As a Michigan Criminal Defense attorney concentrating on defending those accused of Assault crimes, I am often asked "What is a Cobbs agreement?" This article will answer that question and more. If you are facing a criminal charge in Michigan, whether it's a simple Assault and Battery or a serious charge of Criminal Sexual Conduct, one of perhaps the toughest decisions in your life awaits you: whether to take a plea deal or take your case to Trial. Generally, the charges aren't going away, and those are your only two options. Going to Trial always has risks, but if you're considering taking a plea deal, one of the biggest fears is "What will happen to me at Sentencing? What will my sentence be? What if I plead guilty to something and they throw me in Jail or Prison?" The moment you give a plea of guilty to a criminal offense, you are "convicted," (unless you're receiving a deferral such as MCL 769.4a for Domestic Violence cases or the Holmes Youthful Trainee Act (HYTA) MCL 762.11 for those between 17 and 21). Once you are "convicted," you'll soon face Sentencing, and the Judge can sentence you to anything within the limits of the law. Wouldn't it be great if you knew what the sentence would be before you give a plea, instead of risking it all and hoping for the best? That's exactly what a Cobbs Agreement (correctly called a "Cobbs Evaluation") does. Cobbs are unique to Michigan, and the name comes from a case called People v. Cobbs, 443 Mich 276 (1993), and it is one of two ways to protect yourself if you plead and then the Judge wants to impose a harsher than expected sentence [the other is a Sentence agreement between the Defense and Prosecution, allowed by a different case called People v. Killebrew, 416 Mich 189 (1992)]. Here is exactly how a Cobbs Agreement works in Court... Let's say you're charged with First Degree Criminal Sexual Conduct, with a maximum penalty of up to LIFE in Prison. Your Criminal Defense attorney tells you that your Sentencing Guidelines are from 42 months to 70 months in Prison, meaning the Judge can generally pick any number in that range, and that would be your first Parole hearing. Not sounding too good, but there are some good facts that could lead you to be found NOT GUILTY at Trial (i.e. your accuser delayed reporting, was intoxicated, etc.), so the Prosecutor is offering to drop the charge down to Third Degree Criminal Sexual Conduct, which brings your overall Guidelines down. But what if you take the deal and the Judge still decides to put you in Prison for a very long time? That's where the Cobbs Agreement comes into play. At one of the Court hearings, such as a Probable Cause Conference, Preliminary Exam, Pretrial Conference or Settlement Conference, your lawyer will say on-record "Your Honor, may we approach for a Cobbs Evaluation?" (Some Judges also call them a "Cobbs Impression," etc.) Not all Judges are willing to give Cobbs Agreements (or if they do, not in every case), but assuming they do, the Defense attorney and Prosecutor approach the Judge's bench and discuss the nature of the charges, the evidence, the Sentencing Guidelines, your criminal history, if any, and the plea offer, if any. The Prosecution briefly points out some of the "strengths" of their case, and your lawyer points out some of the weaknesses. Based on this information, the Judge will tell the attorneys, at the bench, what he or she would likely sentence you to. This is called a "preliminary evaluation of sentence," and that's why it's actually called a Cobbs evaluation. Next, your Criminal Defense attorney and Prosecutor will go back on record, and the Cobbs will be placed on the record. This means your attorney will say "Your Honor, thank you for the opportunity to receive a Cobbs evaluation. As we discussed at the bench, if my client were to accept the plea offer of Third Degree Criminal Sexual Conduct, you have stated that your anticipated sentence would be [XYZ]." Then, you can either accept the plea deal right there under the Cobbs agreement, or you can request an adjournment to consider this new and life-altering information. But here's what most people don't understand about Cobbs agreements in Michigan - they're not "agreements" at all. The Judge doesn't have to follow it at Sentencing and they can still sentence you to anything within the limits of the law. In between the time of giving a plea and the day of Sentencing, other information that the Judge was unaware of about the case, the evidence, your criminal history, etc. can surface in the Presentence Investigation Report (PSI) that can change the Judge's opinion. At Sentencing, a powerful Victim Impact Statement can persuade the Judge to increase the sentence. For this reason, it takes a skilled Criminal Defense attorney to prevent this from happening to your Cobbs agreement. So what's the point? Well, luckily, most Judges do follow the Cobbs agreement because they know it promotes efficiency in resolving cases. But even if they don't,the whole point behind the Cobbs is that you are protecting your right to withdraw the plea and go to Trial if the Judge decides that you must be sentenced more harshly than what the Cobbs agreement provided for. Without a Cobbs agreement, if the sentence comes out more harsh than expected, you're stuck with it, and yo begin serving it immediately. Let me say it again: a Cobbs agreement in Michigan is about preserving your right to go to Trial even after you give a plea. If you are thinking about asking the Judge for a Cobbs evaluation/agreement, or if you are considering taking a plea with a Cobbs agreement, here are some fast facts that you must be aware of:Not every Judge will give a Cobbs agreement on every case, and some don't offer them at all. There is nothing in Michigan law that requires a Judge to engage in this practice; it is completely voluntary. Although they are not required to give them, if they do give them, there is no restriction on what types of cases they can be given on (other than cases with mandatory sentence provisions under Michigan law). It is possible to get a Cobbs agreement on almost any type of criminal charge.
When a Judge gives a Cobbs agreement, it most likely will not address every aspect of your sentence. In-fact, they are often very general, and only address the major issues such as no Jail or Prison (or length of any Jail or Prison time), the length of Probation, and whether or not the Judge will allow any available deferral programs, such as 769.4a, HYTA, or "7411" for controlled substance cases.
Sometimes, the Judge's only Cobbs agreement they're wiling to make is "I'll sentence you within the Guidelines," which is of little value in dealing with the fear and uncertainty.
Less significant issues such as other terms of Probation and fines and costs are usually determined at Sentencing and based upon the arguments of your lawyer and the recommendation of the Probation Department in their Presentence Investigation Report. If you want to negotiate these terms, to the extent that is possible, it usually must be done through a Sentence Agreement with the Prosecutor.
As mentioned, if you receive a Cobbs agreement and the Judge changes their mind at Sentencing, your lawyer must snap into action and know what they're doing. You have a RIGHT to move to withdraw your plea and go to Trial, and under law, the Judge MUST tell you what he or she intends to sentence you to if you decide to stick with your plea anyway.
If you cannot immediately decide, your Criminal Defense attorney must be vigilant enough to ask for the case to be recalled or the Sentencing to be adjourned to another date in order to: verify the "new" information and find possible challenges to it; and advise you and allow you to consider the new proposed sentence under circumstances where you can actually think. An expert Criminal Defense lawyer does NOT put their clients in the predicament of making life-altering decisions under the pressure of the moment.
If the Judge changes their mind and renege on the Cobbs agreement, and if you withdraw your plea, you'll most likely go to Trial on ALL the original charges; the decision to withdraw the plea is really a decision involving the chance of success at Trial on all of the charges you were originally facing. In other words, any reduced charge you got as part of a deal is out the window.