COURT FOR THE COUNTY OF 
| Chapter 17: Plea Agreements |
17-1 Unfulfilled Plea Bargains
If a defendant's plea is induced by a promise made by the prosecution and the promise is unfulfilled, the defendant has the right to withdraw the plea, or to specific performance of the bargain. Santobello v New York, 404 US 257; 92 SCt 495; 30 LEd2d 427 (1971); People v Brooks, 396 Mich 118 (1976). The remedy is left to the discretion of the trial judge; however, the defendant's preference is accorded considerable weight. People v Christian, 68 Mich App 480 (1976); People v Peters, 128 Mich App 292 (1983). Specific performance was ordered in the following cases: People v Stevens, 45 Mich App 689 (1973); People v Forney, 88 Mich App 5 (1979); People v Dixon, 103 Mich App 518 (1981); People v Jennings, 178 Mich App 334 (1989); People v Nixten, 183 Mich App 95 (1988); and Cooper v US, 594 F2d 12 (CA4, 1979).
When a trial court determines that it can't follow a bargained-for sentence recommendation, it must explain to the defendant that the recommendation is not acceptable, state the sentence that it finds appropriate, and offer the defendant the opportunity to withdraw his or her plea. People v Killebrew, 416 Mich 189 (1982). The trial court may, upon the request of a party, place on the record a preliminary evaluation of an appropriate sentence. If the judge later determines that the appropriate sentence should be higher, the defendant must be allowed to withdraw his or her plea. People v Cobbs, 443 Mich 276 (1993); People v Chappell, 223 Mich App 337 (1997). Final acceptance of a sentence agreement must await consideration of the presentence report. People v Baker, 215 Mich App 606 (1996). Where the court determines that a sentence below that agreed to is appropriate, it must offer the prosecutor the opportunity to withdraw from the bargain. People v Siebert, 450 Mich 500 (1995).
COURT FOR THE COUNTY OF
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
No. 
vs Hon. 
,
Defendant.
___________________________________/
The Defendant, 
, by 
attorney, moves this Court to order specific performance
of 
plea agreement for the following reasons:
1. On 
, 
was charged with 
. 
was subsequently bound over on those
charges.
2. On 
, 
was arraigned on those charges.
3. On that date, the Court conducted an in-chambers conference with defense counsel, 
, the prosecutor,
, and
.
4. During the in-chambers pretrial conference, defense counsel advised that 
client was willing to enter
pleas of guilty in exchange for the trial court's agreement to sentence 
to
5. In evaluating this request, all parties were fully informed of the facts of the case, 
background and criminal history, and other relevant matters.
6. Upon completion of the conference, the Court agreed to sentence 
to
.
7. 
then entered 
pleas of guilty.
8. In reliance upon the bargain made with the Court, 
entered into a Consent Judgment in
the companion forfeiture action. In so doing, 
made admissions regarding 
culpability in the instant offense.
9. On 
, 
appeared for sentencing.
11. A breach of a plea bargain, whether by the court or by the prosecutor, violates due process of law and requires a remedy. Santobello v New York, 404 US 257; 92 SCt 495, 30 LEd2d 427 (1971); Guilty Plea Cases, 395 Mich 96, 127 (1975), cert den, 429 US 1108 (1977). US Const, Ams. V, XIV; Const. 1963, art. 1, §17. The court must either vacate the plea, or order specific performance, and the defendant's choice of remedy is given considerable weight. People v Christian, 68 Mich App 480 (1976); People v Peters, 128 Mich App 292 (1983).
12. Where a trial judge has participated in a sentencing agreement, the remedy of specific performance is appropriate. People v Jennings, 178 Mich App 334 (1989); People v Dixon, 103 Mich App 518 (1981); People v Stevens, 45 Mich App 689 (1973).
13. Where a defendant has relied to 
detriment on a plea agreement, specific performance is the
appropriate remedy. People v Reagan, 395 Mich 306 (1975).
For these reasons, 
requests that this Court grant 
motion for specific
performance of the plea agreement.
Respectfully submitted,
Attorney for Defendant