Plea Hearing
When you have decided to accept a plea offer, the case will be scheduled for a plea hearing.
Below are some common questions and answers regarding the plea hearing. If you have specific questions regarding your case, you should always feel free to consult your Blanchard Law attorney.
It depends. Sometimes, the plea hearing happens on the same day that you decide to accept a plea offer, such as at a pretrial conference or status conference. Sometimes, a plea hearing is scheduled for a different date, days or weeks later.
At the plea hearing, you will go in front of the judge in the courtroom, with your lawyer present. If there is a plea agreement, the agreement will be recited to the judge on the record. (On the record means that a recording is being made of everything said at the hearing.) After the plea agreement is placed on the record, the judge will inquire whether you believe that what was placed on the record is the entire plea agreement.
The judge will go on to explain the name of the offense to which you are pleading, and the possible penalties for that offense.
The judge will also explain that if you plead guilty or no contest to that offense, you will not have a trial of any kind, and will give up your rights associated with a trial. Those rights include:
- To be tried by a jury;
- To be presumed innocent until proved guilty;
- To have the prosecutor prove beyond a reasonable doubt that you are guilty;
- To have the witnesses against you appear at trial;
- To question the witnesses against you;
- To have the court order any witnesses you have for your defense to appear at the trial;
- To remain silent during the trial;
- To not have that silence used against you at the trial;
- To testify at the trial if you want to testify.
The judge will either explain all of those rights to you, or, the judge will ask if you previously read and signed a form called the “Advice of Rights,” and whether you understand that by pleading guilty or no contest that you are giving up the rights listed on that form. The advice of rights form is generally completed and signed at the time of the arraignment, which may have been months earlier. Sometimes, your lawyer will have you sign a new advice of rights form on the date of the plea.
The judge will then ask you questions designed to ensure that there were no other promises or threats made that have caused you to enter the plea, other than those previously disclosed when the plea agreement was placed on the record. The judge will question you to determine that it is your own choice to enter the plea.
The judge is also required to advise you, either on the advice of rights form that you completed and signed, or on the record, that any appeal taken from the conviction and sentence based on the plea will be by application for leave to appeal and not by an appeal of right. In cases where someone is convicted at a trial, there is an automatic right to appeal. If you want to file an appeal in a case where there was a plea instead of a trial, you do not have an automatic right to an appeal, and have to get permission from the higher court to file the appeal.
If you have made a sentence agreement with the prosecuting attorney, the judge is required to advise you that he or she is not bound to follow that sentence agreement. However, if the judge does not follow the sentence agreement, you will have the option to withdraw your plea agreement and proceed to trial on the original charges.
The judge will ask you what your plea is to the offense. You will either plead guilty or no contest, depending on the facts of your case.
If you enter a guilty plea, the judge will ask you questions to establish a factual basis for the offense, to ensure that you actually committed the offense to which you are pleading. For example, the judge may ask you about the date of the offense, the location of the offense, and what actions you took to be guilty of the offense to which you are pleading.
If you enter a no contest plea, the judge will look at documentary evidence, such as the police report, in order to establish a factual basis for the plea, and will not ask you questions regarding the facts of the offense.
At the end of the plea hearing, if the judge is able to establish the factual basis and is satisfied that your plea is understanding, voluntary, and accurate, he or she will accept your plea. At that point, in a misdemeanor case, the judge will either impose sentence at that time, or send you to speak with the probation department so that a presentence investigation report may be prepared for sentencing on a later date. In a felony case, the judge will have you meet with the Michigan Department of Corrections in order for a presentence investigation report to be prepared for sentencing on a later date.
A no contest plea is a plea where you do not provide the factual basis for the offense, and therefore don’t admit wrongdoing in open court. The factual basis for the offense is provided by allegations made in evidence presented to the court through something like a police report.
A no contest plea is treated by the court exactly the same as a guilty plea. You are still subject to the same penalties as if you entered a plea of guilty.
There are limited circumstances in which you can enter a plea of no contest. You can’t enter a plea of no contest simply because you don’t want to admit to an offense in open court. No contest pleas can sometimes be entered in cases where you do not have an independent memory of the offense due to injury or intoxication. They may also sometimes be entered where you might also be subject to civil liability (i.e. you may be sued for money) for the offense, or are subject to further criminal liability for the offense in another jurisdiction.
In misdemeanor cases, it is rare for a person’s bond to be revoked on the date of the plea. Most of the time, if sentencing occurs on a different date from the plea, you will not go to jail on the plea date.
In felony cases, it often depends on the offense to which you are pleading and the judge before whom you are appearing. In some cases, (for example, sex crimes) the judge is required to revoke bond on the date that the plea is entered, and you will go to jail. In other cases, the judge is not required to revoke bond at the time of the plea, but does have the option to do so if they feel it is appropriate.