ultimate sentencing discretion.^[5]

The protection for the defendant is in the withdrawal rule:^[6]

• If the plea involves an agreement for a sentence for a specified term or within a specified range and the court states that it is unable to follow the agreement, the court states the sentence it intends to impose and gives the defendant the opportunity to affirm or withdraw the plea.^[6]
• If the plea involves a statement by the court that it will sentence to a specified term or range and the court states that it is unable to sentence as stated, the court gives the defendant the opportunity to affirm or withdraw the plea, but does not state the sentence it intends to impose.^[6]

A sentence recommendation is treated differently from a sentence agreement. Under MCR 6.302(C)(4), a judge's decision not to follow a prosecutorial sentence recommendation does not entitle the defendant to withdraw the plea.^[28] When the court itself states a sentence, it must say that any guidelines range discussed at the plea hearing is a preliminary estimate, say whether that range is part of the plea, and give a numerically quantifiable term or range.^[28]

There is an exception. Unless the trial court allows it for good cause, a defendant is not entitled to withdraw on these grounds after committing misconduct between the plea and sentencing, such as absconding or violating bond conditions.^[6]

When can a plea be withdrawn?

Stage	Rule
Before the court accepts the plea	The defendant has a right to withdraw any plea.[29]
After acceptance, before sentence	Only in the interest of justice, and not if withdrawal would substantially prejudice the prosecutor because of reliance on the plea.[29]
The court cannot follow an agreement for a specified sentence, or its own stated sentence	The defendant is entitled to withdraw, unless the defendant committed misconduct after the plea and the court does not find good cause.[6]
A consecutive sentence will be imposed without advice at the plea	The defendant is entitled to withdraw.[18]
The court does not follow a prosecutor's sentence recommendation	That does not entitle the defendant to withdraw.[28]
After sentence	A motion to withdraw may be filed within the time for filing an application for leave to appeal; after that, relief is available only under the post-judgment rules in subchapter 6.500.[30]
The defendant does not comply with the plea agreement	On the prosecutor's motion, the court may vacate the plea.[30]

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 if the plea had not been entered.^[30] A claim that a plea was not understanding, voluntary or accurate cannot be raised on appeal unless the defendant first moved in the trial court to withdraw the plea on that ground.^[30]

What else does a plea give up?

Besides the trial rights listed in the court rule, an unconditional plea of guilty or no contest waives the right to challenge the conviction on the ground that the limitations period had expired, according to the Criminal Proceedings Benchbook.^[31] See the statute of limitations defense.

In a case with a qualifying child witness, a videorecorded statement may be used as a factual basis for a no contest plea or to supplement a guilty plea.^[32]

What is the victim's role?

Before finalizing any negotiation that may result in a dismissal, plea or sentence bargain, or pretrial diversion, the prosecuting attorney shall offer the victim the opportunity to consult to obtain the victim's views about the disposition.^[33] The victim also has the right to make an oral impact statement at sentencing.^[34] Neither right is a veto: a crime victim may not determine whether the prosecution of a crime should go forward or be dismissed.^[35]

What people get wrong

"A plea to a lower degree means no registry." Registration depends on whether the offense of conviction is a listed offense and on its tier, not on whether there was a plea.^[15][16]

"The judge promised a sentence." A Cobbs evaluation is preliminary and does not bind the court; what the defendant gets if the judge departs from it is the chance to withdraw.^[5][6]

"Lifetime monitoring only applies when the victim was a young child." That is the second-degree rule; for first degree the Supreme Court has read the statute to cover all convictions other than life without parole.^[13][14] What a trial involves, for comparison, is described in What happens at a CSC trial.