6.4Plea Negotiation and Sentence Bargaining

A. Plea Agreements and Sentence Recommendations

A defendant does not have a right to engage in plea negotiations with the prosecution. People v Payne, 285 Mich App 181, 191 (2009). Neither the United States Supreme Court nor the Michigan Supreme Court “‘has recognized that the parties have a right to present a plea.’” Id. at 191, quoting People v Grove, 455 Mich 439, 469 n 36 (1997).1 

1.Record Requirements

Where a defendant’s sentence will result from a plea-based conviction, the trial court must determine whether the parties have made a plea agreement, “which may include an agreement to a sentence to a specific term or within a specific range[.]” MCR 6.302(C)(1).2 Any agreement “must be stated on the record or reduced to writing and signed by the parties,”3 and any written agreement must be made part of the case file. Id. See also MCR 6.610(F)(5), which specifically requires district courts to place plea agreements on the record:

“The court shall make the plea agreement a part of the record and determine that the parties agree on all the terms of that agreement. The court shall accept, reject or indicate on what basis it accepts the plea.”

Where all the terms of a plea agreement are not placed on the record, the trial court and the parties have not fully complied with the rule requirements, which are designed to safeguard the rights of the defendant and the prosecution if enforcement of the plea agreement becomes an issue. People v Hannold, 217 Mich App 382, 386-387 (1996), overruled in part on other grounds by People v Smart, 497 Mich 950 (2015).4 In Hannold, 217 Mich App 385-386, details of the defendant’s agreement to testify against another individual in exchange for a specific sentencing consideration were not included on the record made of the defendant’s plea proceeding; instead, details of the agreement were contained in a sealed document on file with the court. When the defendant failed to provide the promised testimony, the court vacated his plea to a lesser charge, and he was convicted of the original, and more serious, controlled substance charge. Id. at 383-386. Although the Court of Appeals concluded that the parties’ failure to comply with the rule requirements was harmless error, the Court was unequivocal in its disapproval of such conduct:

“This was error. We take this opportunity to emphasize that we do not condone such agreements or procedure and in fact strongly disapprove of plea agreements not fully and openly set forth on the record.” Id. at 387.

2.Negotiating a Plea Agreement: Cobbs and Killebrew

A prosecutor and a defendant may reach a sentence agreement whereby the defendant agrees to plead guilty in exchange for a sentence to a specified term or within a specified range, or in exchange for a nonbinding prosecutorial sentence recommendation. See MCR 6.302(C).5 MCR 6.302(C)(2) “requires a court, that states during a plea hearing that it will sentence the defendant to a specified term or within a specified range, to: (1) inform the defendant that the final sentencing guidelines range may differ from the original preliminary estimate, (2) advise the defendant regarding their right to withdraw the plea pursuant to MCR 6.310(B) if the final sentencing guidelines range as determined at sentencing is different, and (3) provide a numerically quantifiable sentence term or range when providing the preliminary estimate.” MCR 6.302, ___ Mich ___ (staff comment).

However, if the offense to which the defendant is to enter a plea is subject to a mandatory minimum sentence, “the trial court is without authority to impose” a lesser sentence. People v Kreiner, 497 Mich 1024, 1024-1025 (2015) (where the terms of a plea offer called for the defendant to plead guilty of first-degree criminal sexual conduct in exchange for a ten-year minimum sentence, the trial court was “without authority to impose” the proposed sentence because “MCL 750.520b(2)(b) provides that the statutorily authorized punishment for the offense to which [the] defendant [was] to plead guilty under the proposed plea agreement is ‘imprisonment for . . . not less than 25 years’”).

The extent to which a trial court may involve itself in sentence negotiations has been set out by the Michigan Supreme Court in People v Killebrew, 416 Mich 189 (1982), effectively superseded in part by ADM File No. 2011-19,6 and People v Cobbs, 443 Mich 276 (1993). In Killebrew, 416 Mich at 205, the Supreme Court held that a trial court may not initiate or participate in discussions regarding a plea agreement. In Cobbs, 443 Mich at 283, the Supreme Court modified 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 available to the trial court at the time. The Cobbs Court made clear that the trial court’s preliminary evaluation did not bind the court’s ultimate sentencing discretion, because additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources. Cobbs, 443 Mich at 283.

A “trial court did not create impermissible coercion as contemplated by Killebrew” when it “accurately acknowledged its authority to impose an upward departure after trial” and “never initiated or participated in any negotiations for the plea agreement itself.” People v Spears (On Remand), 346 Mich App 494, 526, 527 (2023). In Spears, the Court of Appeals determined that “the prosecution’s statement [was] consistent with its authority to engage in sentence negotiations, and particularly its authority to persuade a defendant to plead guilty in exchange for concessions regarding the charged offense and corresponding sentence.” Id. at 525-526 (noting defendant did not argue that the prosecution’s action was unconstitutionally vindictive). The Court of Appeals did not “fault the trial court for informing defendant that he legally could be subject to a minimum sentence of more than 20 years in prison for second-degree murder if he elected to proceed to trial.” Id. at 527 (holding “the trial court’s isolated and accurate description of its sentencing authority did not violate Killebrew”).

Nonbinding sentence recommendation under Killebrew. Under Killebrew, 416 Mich at 209, a trial court may accept a defendant’s guilty plea without being bound by any agreement between the defendant and the prosecution. Where a trial court has decided not to adhere to the sentence recommendation accompanying the defendant’s plea agreement, the court must explain to the defendant that the recommendation was not accepted and state the sentence that the court finds is the appropriate disposition. Id. at 209-210. However, “[a] judge’s decision not to follow the sentence recommendation does not entitle the defendant to withdraw the defendant’s plea.” MCR 6.302(C)(4).7

Cobbs plea. Cobbs authorizes the trial court, at the request of a party, to state on the record the sentence that appears appropriate for the charged offense, on the basis of information available to the court at the time. Cobbs, 443 Mich at 283. Even when a defendant pleads guilty or nolo contendere to the charged offense in reliance on the court’s preliminary determination regarding the defendant’s likely sentence, the court retains discretion over the actual sentence imposed should additional information dictate the imposition of a longer sentence. Id. at 283. If the court determines it will exceed its previously stated sentence, the defendant has an absolute right to withdraw the plea. Id.8

“The decision in [Cobbs, 443 Mich 276] does not exempt trial courts from articulating the basis for guidelines departures[;]” accordingly, where “the trial court failed to articulate any reason for imposing a minimum sentence that was below the applicable guidelines range,” the case was remanded for the trial court to “‘consult the applicable guidelines range and take it into account when imposing a sentence’” and to “‘justify the sentence imposed in order to facilitate appellate review’” as required under People v Lockridge, 498 Mich 358, 392 (2015). People v Williams, 501 Mich 966 (2018).9

The defendant was not entitled to withdraw his guilty plea on the basis of his erroneous understanding of the trial court’s statement at the preliminary sentence evaluation that his maximum sentence would be 20 years, where the trial court’s statement when read as a whole, clearly indicated that a 20-year minimum sentence was appropriate and the defendant was sentenced to a minimum of 20 years’ imprisonment consistent with the preliminary evaluation. People v Pointer-Bey, 321 Mich App 609, 617 (2017) (holding, however, that the defendant could withdraw his plea in its entirety on other grounds).

“[T]he fact that new information [comes] to light after [a] Cobbs plea [is] entered does not justify the circuit court in vacating [a] defendant’s bargained-for plea.” People v Martinez, 307 Mich App 641, 650-651, 653-654 (2014) (holding that where the defendant entered a guilty plea in exchange for the prosecutor’s agreement not to bring any additional charges regarding contact with the complainant “‘grow[ing] out of [the] same investigation that occurred during [a certain period of years,]’” the “fact that the complainant, after [the] defendant’s plea pursuant to the agreement was accepted, disclosed allegations of additional offenses that were unknown to the prosecutor [did] not create a mutual mistake of fact” permitting the court to vacate the defendant’s plea under either MCR 6.310 or contract principles).

The Michigan Supreme Court has distinguished between a trial court’s role in sentence negotiations occurring under Killebrew and those occurring under Cobbs. People v Williams, 464 Mich 174 (2001). According to the Williams Court, Cobbs modified Killebrew “to allow somewhat greater participation by the judge.” Williams, 464 Mich at 177. However, the Williams Court ruled that the requirement of Killebrew—that a court must indicate the sentence it considers appropriate if the court decides against accepting the prosecutorial recommendation—does not apply to a Cobbs agreement later rejected by the court that made the preliminary evaluation. Williams, 464 Mich at 178-179. The Court explained the distinction between Cobbs and Killebrew as preserving the trial court’s impartiality in sentence negotiations by minimizing the potential coercive effect of a court’s participation in the process:

“In cases involving sentence recommendations under Killebrew, the neutrality of the judge is maintained because the recommendation is entirely the product of an agreement between the prosecutor and the defendant. The judge’s announcement that the recommendation will not be followed, and of the specific sentence that will be imposed if the defendant chooses to let the plea stand,[10] is the first involvement of the court, and does not constitute bargaining with the defendant, since the judge makes that announcement and determination of the sentence on the judge’s own initiative after reviewing the presentence report.

By contrast, the degree of the judge’s participation in a Cobbs plea is considerably greater, with the judge having made the initial assessment at the request of one of the parties, and with the defendant having made the decision to offer the plea in light of that assessment. In those circumstances, when the judge makes the determination that the sentence will not be in accord with the earlier assessment, to have the judge then specify a new sentence, which the defendant may accept or not, goes too far in involving the judge in the bargaining process. Instead, when the judge determines that sentencing cannot be in accord with the previous assessment, that puts the previous understanding to an end, and the defendant must choose to allow the plea to stand or not without benefit of any agreement regarding the sentence.

Thus, we hold that in informing a defendant that the sentence will not be in accordance with the Cobbs agreement, the trial judge is not to specify the actual sentence that would be imposed if the plea is allowed to stand.” Williams, 464 Mich at 179-180.

MCR 6.31011 incorporates the outcome in Williams. MCR 6.310(B)(2)(b) states:

“[T]he defendant is entitled to withdraw the plea if

* * *

(b) the plea involves a statement by the court that it will sentence to a specified term or within a specified range, and the court states that it is unable to sentence as stated; the trial court shall provide the defendant the opportunity to affirm or withdraw the plea, but shall not state the sentence it intends to impose.”12


Committee Tip:

To expedite the process, require the attorneys to provide the court with information regarding the reasons why a Cobbs hearing is appropriate, and, if a hearing is held, why a particular plea is appropriate. If the defendant elects to withdraw his or her plea, the trial court may consider a new Cobbs agreement, or proceed to trial.

 

3.Plea Agreements Involving Probation

A trial court may impose additional conditions on a defendant’s sentence of probation, even when the sentence is part of the defendant’s plea agreement and did not contain the additional conditions. People v Johnson, 210 Mich App 630, 633-635 (1995).

4.Plea Agreements Involving Mental Health Court

Notwithstanding the existence of a memorandum of understanding between a court and the prosecuting attorney that contains a provision that the prosecuting attorney must consent to a defendant’s admission to mental health court, MCL 600.1091(1), the trial court retains “discretion to sentence defendant to participation in mental health court, despite the prosecution’s objection and lack of consent,” because such provisions are understood “to be a standard ‘best practice’ concerning admission” to mental health court, “not a ‘rigid’ rule from which a trial court cannot stray.” People v Rydzewski, 331 Mich App 126, 135 (2020).

5.Plea Agreements Involving Bar-to-Office Conditions

The trial court properly ruled that a term in a plea agreement, which precluded defendant from running for public office while on probation, was unenforceable as against public policy.13 People v Smith, 502 Mich 624, 628 (2018) (further holding that the trial court erred by refusing to allow the prosecutor to withdraw from the agreement once the term was removed from the plea agreement).14 “[W]hen challenged as void against public policy, bar-to-office provisions in plea agreements should be analyzed under the balancing test in [Town of Newton v Rumery, 480 US 386 (1987)].” Smith, 502 Mich at 648. “[A] promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.” Rumery, 480 US at 392. After weighing the interests at stake, it is important to then inquire whether the government has a legitimate reason for requiring the bar-to-office term. Smith, 502 Mich at 643. The public policy considerations outweighed enforcement of the bar-to-office provision in Smith because it restricted the foundational right of voters to select their representatives and reflected only the prosecutor’s own conclusion that defendant should not serve in public office. Id. at 642 Further, “no ‘close nexus’ existed between the charged offenses and defendant’s conduct in office.” Id. at 644.

B.Court’s Refusal To Accept a Plea or Plea Agreement

MCR 6.301(A) permits a court to refuse a defendant’s felony plea as long as the refusal is made pursuant to the court rules. MCR 6.301 applies to circuit court arraignments conducted in district court pursuant to MCR 6.111. MCR 6.111(C).15 If the court refuses to accept the defendant’s plea, the court must enter a plea of not guilty on the record. MCR 6.301(A). “A plea of not guilty places in issue every material allegation in the information and permits the defendant to raise any defense not otherwise waived.” MCR 6.301(A).16

C.Violations of a Sentence Agreement or Recommendation

1.By Prosecutor

“As a general rule, ‘“fundamental fairness requires that promises made during plea-bargaining”’” be respected where the government agent was authorized to enter into the agreement and the defendant relied on the promise to his or her detriment. People v Ryan, 451 Mich 30, 41 (1996).

Where a sentencing agreement negotiated between the defendant and the prosecution is subsequently breached by the prosecution, a reviewing court has discretion to choose between vacating the plea or ordering specific performance, with considerable weight given to the defendant’s choice of remedy. People v Nixten, 183 Mich App 95, 97, 99 (1990) (where the defendant did not assert his innocence and “merely complain[ed] that the prosecution did not keep its part of the bargain,” the Court of Appeals determined that specific performance was the appropriate remedy) (citation omitted).

However, where a defendant is aggrieved by the breach of an unauthorized non-plea agreement with the police (that the defendant not be prosecuted), he or she is not entitled to specific performance of that agreement. People v Gallego, 430 Mich 443, 445, 452 (1988). Instead, suppression or exclusion of the written agreement is an appropriate remedy. Id. at 446, 456-457.

2.By Defendant

“On the prosecutor’s motion, the court may vacate a plea if the defendant has failed to comply with the terms of a plea agreement.” MCR 6.310(E).17 However, where the prosecution’s motion to vacate a plea is not based on the defendant’s failure to comply with the terms of the plea agreement, and the record shows that the defendant fully complied with his or her part of the plea bargain, MCR 6.310(E) does not permit the trial court to vacate the plea on its own motion or that of the prosecutor. People v Martinez, 307 Mich App 641, 648-650 (2014).

“The plain language of MCR 6.310(E) sets no limits on when the prosecutor must file the motion to vacate a plea.” People v Caddell, 332 Mich App 27, 63 (2020). “The rule does not delineate when the prosecutor’s motion must be filed or granted. By contrast, other portions of MCR 6.310 specifically limit when a defendant may move to withdraw a plea and what is required at each timeframe.” Caddell, 332 Mich App at 63 (finding that “[g]iven [defendant’s] numerous inconsistencies, contradictions, and evasive testimony, the trial court did not clearly err by concluding that he failed to comply with the terms of his plea agreement at [co-defendant’s] trial” and that “the prosecutor’s motion, filed less than three weeks after [co-defendant’s] first trial ended, and after [defendant] refused to cooperate with investigators, was not untimely”).

“By submitting a sentence agreement to the trial court, the prosecutor and the defendant enter[] into a contractual bargain”; “[b]ecause the defendant and the prosecutor are equally entitled to benefit from the agreement, when the defendant’s breach prevents the prosecutor from reaping the benefit of the contractual bargain, the prosecutor has a right to rescind the agreement.”People v Anderson, 326 Mich App 747, 752 (2019) (the prosecution was entitled to rescind the sentence agreement where the defendant admitted to perjuring himself in violation of the agreement to provide truthful testimony in exchange for a lighter sentence).18 See also People v Abrams, 204 Mich App 667, 672-673 (1994) (holding that where the defendant breached his plea agreement by engaging in criminal activity, the prosecution was allowed to pursue its case against the defendant); People v Acosta, 143 Mich App 95, 99 (1985) (holding that it was not error for the trial court to grant the prosecution’s motion to void a plea agreement where the defendant absconded, failed to appear to enter his guilty plea, and was arrested eight months later).

Although “even unwise plea bargains are [generally] binding on the prosecutor,” an agreement may not be binding if “‘the prosecutor is misled by force of [the] defendant’s connivance into a disadvantageous agreement or [if] facts not within the fair contemplation of agreement have come to light.’” People v Cummings, 84 Mich App 509, 511-513 (1978) (quoting People v Reagan, 395 Mich 306, 318 (1975), and holding that the trial court properly granted the prosecutor’s motion to set aside a guilty plea where defense counsel, during the bargaining process, concealed material information regarding the defendant’s extensive criminal record) (additional citation omitted).

Additionally, “[e]xcept as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under [MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b)] if the defendant commits misconduct[19] after the plea is accepted but before sentencing.” MCR 6.310(B)(3).

The defendant “did not violate the terms of the plea agreement” by requesting that “the trial court follow the PSIR’s recommendation that he be sentenced to mental health court” where during the colloquy “the trial court noted that the written plea agreement stated ‘No mental health court,’ and interpreted the phrase to mean that the prosecution was not ‘up-front’ consenting to defendant’s admission to mental health court as part of the plea agreement,” but “immediately qualified this interpretation by stating that the question of whether defendant would be admitted to mental health court depended on the recommendation contained within the PSIR.” People v Rydzewski, 331 Mich App 126, 140 (2020). “[W]hile the phrase [‘no mental health court’] on its own appears to be straightforward, a latent ambiguity arises when trying to give effect to the provision in the broader context of effecting the plea agreement.” Id. at 139. “[T]he prosecution stated the trial court had accurately recited the plea agreement’s terms on the record. In light of the interpretation stated by the trial court and accepted by the parties, . . . the plea agreement did not definitively state whether defendant ‘would or would not be considered’ for admission to mental health court.” Id. at 140.

3.By the Court

Where the court accepts a plea bargain in which the prosecutor and the defendant agreed to the sentence to be imposed, the court may not then impose on the defendant a sentence lower than the one to which the prosecutor agreed. To allow such a departure offends the prosecutor’s charging authority, and if the court deviates from the agreement between the defendant and the prosecutor, the prosecutor must be permitted to withdraw. People v Siebert, 450 Mich 500, 504 (1995).

“Plea bargains . . . are more than contracts between two parties. As the judicial representative of the public interest, the trial judge is an impartial party whose duties and interests are separate from and independent of the interests of the prosecutor and [the] defendant. The court’s interest is in seeing that justice is done. In the context of plea and sentence agreements, the court’s interest in imposing a just sentence is protected by its right to reject any agreement, except that which invades the prosecutor’s charging authority. A trial court may reject pleas to reduced charges, and it may protect its sentencing discretion by rejecting sentence agreements. In this sense, neither the prosecutor nor the defendant can dictate the sentence.” Id. at 509-510.

“When [a trial court] rejects either the sentence or a plea term like a bar-to-office provision,[20] while keeping the rest of the agreement, the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to.” People v Smith, 502 Mich 624, 647 (2018) Imposing a different plea bargain on the prosecutor than he or she agreed to is an impermissible infringement on the prosecutor’s charging discretion. Id. at 647. “If the trial court wishes to reject a bar-to-office provision, it must give the prosecutor the opportunity to withdraw from the agreement.” Id. at 647 (the trial court erred by refusing to permit the prosecutor to withdraw from a plea agreement after the court struck a bar-to-office provision21 of the agreement but otherwise sentenced defendant in accordance with the plea agreement).22

A defendant is entitled to withdraw his or her plea, after acceptance but before sentencing, when the court is unable to comply with an agreement for a sentence for a specified term or within a specified range, when the court is unable to sentence a defendant in accord with the court’s initial statement regarding the sentence it would impose, or when the court imposes a consecutive sentence and the defendant was not advised at the time of his or her plea that the law permits or requires a consecutive sentence.23 MCR 6.310(B)(2)(a)-(c).24

“[I]f the court chooses not to follow an agreement to a sentence for a specified term or within a specified range, [the court must explain to the defendant that] the defendant will be allowed to withdraw from the plea agreement.” MCR 6.302(C)(4). However, “[a] judge’s decision not to follow [a prosecutorial] sentence recommendation does not entitle the defendant to withdraw the defendant’s plea.” Id.25

“[T]he plea agreement did not definitively state whether defendant ‘would or would not be considered’ for admission to mental health court” where “[d]uring the colloquy, the trial court noted that the written plea agreement stated ‘No mental health court,’ and interpreted the phrase to mean the prosecution was not ‘up-front’ consenting to defendant’s admission to mental health court as part of the plea agreement,” but “immediately qualified this interpretation by stating that the question of whether defendant would be admitted to mental health court depended on the recommendation contained within the PSIR.” People v Rydzewski, 331 Mich App 126, 140 (2020) (the prosecution also stated that “the trial court had accurately recited the plea agreement’s terms on the record”). Therefore, the trial court did not err in concluding that “in light of the terms of the agreement as stated upon the record, the agreement contained a sentence recommendation rather than a sentence agreement,  . . . which the trial court [was] bound to follow.” Id. at 140-141 (further concluding that Smith was not dispositive because the disregarded plea terms in Smith “were clear and imposed definite obligations on the defendant,” while “the provision of defendant’s plea agreement concerning mental health court [was] ambiguous at best”).

4.Standard of Review

The trial court’s finding that a plea agreement was breached is reviewed for clear error. See MCR 2.613(C); People v Abrams, 204 Mich App 667, 673 (1994). 

D.Ineffective Assistance of Counsel During Plea Bargain Negotiation

“[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Padilla v Kentucky, 559 US 356, 373 (2010),26 citing Hill v Lockhart, 474 US 52, 57 (1985). See also Missouri v Frye, 566 US 134, 143 (2012) (“plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages[]”).27 “A defendant who has entered a plea does not waive his [or her] opportunity to attack the voluntary and intelligent character of the plea by arguing that his or her counsel provided assistance during the plea bargaining process.” People v Horton, 500 Mich 1034 (2017), citing Hill, 474 US at 56-57, and overruling People v Vonins (After Remand), 203 Mich App 173, 175-176 (1993), and People v Bordash, 208 Mich App 1 (1994), “to the extent that they are inconsistent with Hill[.]”

Absent unusual circumstances, where counsel has adequately apprised a defendant of the nature of the charges and the consequences of a plea, the defendant can make an informed and voluntary choice whether to plead guilty or go to trial without a specific recommendation from counsel. People v Corteway, 212 Mich App 442, 446 (1995) (citations omitted); see also People v Armisted, 295 Mich App 32, 49 (2011) (the defendant’s affidavit, stating that trial counsel misinformed him about the minimum sentence that would likely be imposed if he were convicted of the charged offense, “was insufficient to contradict or overcome his previous sworn statements at the plea proceeding . . . that he understood the plea and sentencing agreement[]”); People v White, 307 Mich App 425, 429-430, 432 (2014) (“[the d]efendant’s contradictory affidavit [was] insufficient to contradict his sworn testimony in open court[]” that his plea was entered knowingly and voluntarily, and “the trial court did not abuse its discretion when it denied [his] request for an evidentiary hearing[]” regarding the voluntariness of his plea and the effectiveness of trial counsel).

For a thorough discussion of ineffective assistance of counsel in the context of pleas, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1.

1    Grove, 455 Mich 439, “has been superseded by MCR 6.310(B).” People v Franklin, 491 Mich 916, 916 (2012).

2    Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.

3    “The parties may memorialize their agreement on a form substantially approved by the SCAO.” MCR 6.302(C)(1). See SCAO Form MC 414, Plea Agreement.

4   For more information on the precedential value of an opinion with negative subsequent history, see our note.

5    Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.

6    Effective January 1, 2014. See 495 Mich lxxix (2013).

7    See ADM File No. 2011-19, effective January 1, 2014, effectively superseding Killebrew, 416 Mich at 210, to the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw a guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation. See 495 Mich lxxix (2013).

8    Failure to “‘provide the defendant the opportunity to affirm or withdraw [a] plea[]’” as required by MCR 6.310(B)(2) constitutes plain error that may require reversal. People v Franklin, 491 Mich 916, 916 (2012). In Franklin, 491 Mich at 916, 916 n 1, the Michigan Supreme Court concluded that the trial court’s failure to comply with MCR 6.310(B)(2)(b) could not be considered plain error, “given [the] holding in People v Grove, 455 Mich 439 (1997), that the trial court could reject the entire plea agreement and subject the defendant to a trial on the original charges over the defendant’s objection[;]” however, the Franklin Court clarified that “Grove has been superseded by MCR 6.310(B)[,]” and cautioned that “in the future, such an error will be ‘plain[.]’” The Court further noted that, even assuming that plain and prejudicial error had occurred in Franklin, “[u]nder [the] circumstances, where the defendant did not just fail to object at sentencing, but also failed to object during the subsequent trial and waived his right to a jury trial,” the Court “[was] exercising its discretion in favor of not reversing the defendant’s convictions.” Franklin, 491 Mich at 916, citing People v Carines, 460 Mich 750, 763 (1999).

9    For discussion of the sentencing guidelines, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2.

10    However, see ADM File No. 2011-19, effective January 1, 2014, amending former MCR 6.302(C)(3) and MCR 6.310(B)(2) to eliminate a defendant’s ability to withdraw a plea if the court rejects a plea agreement involving a prosecutorial sentence recommendation (effectively superseding Killebrew, 416 Mich at 210, to the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw a guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation). See 495 Mich lxxix (2013).

11    Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.

12    Failure to provide the defendant with an opportunity to withdraw a plea as required by MCR 6.310(B) constitutes plain error that may require reversal. People v Franklin, 491 Mich 916, 916 (2012). In Franklin, 491 Mich at 916, the Michigan Supreme Court concluded that failing to provide the defendant with the opportunity to withdraw his plea was not plain error in Franklin because of its previous holding in People v Grove, 455 Mich 439 (1997), which permitted “the trial court [to] reject the entire plea agreement and subject the defendant to a trial on the original charges over the defendant’s objection[.]” However, the Franklin Court clarified that MCR 6.310(B) superseded Grove, 455 Mich 439, and stated that because of this “in the future, such an error will be ‘plain[.]’” Franklin, 491 Mich at 916. The Franklin Court also found that even where plain error exists, an appellate court must still “‘exercise its discretion in deciding whether to reverse.’” Franklin, 491 Mich at 916, quoting People v Carines, 460 Mich 750, 763 (1999).

13   The trial court also struck a condition that defendant resign from his current public office. However, the validity of a condition to resign a political office as part of a plea agreement was not addressed by the Michigan Supreme Court because defendant voluntarily resigned from office after the trial court struck the condition. People v Smith (Virgil), 502 Mich 624, 632 (2018).

14   See Section 6.4(C)(3) for additional information regarding violations of a plea or sentencing agreement by a court.

15    MCR 6.111(A), which allows a district judge to conduct the circuit court arraignment following bindover on a felony charge, further provides that “[a] district court judge shall take a felony plea as provided by court rule if a plea agreement is reached between the parties.” With respect to ordinance violations and misdemeanors cognizable in the district court, MCR 6.610(F)(5) permits the district court to reject a plea agreement; however, because the court rule offers no guidance on the procedure or requirements for rejecting such a plea, MCR 6.301(A) is potentially instructive in cases involving offenses cognizable in district court.

16    MCR 6.610(F)(5) permits a district court to reject a plea agreement. However, because the court rule offers no guidance on the procedure or requirements for rejecting a plea made in district court, MCR 6.301(A) is potentially instructive in cases involving offenses cognizable in district court, permits a court to refuse a defendant’s plea as long as the refusal is made pursuant to the court rules.

17    Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.

18    The defendant was convicted following a jury trial and entered into the sentence agreement with the prosecution while his appeal was pending. Anderson, 326 Mich App at 750.

19    “For purposes of [MCR 6.310], misconduct is defined to include, but is not limited to: absconding or failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or plea agreement, or otherwise failing to comply with an order of the court pending sentencing.” MCR 6.310(B)(3).

20    The plea agreement contained a term where the defendant agreed that he would not seek public office during his probationary term. People v Smith (Virgil), 502 Mich 624, 627 (2018).

21   The trial court also struck a condition that defendant resign from his current public office. However, the validity of a condition to resign a political office as part of a plea agreement was not addressed by the Michigan Supreme Court because defendant voluntarily resigned from office after the trial court struck the condition. People v Smith, 502 Mich 624, 632 (2018).

22   See Section 6.4(A)(5) for additional information on bar-to-office plea conditions.

23    However, “[e]xcept as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under [MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b)] if the defendant commits misconduct after the plea is accepted but before sentencing.” MCR 6.310(B)(3).

24    Failure to “‘provide the defendant the opportunity to affirm or withdraw [a] plea[]’” as required by MCR 6.310(B)(2) constitutes plain error that may require reversal. People v Franklin (Joseph), 491 Mich 916, 916 (2012). In Franklin (Joseph), 491 Mich at 916, 916 n 1, the Michigan Supreme Court concluded that the trial court’s failure to comply with MCR 6.310(B)(2)(b) could not be considered plain error, “given [the] holding in People v Grove, 455 Mich 439 (1997), that the trial court could reject the entire plea agreement and subject the defendant to a trial on the original charges over the defendant’s objection[;]” however, the Franklin (Joseph) Court clarified that “Grove has been superseded by MCR 6.310(B)[,]” and cautioned that “in the future, such an error will be ‘plain[.]’” The Court further noted that, even assuming that plain and prejudicial error had occurred in Franklin (Joseph), 491 Mich 916, “[u]nder [the] circumstances, where the defendant did not just fail to object at sentencing, but also failed to object during the subsequent trial and waived his right to a jury trial,” the Court “[was] exercising its discretion in favor of not reversing the defendant’s convictions.” Franklin (Joseph), 491 Mich at 916, citing People v Carines, 460 Mich 750, 763 (1999).

25    See ADM File No. 2011-19, effective January 1, 2014, effectively superseding Killebrew, 416 Mich at 210, to the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw a guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation. See 495 Mich lxxix (2013).

26    Padilla, 559 US 356, has prospective application only under both federal and state rules of retroactivity. See Chaidez v United States, 568 US 342, 344 (2013); People v Gomez, 295 Mich App 411, 413 (2012).

27    “[A]s held by every . . . [federal circuit court of appeals] to consider the issue, . . . Frye[, 566 US 134, did not] . . . create[] a ‘new rule of constitutional law’ made retroactive to cases on collateral review by the [United States] Supreme Court.” In re Liddell, 722 F3d 737, 738-739 (CA 6, 2013), quoting 28 USC 2255(h)(2). Note that, although persuasive, Michigan state courts “are not . . . bound by the decisions of lower federal courts[.]” People v Gillam, 479 Mich 253, 261 (2007).