There are several ways that a criminal case can resolve itself in Michigan. A defendant may elect to plead not guilty and try the case before a judge or jury to verdict. A defendant may elect to plead guilty and tell the court what happened so that the plea agreement with the prosecutor is carried out. A defendant may even elect to plead “no contest”, meaning that he or she does not challenge the accusations asserted by the prosecutor but does not confess to the court why he or she is guilty. While everyone has heard of a no contest plea, the practical effect is often misunderstood.
First and foremost, the no-contest plea has the exact same effect as a guilty plea. “At the arraignment of any person upon an indictment or upon the charge in a warrant, complaint or information the court may accept a plea of nolo contendere and if such a plea is accepted, the court shall proceed as if he had pleaded guilty.” MCL 767.37.
A no-contest plea is a plea that leads to a finding of guilt, so the court must satisfy certain requirements and advise the defendant of the consequences of such a plea. In addition, the court must obtain a factual basis for the no-contest plea since the defendant will not be stating his reasons for being guilty on the record. In that respect, the no-contest plea taking process looks very similar to a guilty plea taking process and the court must satisfy all of the following requirements:
- THE NO-CONTEST PLEA MUST BE AN UNDERSTANDING PLEA (MCR 6.302(B)) – The court must advise the defendant of the following and determine that he or she understands:
- (1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;
- (2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b (for Criminal Sexual Conduct – First Degree) or 750.520c (for Criminal Sexual Conduct – Second Degree;
- (3) if the plea is accepted, the defendant will not have a trial of any kind, and so gives up the rights the defendant would have at a trial, including the right:
- (a) to be tried by a jury;
- (b) to be presumed innocent until proved guilty;
- (c) to have the prosecutor prove beyond a reasonable doubt that the defendant is guilty;
- (d) to have the witnesses against the defendant appear at the trial;
- (e) to question the witnesses against the defendant;
- (f) to have the court order any witnesses the defendant has for the defense to appear at the trial;
- (g) to remain silent during the trial;
- (h) to not have that silence used against the defendant; and
- (i) to testify at the trial if the defendant wants to testify.
- (4) if the plea is accepted, the defendant will be giving up any claim that the plea was the result of promises or threats that were not disclosed to the court at the plea proceeding, or that it was not the defendant’s own choice to enter the plea;
- (5) if the plea is accepted, the defendant may be giving up the right to appeal issues that would otherwise be appealable if she or he were convicted at trial. Further, any appeal from the conviction and sentence pursuant to the plea will be by application for leave to appeal and not by right;
- THE NO-CONTEST PLEA MUST BE A VOLUNTARY PLEA (MCR 6.302(C)) – The court must inquire of the defendant whether the no-contest plea is being made freely and voluntarily:
- (1) The court must ask the prosecutor and the defendant’s lawyer whether they have made a plea agreement. If they have made a plea agreement, which may include an agreement to a sentence to a specific term or within a specific range, the agreement must be stated on the record or reduced to writing and signed by the parties.
- (2) If there is a plea agreement, the court must ask the prosecutor or the defendant’s lawyer what the terms of the agreement are and confirm the terms of the agreement with the other lawyer and the defendant.
- (3) The court must ask the defendant:
- (a) (if there is no plea agreement) whether anyone has promised the defendant anything, or (if there is a plea agreement) whether anyone has promised anything beyond what is in the plea agreement; and
- (b) whether anyone has threatened the defendant; and
- (c) whether it is the defendant’s own choice to plead no contest.
- THE NO-CONTEST PLEA MUST BE AN ACCURATE PLEA (MCR 6.302(D)) – If the defendant pleads nolo contendere, the court may not question the defendant about participation in the crime. The court must:
- (1) state why a plea of nolo contendere is appropriate; and
- (2) hold a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.
The court must make a determination why a no-contest plea is appropriate. Some of the justified circumstances accepted by courts in Michigan include, but are not limited to:
- The reluctance of the defendant to relate the details of a particular horrific crime to the court (e.g. sexual assault on a child).
- The defendant’s lack of recollection is unclear because he or she was intoxicated or committed so many other similar crimes that he or she cannot differentiate one from the other.
- The defendant is minimizing other repercussions such as potential civil liability (e.g. wrongful death lawsuit).
The courts, however, will NOT accept a no-contest plea if the defendant’s intention is to maintain his innocence while accepting the benefits of a plea bargain, or that the defendant’s purpose is to expediate the proceedings to “get out of jail faster.” Michigan does not recognize a version of the federally permissible Alford plea, where a defendant can accept a plea bargain but can still maintain innocence. Even in a no-contest situation, a defendant asserting he committed no crime is inconsistent with the court accepting a plea that will lead to a finding of guilt.
The court must also hold a hearing that establishes support for the fact that the defendant is guilty. Since the source will not be the defendant, then the court must obtain this information from other evidence such as police reports, preliminary exam transcripts or even witness testimony. However, these additional sources of information may lead to the judge receiving “nasty facts” that the defendant did not intend for the court to consider at sentencing, so the defense attorney should carefully evaluate what factual bases might be received.
The no-contest plea may have the benefit of avoiding the defendant making direct admissions on the record that can be used against him or her in a civil suit filed in a different court. However, the no-contest plea might create some unintended drawbacks for sentencing purposes. First, the court can consider the defendant’s remorse in fashioning a proportional sentence, so the reluctance to provide any statements to the court can be construed as a lack of remorse. Second, the no-contest plea may limit the availability of certain favorable outcomes. For example, a defendant cannot take advantage of the Holmes Youthful Trainee Act (for young people to avoid conviction) unless the defendant pleads guilty. MCL 762.11(1). These drawbacks are unique to each situation and should be considered carefully.
A no-contest plea is appropriate under the right circumstances, but anyone accused of a crime should have all the correct information before going forward. An experienced criminal defense attorney can evaluate your case and inform you of the best way to proceed. Perhaps you have a strong case to obtain an acquittal at a jury trial or there is another outcome that does not result in conviction. If you or a loved one is charged with a crime and need legal representation, then do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC for assistance today.