People v. Cobbs

• Decision Date: 17 August 1993
• Docket Number: No. 1,J,Docket No. 91356,1
• Citation: 443 Mich. 276,505 N.W.2d 208
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Louis COBBS, Defendant-Appellant. an. Term. Calendar
• Court: Michigan Supreme Court

Page 208

505 N.W.2d 208

443 Mich. 276

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.James Louis COBBS, Defendant-Appellant.

Docket No. 91356, Jan. Term.

Calendar No. 1.

Supreme Court of Michigan.

Argued Jan. 12, 1993.

Decided Aug. 17, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., Robert E. Weiss, Pros.Atty., and Donald A. Kuebler, Chief, Appellate Div., Flint, for the People.

State Appellate Defender by Sheila N. Robertson, Lansing, for defendant-appellant.

Patrick Shannon, President, John D. O'Hair, Pros.Atty., and Timothy A. Baughman, Chief of Research, Training and Appeals, Sault Ste. Marie, amicus curiae, for Prosecuting Attorneys Association of Michigan.

Roman S. Gribbs, Barry L. Howard, and Julie L. Doll, Pontiac, amicus curiae, for Michigan Judges Ass'n.

James Krogsrud, Detroit, amicus curiae, for Criminal Defense Attys. of Michigan.

OPINION

PER CURIAM.

The Court of Appeals reversed this defendant's conviction on the ground that the trial judge improperly participated in the formulation of a sentence agreement.We believe that the trial judge did not err, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

I

This case arises from an incident that occurred on Father's Day in 1989.The defendant wished to see his daughter, and was frustrated by the refusal of the child's mother to permit a visit.To pressure the mother into allowing a visit, the defendant abducted her older daughter.He held the girl hostage for approximately two hours, at times holding a knife to her neck.The defendant surrendered after the police persuaded him to release the victim.

The defendant was charged with kidnapping and assault with a dangerous weapon.M.C.L. § 750.349, 750.82;M.S.A. § 28.581, 28.277.

A Walker ¹ hearing introduced the trial judge to the facts of this matter.Approximately a month later, the defendant pleaded guilty, as charged.The proceeding began with the following statement from the trial judge:

"Okay.People versus James Louis Cobbs.This case is a case in which there are two counts, Count One, Kidnapping, and Count Two, Assault With a Dangerous Weapon.

"My understanding is that essentially the case arises out of a domestic dispute when Mr. Cobbs, the father of the young girl, wanted some visitation with his children and had problems with the mother of the children, and utilized one of the children, a girl of ten, I think, something like that, ... as a hostage, with a knife, threatening with the knife when the police came and so on, and there's even a video tape of it I understand that pretty much established the crime of felonious assault.

"He has no previous record and we have a situation in the Prosecutor's Office where they probably not only want him to plead guilty to everything he's charged with, but would like to have him nailed to the cross, too: and so, because of the lack of any sensible plea bargaining down there, I've indicated today that if he wants to plead guilty as charged, with or without the prosecutor's consent, I'll let him have an understanding that the maximum term would not be more than five years for the kidnapping and that's all it could be, anyway, for the felonious assault, which means he could be sent to prison, if he is sent to prison, for as much as three years and four months to five years, because the minimum term can't be more than two-thirds of the maximum term; and although there is really no plea bargain between the prosecutor and the defendant, the plea would be on that understanding."

The assistant prosecutor immediately objected that he had not been a party to any negotiations.He further objected that the proposed sentences were "a small price to pay" in light of the trauma suffered by the victim.

Accepting the defendant's pleas, the circuit judge stated:

"Okay.I have not agreed upon the possibility of a plea or the possible sentence with the prosecutor or the defendant or anyone acting in the interests of either, except to the extent that I put on the record today, my suggestion that apparently was agreed to, because it seemed to me--ah--to everybody's advantage and considering the number of cases that have to be tried, a sensible way to resolve this case.It's a shame and it's--ah--sending him to life in prison isn't gonna solve the problem."

Several weeks later, the circuit judge sentenced the defendant in accordance with his earlier remarks.He imposed a sentence of from 40 to 60 months in prison for kidnapping, and from 32 to 48 months in prison for assault with a dangerous weapon.He explained:

"Okay.Now, it's my turn.This is a case where probably it's as terrorizing and serious of assault with a dangerous weapon, a knife, as I've ever had contact with.It involved an assault on a child, an innocent child, and although I'm confident that not only did you not hurt her with a knife, you would not have hurt her, but it was a terribly traumatic experience for her and she is apparently undergoing counseling to overcome the fear that that experience caused.It all arose out of a Father's Day when you wanted to see a child of yours by the mother of this child and you were not allowed to.Things got out of hand.Technically, you held the child as a hostage against her will and from that standpoint you're technically guilty of kidnapping, but there's kidnapping and there's kidnapping, and it's really questionable whether you should have been charged with kidnapping, where in a family fight you take a child, although you commit a felonious assault certainly, to try to get an opportunity to see your child on Father's Day.But, whether that's--my view of that is right or wrong, I have to sentence you for kidnapping and for felonious assault.

"I did, however, engage in a plea agreement that the sentence for the kidnapping would not be more than a maximum of five years.In the circumstances, I think I should impose the most serious sentence I can impose consistent with the promise to you that the maximum would not be more than five years, because of the apparent psychological damage done to the child and the severe nature of the assault."²

On appeal, the prosecutor argued that the trial judge's actions violated the principles stated in People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834(1982).Agreeing, the Court of Appeals remanded the case for resentencing before a different judge.³188 Mich.App. 324, 469 N.W.2d 47(1991).

We granted the defendant's application for leave to appeal, and directed the parties to argue whether we should "reconsider the prohibition against judicial involvement in sentence bargaining as announced in People v. Killebrew...."439 Mich. 1000, 484 N.W.2d 661(1992).

II

Our decision in Killebrew reflected a balance between two conflicting considerations.First, judicial involvement must be limited in order "to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice."Id., 416 Mich. at 202, 330 N.W.2d 834.

The coercive potential of judicial involvement is obvious, and stems from the overwhelmingly advantageous bargaining position of the judge.Equally important is the fact that "[t]he public perception of the judge as a neutral arbiter must suffer when the judge descends from the bench to barter with the defendant and prosecutor over the terms of the deal he advocates."Id. at 204, 330 N.W.2d 834.

The countervailing consideration is that, in the end, the judge must impose a sentence.The Legislature has provided substantial sentencing discretion to the judiciary, and the judge may not abdicate this function by allowing sentence agreements to control the sentencing process.

In light of these considerations, we concluded in Killebrew that the judge may not initiate or participate in discussions regarding the sentence that is to be imposed.Rather, "the judge's role in plea negotiations, sentence bargaining included, is limited to consideration of the bargain between the defendant and the prosecutor.The judge may not become involved in the negotiation of the bargain."Id., 416 Mich. at 194, 330 N.W.2d 834.We explained:

"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, 330 N.W.2d 834.

Killebrew permitted a judge to approve or reject a sentence agreement reached by the parties, or a prosecutorial sentence recommendation that was the product of negotiations between the parties.In requiring a judge who rejects a prosecutorial sentencing recommendation to state the sentence that would have been appropriate, this Court also acknowledged the practical impossibility of precluding all judicial involvement in the negotiation process.

III

A decade has passed since we decided Killebrew, and we are satisfied that the principles stated in our 1982 opinion remain sound.However, we are now persuaded that the rules governing judicial participation in sentence discussions should be modified.⁴

In addition to the procedures approved in Killebrew, 416 Mich. at 206-212, 330 N.W.2d 834, we today recognize an additional manner in which a judge may participate in sentence discussions.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...