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What Is A Cobbs Evaluation In Michigan?

Simply put, a Cobbs Evaluation is plea bargaining in a criminal case in Michigan that involves the participation of the trial judge. Generally, the prosecutor and the defense attorney will make an agreement on what charges that the defendant will plead to, and the judge will indicate (if he or she accepts the plea bargain) what the possible sentence for the defendant will be (called a "preliminary evaluation of sentence"). This sentencing evaluation by the trial judge is placed on the record at the time that the plea is taken. At the sentencing hearing, if the judge decides he or she cannot live up to the preliminary evaluation of sentence and imposes a harsher punishment, then the defendant has the absolute right to withdraw his or her plea and demand a trial.

This evaluation is unique to Michigan law and comes from a Michigan Supreme Court decision in People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). In that case, the defendant was charged with kidnapping and assault with a dangerous weapon. The trial judge indicated on the record that, if the defendant pled guilty, that he would "let him have an understanding that the maximum term would not be more than five years for the kidnapping...". The prosecutor objected to the judge's representation because he had not been a party to the negotiations and that it did not provide justice for the victims. The judge accepted the defendant's plea and, keeping true to his earlier remarks, sentenced the defendant to less than five years in prison.

On appeal, the prosecutor argued that the trial judge violated the principles laid out in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). In that case, the Michigan Supreme Court was concerned that a judge active in plea negotiations will appear to have a coercive effect on the defendant and cloud the trial judge's position as a neutral arbitrator of justice.

"In balancing these competing considerations that the degree of involvement must be kept minimal to avoid a coercive atmosphere and to retain public confidence in the judicial system and that judicial control of sentencing is required by statute we now hold that a trial judge shall not initiate or participate in discussions aimed at reaching a plea agreement. He may not engage in the negotiation of the bargain itself. The trial judge's role in the plea-bargaining procedure shall remain that of a detached and neutral judicial official." Killebrew, 416 Mich at 205.

The Michigan Court of Appeals agreed with the prosecutor's assessment of Killebrew and remanded the case for resentencing before the trial judge. The Michigan Supreme Court, which reinstated the sentence, held that the underlying principles of Killebrew remain sound, but the manner in which a judge may participate in sentencing discussions should be modified:

  • "At the request of a party, and not on the judge's own initiative, a judge may state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense." Cobbs, 443 Mich at 283.
  • "To avoid the potential for coercion, a judge must not state or imply alternative sentencing possibilities on the basis of future procedural choices, such as an exercise of the defendant's right to trial by jury or by the court." Cobbs, 443 Mich at 283.
  • "The judge's preliminary evaluation of the case does not bind the judge's sentencing discretion, since 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. However, a defendant who pleads guilty or nolo contendere in reliance upon a judge's preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation." Cobbs, 443 Mich at 283.
  • "[A judge's] decision not to sentence a defendant in conformance with a preliminary evaluation is not an automatic basis for recusal. A judge's candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known." Cobbs, 443 Mich at 283.
  • "[T]he judge's final sentencing decision must await receipt of all the necessary information." Cobbs, 443 Mich at 284. The prosecutor's right to charge offenses and "right to introduce additional facts at appropriate points during the remaining pendency of the case, such as during allocution at sentencing." Id at 284. The crime victim also retains "the right of allocution at sentencing and to provide an impact statement for inclusion in the presentence report." Id at 284.

The Cobbs evaluation remains a powerful tool for both the defendant and defense counsel to use today. The defendant can only benefit from knowing the judge's assessment of a sentencing range ahead of entering plea because it provides helpful information in deciding whether it is a better alternative for going to trial. However, there are some important considerations that everyone should know about the Cobbs evaluation:

  • Judge Not Required To Participate: The decision of a judge to participate in Cobbs evaluations is completely voluntary. For political or personal reasons, a judge can refuse to participate and this refusal does not create a basis for disqualification.
  • Judge Not Bound By Cobbs Evaluation: Sometimes, defense attorneys and other members of the public might refer to this evaluation as a " Cobbs agreement", but that is misleading. The judge is not bound to an "agreement" with the defendant and he or she is free to pass any lawful sentence deemed necessary at the sentencing hearing. The burden is on the defendant to make a motion to withdraw his or her plea if the sentence exceeds the Cobbs evaluation.
  • Judge Must Put Cobbs Evaluation On Record: The Cobbs evaluation may be conducted in chambers with the defense attorney and prosecutor present or may be conducted on the record (the judge's choice). Either way, the preliminary evaluation of sentence will be placed on the record prior to the entry of a plea. The defendant may decide to enter the plea then and there, set the matter for trial, or request an adjournment to consider his or her options. However, it is up to the judge for how long the preliminary evaluation of sentence will remain on the table. Nothing prevents the judge for setting a deadline for the Cobbs evaluation before setting the matter for trial.

Any good criminal defense lawyer should be aware of the Cobbs evaluation, but whether it is appropriate depends on the individual facts and circumstances of the case. If you have questions about Cobbs evaluations, or you or a loved one is in need of a zealous criminal defense, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.

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