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Citations:

Bluebook 21st ed.

Holly L. Nickerson, Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date, 75 U. DET. MERCY L. REV. 741 (1998).

ALWD 7th ed.

Holly L. Nickerson, Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date, 75 U. Det. Mercy L. Rev. 741 (1998).

APA 7th ed.

Nickerson, H. L. (1998). Criminal law plea bargaining a trial judge is authorized to
reject an underlying guilty plea based upon concerns of fairness and justice as to
sentencing discrepancies involved in sentence recommendation or because it is
presented after the plea cutoff date. University of Detroit Mercy Law Review, 75(4),
741-760.

Chicago 17th ed.

Holly L. Nickerson, "Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date," University of Detroit Mercy Law Review 75, no.
4 (Summer 1998): 741-760

McGill Guide 9th ed.

Holly L. Nickerson, "Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date" (1998) 75:4 U Det Mercy L Rev 741.

AGLC 4th ed.

Holly L. Nickerson, 'Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date' (1998) 75(4) University of Detroit Mercy Law
Review 741

MLA 9th ed.

Nickerson, Holly L. "Criminal Law - Plea Bargaining - A Trial Judge is Authorized to
Reject an Underlying Guilty Plea based upon Concerns of Fairness and Justice as to
Sentencing Discrepancies involved in a Sentence Recommendation or because It Is
Presented after the Plea Cutoff Date." University of Detroit Mercy Law Review, vol.
75, no. 4, Summer 1998, pp. 741-760. HeinOnline.

OSCOLA 4th ed.

CRIMINAL LAW - PLEA BARGAINING - A TRIAL JUDGE IS
AUTHORIZFD To REJECT AN UNDERLYING GUILTY PLEA BASED UPON
CONCERNS OF FAIRNESS AND JUSTICE As To SENTENCING
DISCREPANCIES INVOLVED IN A SENTENCE RECOMMENDATION OR
BECAUSE IT IS PRESENTED AFTER THE PLEA CUTOFF DATE. People v.
Grove, 566 N.W.2d 547 (Mich. 1997).

I. INTRODUCTION

A. People v. Grove
On March 1, 1991, defendant Grove was arrested by the Michi-
gan State Police regarding allegations of criminal sexual conduct in-
volving his daughter. In Delta County, Grove was charged with two
counts of first-degree criminal sexual conduct (CSC I),2 felonies i.,th
maximum sentences of life or any term of years, and one count of
second-degree criminal sexual conduct (CSC II),' a felony with a
maximum sentence of fifteen years imprisonment.4 Defendant's then
fifteen-year-old daughter was under the age of thirteen at the time of
the conduct for which defendant was charged.'

1. People v. Grove, 566 N.W.2d 547, 549-50 (Mich. 1997) (consolidated with
People v. Austin).
2. MICH. CoMp. LAWS ANN. § 750.520b(1) (a) (West 1991).
3. MICH. CoMP. LAWs ANN. § 750.520c(1) (a) (West 1991).
4. Grove, 566 N.W.2d at 549-50.
5. Id. at 550. It was indicated that:
The victim testified at trial that she had been sexually assaulted by her fa-
ther from the time she was five or six until she was thirteen. The first inci-
dents she remembered occurred in her bedroom. Defendant would come
in at night and start "feeling up" her body. He told his daughter this was "a
secret" and not to tell anyone. He would digitally penetrate her vagina for
ten to fifteen minutes. These incidents became "common," occurring in
defendant's bedroom and the living room, so that the victim "justmore or
less thought it was normal or something." He also "put [her] mouth
around his penis" on several occasions. Leaving his pants on, he would
undo his zipper and "push on the back of [her] head and push [her] down
there." She did not tell anyone at first because she feared her father after
watching him beat her brother. (Defendant is six feet, three inches tall and
weighed 240 pounds when he was arrested). When she was accused of ly-
ing about the incidents, she initially recanted her story. However, charges
were brought when she later agreed to testify. The victim's testimony was
substantially consistent with the facts she related to the Michigan State Po-
lice when she made her original complaint.
Id. at 550 n.6.
 742 UNIVERSITY OFDETROIT MERCY LAWREVIEW [Vol. 75:741

On August 2, 1991, during the pretrial conference, the parties

informed the court that a plea agreement had been reached.7 De-
fendant would plead guilty to fourth-degree criminal sexual conduct
(CSC IV),' a misdemeanor with a maximum sentence of two years
imprisonment and a $500 fine. 9 The prosecutor would move to dis-
miss the other charges and recommend a sentence in the county jail
not to exceed one year. 0 In accordance with Michigan Court Rule
(MCR) 6.302," Judge Goebel examined the defendant in order to
make sure he understood the plea and that it was accurate, as well as
voluntary. 2 Thejudge then took the plea under advisement in order
to review the presentence investigation report and schedule sentenc-
ing.13
On October 8, 1991, the sentencing date, Judge Goebel rejected
defendant's guilty plea. 4 Judge Goebel stated that while in chambers
he ruled that "it would not be fair and in the interest ofjustice to ac-
cept this matter plea bargained to the fourth degree" and, therefore,
the matter should go to trial on the original charges.' Further, the
judge indicated that, in chambers, the prosecutor had urged him to
accept the plea bargain due to the potential difficulty in proving the
case, because the victim recanted her story once and would be sub-
ject to possible impeachment.16 Defendant's counsel objected to the
judge's refusal to accept the plea. 7 Although the prosecutor pro-
claimed his desire to go forward with the plea, he indicated that "it
would be both appropriate and ethical to try the case at the level

6. Judge Robert E. Goebel was acting on behalf of Judge Dean J. Shipman

who was on vacation. Id. at 550 n.7.
7. Id. at 550.
8. MIcH. COMP. LAWSANN. § 750.520e (West Supp. 1997).
9. Grove, 566 N.W.2d at 550.
10. Id.
11. MIcH. Cr. R. 6.302. For text, see infra note 137.
12. Grove, 566 N.W.2d at 550. In response, "[d]efendant admitted touching his
daughter's vagina when she was under the age of thirteen for the purpose of sexual
arousal on more than one occasion between 1980 and 1986." Id. at 550 n.10.
13. Id. at 550.
14. Id. Judge Goebel indicated that he had reviewed the presentence report
and that he had conducted a conference in chambers, where he informed the par-
ties that there was such a wide disparity between what the victim and defendant
claimed to have happened and that the victim had recommended defendant be sen-
tenced to prison time; yet, the cap as recommended by the prosecutor would not
allow for such. Id.
15. Id.
16. Id.
17. Grove, 566 N.W.2d at 551.
1998] CASENOTE

originally charged." 8 Lastly, the judge restated his belief that his rul-
ing was "a valid exercise of the Court's discretion." 9
On December 10 through December 12, 1992, defendant was
tried before ajury on the original charges of two counts of CSC I and2
one count of CSC II.20 He was convicted of one count of CSC ]1.1
Judge Shipman sentenced the defendant to forty months to fifteen
years imprisonment.n The court of appeals reversed defendant's
conviction and remanded with the following instructions:
On remand, we instruct the trial court to permit defendant
to plead guilty of [CSC IV] in exchange for the terms of the
parties' previous plea agreement. If the trial court elects to
reject the recommended sentence, then it must state the
sentence it finds appropriate and give defendant the oppor-
tunity to affirm or withdraw his guilty plea.u
The court of appeals based its decision on People v. Killebrew2 4 and
"the interplay between MCR 6.301 (B)2 and MCR 6.302(C) (3).26
The court stated, "[i]n short, neither Killebrew nor MCR 6.302(C) (3)
gives a trial court the discretion to reject a guilty plea underlying a
plea agreement that includes a prosecutorial sentence recommenda-
tion.
The Michigan Supreme Court reversed the court of appeals and
reinstated the trial court's conviction.u The court indicated that the
court of appeals had correctly stated the issue as "whether a trial
court is able to exercise its discretion to refuse to accept a guilty plea
underlying a plea agreement that includes a prosecutorial sentence
recommendation."2 Yet, the court held:
[U]nder Killebrew and MCR 6.302(C) (3) (a), the decision
whether to accept or reject a bargained plea, on the basis of
whether acceptance of the proffered plea presents an undue

18. Id.
19. Id. Judge Goebel did not preclude the parties from submitting the plea
agreement to Judge Shipman upon his return; however, the prosecutor did not do
so. Id.
20. Id. See supranotes 2 & 3.
21. Grove, 566 N.W.2d at 551. See supra note 3.
22. Grove, 566 N.W.2d at 551.
23. People v. Grove, 528 N.W.2d 796, 799 (Mich. Ct. App. 1995). See supra note
8.
24. 330 N.W.2d 834 (Mich. 1982).
25. MICH. Cr. R. 6.301(B). This rule provides that "[a] defendant may enter a
plea of nolo contendere only with the consent of the court." Id.
26. Grove, 528 N.W.2d at 797. MICH.Cr. R. 6.302(C) (3); for text, see infra note
137.
27. Grove, 528 N.W.2d at 798-99.
28. Grove, 566 N.W.2d at 551, 558.
29. Id. at 553 (quoting Grove, 528 N.W.2d at 797).
744 UN!VERSITY OFDETROIT MERCY LA WREVIEW [Vol. 75:741

interference with the judge's sentencing discretion, given

the facts of the individual case, is a proper exercise of the
trial court's discretion. 30

B. People v. Austin
On January 31, 1991, the Boyne City Police Department arrested
defendant Austin regarding allegations of criminal sexual conduct
involving two victims. 31 In Charlevoix County, Austin was charged
under separate warrants with two counts of CSC .32 On February 20,
1991, a third warrant was issued for a different incident charging de-
fendant with one count of CSC IV.s3 Defendant admitted grabbing
one of the victims named within the February 20, 1991 warrant!"
On March 11, 1991, the parties went before Judge Pajtas for a
scheduling conference.5 The parties discussed the length of the trial
and set the trial date forJune 25, 1991, and also agreed that May 13,
1991, was the cutoff date for any motions, or for acceptance of any
plea bargains. 6 On June 24, 1991, the day before trial, the parties

30. Id. at 556.

31. People v. Grove, 566 N.W.2d 547, 551 (Mich. 1997) (People v. Austin was
consolidated with People v. Grove). Defendant Austin was twenty-nine years old and
both the victims, defendant's baby-sitter and her friend, were thirteen year old girls.
Id. The record indicated:
[T] he victims were at the defendant's house one day in late August or early
September, 1988, in the basement with a few other teenagers and adults,
drinking wine coolers provided by the defendant. One victim was defen-
dant's baby-sitter; the other was invited over. Defendant attempted to get
one of the victims to take painkillers. After the victims were drunk, the de-
fendant took each separately into his bedroom and forced her to engage in
sexual intercourse on his bed. Neither victim revealed these rapes to adults
until August, 1990, because of fear and psychological trauma associated
with the incidents. One victim testified that the defendant had repeatedly
asked her for sex before the rapes.
Id. at 551 n.15.
32. Id. at 551. See supranote 2. The information provided that the aggravating
factor for charging at that level was the use of force or coercion. See MICH. COMP.
LAWsANN. § 750.520b(1) (f) (West 1991).
33. Grove, 566 N.W.2d at 551. See supranote 8.
34. Grove, 566 N.W.2d at 551. The record indicated:
[T]he defendant supplied alcohol to the victim and two other teenage
girls, one of whom was another one of defendant's baby-sitters, on June 8,
1990. After spending most of the night with the girls at one of their resi-
dences, defendant took two of them to another of their residences around
6:30 a.m. on June 9, 1990. Defendant began to wrestle with both, touched
them in their private areas, and bit them on their breasts.
Id. at 551 n.16.
35. Id.
36. Id. It was stated that the date "would serve as the date on which any mo-
tions would be heard and as a date beyond which 'no reduced pleas pursuant to a
plea agreement between defense and prosecution' would be accepted." Id.
1998] CASENVOTE

appeared before the court and informed the court that a plea
agreement had been reached."' In exchange for the prosecutor
agreeing to drop the original charges and agreeing not to pursue a
habitual offender charge or second offense charges,3 the defendant
would plead guilty of two counts of GSC IW 9 for the 1988 incidents
and one count of CSC IV for the 1990 incident" ° The trial judge re-
fused to accept the plea because it was presented after the plea cutoff
date.4 ' The judge indicated that the parties had two-and-a-half
months from the date of the arraignment to plea bargain the case,
which was a reasonable amount of time, and that he had heard no
persuasive reason as to why he should make an exception to the cut-
off date. 2 The judge indicated that he recognized his discretion to
make such an exception, but that he was "not persuaded by the rea-
sons set forth that it would be a proper exercise of discretion."43
On the 1988 incidents, a jury convicted defendant on the origi-
nal charges." On July 22, 1991, defendant pled guilty to being an
habitual offender, second offense, and was sentenced to two concur-
rent life terms of incarceration. 45 At this same hearing, defendant
pled guilty to the CSG IV charge from the 1990 incident and was sen-
tenced to an additional one to two years incarceration. 6
Defendant appealed on the basis that the trial court lacked the
authority to reject the plea agreement.4 The court of appeals re-
jected this argument by holding "that a trial court, in its discretion,
may reject a plea that fails to comply with any applicable court
rules.A The decision was based upon MGR 6.301 (A) ,'4 MCR
6.001 (D),0 and MCR 2.401 (B) (1) (b).5 1 The court of appeals indi-
cated that "[r]eading these rules together, it is clear that the trial

37. Id. at 551-52.

38. MICH. COMp. LAwsANN. § 769.10 (West Supp. 1997).
39. MICH. COMP. LAWs ANN.§ 750.520d(1) (West Supp. 1997).
40. Grove, 566 N.W.2d at 552. See supra note 8.
41. Grove, 566 N.W.2d at 552. The judge declared, "[a]s you know, the Court
does not participate in your plea bargaining, but I do now set a date beyond which I
will accept no negotiated pleas." Id.
42. Id.
43. Id.
44. Id. Defendant was convicted of two counts of CSC I. Id. See supranote 2.
45. Grove, 566 N.W.2d at 552.
46. Grove, 566 N.W.2d at 552. See supranote 8.
47. Grove, 566 N.W.2d at 553. Appealed issues concerning juror misconduct
and inadmissible evidence are beyond the scope of this Casenote and will not be ad-
dressed.
48. People v. Austin, 531 N.W.2d 811, 813 (Mich. Ct. App. 1995).
49. MICH. CT. R. 6.301(A). For text, see infra note 109.
50. MICH. Cr. K. 6.001(D). For text, see infranote 110.
51. Austin, 531 N.W.2d at 813. MICH. CT.R. 2.401(B) (1) (b); for text, see infra
note 111.
746 UNIVERSITY OFDETROITMERCYLAWREVEW [Vol. 75:741

court had the authority to reject a plea5that

2 was entered into after the
date set forth in the scheduling order."
The Michigan Supreme Court affirmed the court of appeals on
this particular issue." The court indicated that the court of appeals
analysis of the above court rules was correct.5 The court "[held] that
a judge is within his discretion in refusing to entertain a tardy plea
agreement..5

HI. BACKGROUND
Plea bargaining has become a bureaucratic reality that is han-
dled daily within the legal system. "[T]he Supreme Court of the
United States sanctioned its use, recognizing the pervasiveness of the
practice and the advantages of the procedure for both the defendant
and the state. " 56 In People v. Killebrew, the Michigan Supreme Court
indicated that "[b]y all estimates, the practice of plea bargaining is
even more pervasive today."57 The court indicated that one commen-
tator noted: "The criminal justice system now disposes of virtually all
cases of serious crime through plea bargaining. Depending on the
jurisdiction, as many as ninety-nine percent of all felony convictions
are by plea. This nontrial procedure has become the ordinary dis-
positive procedure of American Law." Further, "[g]iven the preva-
lence of its use, it is not surprising that the Supreme Court of the
United States has labeled plea bargaining as 'an essential component
of the administration ofjustice.'"
The Michigan Supreme Court indicated that "[o]f course,
merely because the practice is deeply entrenched does not prove its
value. " 8° However, it mentioned that the Supreme Court of the
United States "has enumerated the benefits of the procedure" as fol-
lows:
Disposition of charges after plea discussions is not only an
essential part of the process but a highly desirable one for

52. Austin, 531 N.W.2d at 813.

53. Grove, 566 N.W.2d at 553.
54. Id. at 560.
55. Id. The court stated that "[t]he rules of civil procedure apply in criminal
cases pursuant to MCR 6.001(D). Under MCR 2.401(B) (1) (b), the trial judge may
'enter a scheduling order setting time limitations for the processing of the case and
establishing dates when future actions should begin or be completed in the case.'"
Id. See infranotes 109-11.
56. People v. Killebrew, 330 N.W.2d 834, 837 (Mich. 1982) (citing Brady v.
United States, 397 U.S. 742 (1970)).
57. Killebrew, at 837.
58. Id. (quoting John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L.
REv. 3,9 (1978)).
59. Id. (quoting Santobello v. NewYork, 404 U.S. 257, 260 (1971)).
60. Id.
1998] CASENOTE

many reasons. It leads to prompt and largely final disposi-

tion of most criminal cases; it avoids much of the corrosive
impact of enforced idleness during pretrial confinement for
those who are denied release pending trial; it protects the
public from those accused persons who are prone to con-
tinue criminal conduct even while on pretrial release; and,
by shortening the time between charge and disposition, it
enhances whatever may be the rehabilitative prospects of
the guilty when they are ultimately imprisoned.
The Michigan Supreme Court indicated that "[t]hus, we begin
with the premise that the general practice of plea bargaining with-
stands constitutional scrutiny62 and offers significant benefits to both
the defendant and the state."

A. Types of PleaBargaining
In general, plea bargaining is the process by which a person who
is charged with a crime agrees to plead guilty to a lesser offense in
exchange for a lighter sentence, a reduction of charges, or other
benefits. In particular, "[c]harge bargaining, a species of plea bar-
gaining, has... been specifically approved by the Supreme Court of
the United States61... and its practice is well established in Michi-
gan."" Charge bargaining takes place when the prosecutor reduces
the level or eliminates counts against the defendant in exchange for
a guilty plea to the reduced charges.6 For example, reduction of a
felony charge to a misdemeanor is a common practice. This helps
the defendant avoid a record conviction to a charge that carries a so-
cial stigma. 67 According to Killebrew, because "generally, the defen-
dant has little interest in the titie of his crime, the prosecuting attor-
ney's bargaining power is his ability to circumscribe the judge's

61. Id. (quoting Santobello, 404 U.S. at 261); see also Brady, 397 U.S. at 752.
62. Killebrew, 330 N.W.2d at 837.
63. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
64. Killebrew, 330 N.W.2d at 837-38 (citing Genesee Prosecutor v. Genesee Cir-
cuitJudge, 194 N.W.2d 693 (Mich. 1972)).
65. John F. Padgett, Plea Bargaining and Prohibition in the Federal Courts, 1908-
1934, 24 L. & Soc'YREv. 413, 416 (1990). According to Killebrew, "[tihe prosecuting
attorney may agree with the defendant to bring reduced charges or to dismiss cer-
tain charges or cases altogether." Killebrew, 330 N.W.2d at 838. In addition, "the
prosecutor may file a supplemental information charging the defendant as an habit-
ual offender." Id. Bordenkircher,434 U.S. 357 (1978), "[held] that due process is not
violated when a prosecutor carries out a threat made during plea negotiations to
charge a defendant with more serious offenses if he does not plead guilty to the of-
fense originally charged." Id. at 359 n.2.
66. LAWRENCE BAUM, AiE~ascAN COURTS 188 (1994).
67. ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 166 (2nd
ed. 1993).
748 UNIERTSITY OFDETROITMBERCYLAWREVIEW [Vol. 75:741

sentencing discretion by locking defendant's crime into a lower sen-

tencing range."
In Killebrew, the Michigan Supreme Court also approved the use
of sentence agreements and prosecutorial sentence recommenda-
tions.69 In a sentence agreement or disposition, "[t]he prosecuting
attorney, after a conference with the defendant, may present to the
court a sentence agreement stating that the parties agree that a spe-
cifically designated sentence is the appropriate disposition of the
case." 70 With this type of plea agreement, "[t]he court may either ac-
cept or reject the agreement.' But, "if the court rejects the agree-
ment, the defendant does not enter his guilty plea." In a sentence
recommendation, "[t]he prosecuting attorney may promise the de-
fendant to recommend a specific sentence, or promise to make no
recommendation at all."M A court's authorized "reaction" to this type
of agreement is an important part of the Killebrew decision and will be
discussed below.74

B. People v. Killebrew
As mentioned above, the Michigan Supreme Court began its de-
cision in People v. Killebrew by discussing the validity of plea bargain-
7
ing, as well as the recognized forms of such bargaining in Michigan.
The decision also discussed the judicial role in "sentence bargain-
ing."76 The court declared that "[t] he trial judge's role in the plea-
bargaining procedure shall remain that of a detached and neutral
judicial official." 7
In order to assist lower courts in maintaining this "detached and
neutral" function, the court outlined the procedures that were to be

68. Killebrew, 330 N.W.2d at 838.

69. Id. at 838-39.
70. Id. at 838.
71. Id.
72. Id.
73. Id.
74. The Michigan Supreme Court indicated that it would "subsequently discuss
what [a] court's reaction to this should be." Killebrew, 330 N.W.2d at 838.
75. 330 N.W.2d 834, 837-39 (Mich. 1982).
76. Id. at 839.
77. Id. at 841. The court indicated:
In balancing these competing considerations - that the degree of in-
volvement must be kept minimal to avoid a coercive atmosphere and to re-
tain 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.
19981 CASFN07T

followed in sentence bargaining.78 The Killebrew decision discussed

the authority of a judge to reject the sentence recommendation of a
plea agreement. 9 Killebrew held that:
If the plea agreement offered to the court by the prosecutor
and defendant includes a non-binding prosecutorial rec-
ommendation of a specific sentence, the judge may accept
the guilty plea (after consideration of the presentence re-
port), yet refuse to be bound by the recommended sen-
tence. The judge retains his freedom to choose a different
sentence. However, the trial judge must explain to the de-
fendant that the recommendation was not accepted by the
court, and state a sentence that the court finds to be the ap-
propriate disposition. The court must then give the defen-
dant the opportunity to affirm or withdraw his guilty plea.80
Therefore, under Killebrew, the judge has the authority to reject
the recommendation and impose an appropriate sentence under the
charge provided in the plea agreement, but does not have the
authority to reject the underlying plea.8 ' 'As mentioned above, Kille-
brew also discussed plea bargains that rely on a specific sentence dis-
position; the court indicated that, with this type of agreement, trial
courts have the option of rejecting the underlying guilty plea or ac-
cepting the plea as is.

IIl. ANALYSIS
The issue before the Michigan Supreme Court in People v. Grove
and People v. AustiW3 was whether the trial judge had the authority to
reject the guilty plea underlying a plea agreement. Grove considered
whether the authority existed to reject an underlying guilty plea
based upon concerns of fairness and justice, resulting from the sen-
tencing variations between the original and bargained charges of a
sentence recommendation. Austin considered the authority of a
judge to reject an untimely plea because it was presented after the
plea cutoff date established within the scheduling order.

78. Id. at 841-42.

79. Id. at 842.
80. Id. at 842-43.
81. See Killebrew, 330 N.W.2d 834 (Mich. 1982).
82. Id. at 841-42. This is a very simplified description of a court's procedural
authority as applied to a sentence agreement; for a more thorough description see
id. at 841-42.
83. 566 N.W.2d 547 (Mich. 1997).
750 UNIVERSITY OFDETROITMERCYLAWREVIEW [Vol. 75:741

A. Majority Opinion

1. People v. Grove
In Grove, the plea rejection arose in the interests of justice be-
cause of the judge's concern that the plea would not be fair and be-
cause of sentencing discrepancies between the original charges and
those of the plea or sentence recommendation. The Michigan Su-
preme Court majority relied upon People v. Killebrew and MCR
6.302(C) (3) for its decision."
As discussed above, a major theme throughout the Killebrew deci-
sion was the judge's role in the plea bargaining process. 6 This had to
do with concerns about avoiding a coercive atmosphere and retain-
ing public confidence in the judicial system. 8 In Killebrew, the Michi-
gan Supreme Court held that "[t]he trial judge's role in the plea
bargaining procedure shall remain that of a detached and neutral
judicial official."88 Under past interpretation of Killebrew, it appeared
that the judge had the authority to reject the recommendation and
impose what he thought to be an appropriate sentence under the
charge provided in the plea agreement."9 The charge provided in de-
fendant Grove's plea agreement was for CSC IV, which is a misde-
meanor with a maximum sentence of two years imprisonment and a
$500 fine. 0 However, this also meant that the judge did not have the
authority to reject the underlying plea unless a specific sentence dis-
position was at issue. 9' Hence, the court of appeals interpreted Kille-
brew as denying a trial court the discretion to reject a guilty plea un-
derlying a plea agreement that includes a prosecutorial sentence
recommendation.
However, in Grove, the supreme court rejected the court of ap-
peals' conclusion by stating that "[n]othing in Killebrew suggests a
limitation on the trial court's option to reject a plea agreement in
which the agreement did not provide for a specific sentence disposi-
tion." 93 The court indicated that "neither the case nor the court rule
was intended to emasculate the judge's sentencing authority in favor
of the parties' right to enter into a plea bargain."" The court indi-

84. 330 N.W.2d 834 (Mich. 1982).

85. Grove, 566 N.W.2d at 556.
86. See suprapart II.B.
87. Killebrew, 330 N.W.2d at 841.
88. Id.
89. See id. at 842-43.
90. Grove, 566 N.W.2d at 550.
91. Killebrew, 330 N.W.2d at 841-43.
92. Grove, 528 N.W.2d at 798-99.
93. Grove, 566 N.W.2d at 555.
94. Id. The mentioned court rule is MCR 6.302(C) (3). See supranote 89.
 1998] C8ASENOTE

cated that it "recognize[d] that '[w]here charges are dismissed as

bargaining chips, the primary effect is to limit the judge's discretion
over the duration of imprisonment."'95 According to the court:
A conclusion that the judge is compelled to accept the bar-
gained plea would frustrate the compelling policy interests
at stake in that it would transfer the trial judge's sentencing
discretion to the prosecutor in cases where the plea reduc-
tion results in a substantial reduction in the potential range
of sentences and would thus erode public confidence in the
judiciary.9
The court indicated that to interpret Killebrew any differently
would be to "reduce the judge's role to one of merely providing the
court's 'rubber stamp' for the defendant's plea, regardless of the
level of imposition on the judge's sentencing discretion. " "'
As to the court rule, the Michigan Attorney General 3 argued
"that the trialjudge had the authority to reject the plea under MCR
6.302(C) (3)." Further, "[t]he Attorney General [argued] that, ac-
cording to the specific language of MCR 6.302(C) (3) (a), the trial
judge is authorized to reject the entire plea agreement, including the
underlying plea, where the plea agreement includes either a sen-
tence agreement or a sentence recommendation." 1°° The court ex-
pressed its agreement with this argument by stating:
Under the plain language of the rule, the word "agreement"
in subsection (a) refers to the phrase "plea agreement" in
subsection (3). That phrase, under the terms of subsection
(3), is defined as an agreement between the prosecutor and
the defendant wherein "the defendant's plea [is] made in
exchange for [either] a specific sentence disposition or a
prosecutorial sentence recommendation. " lol
Hence, the court declared that "the rule plainly grants trial
judges the discretion to reject the entire plea agreement, including
the underlying plea and the sentence recommendation."'0 In addi-
tion, the court indicated that "[w]ere the prosecutor and the defen-
dant able to compel the judge to accept an underlying plea in the
presence of a sentence recommendation, no matter how severe the

95. Id. (citing United States v. Pimental, 932 F.2d 1029, 1033 (2d Cir. 1991)).
96. Id.
97. Id.
98. In both Grove and Austin, Michigan Attorney General Frank J. Kelley repre-
sented the prosecution on appeal. Id. at 554 n.20.
99. Grove, 566 N.W.2d at 554; see supra note 137.
100. Grove, 566 N.W.2d at 554.
101. Id. (quoting MICH. CT. L 6.302(C) (3)).
102. I&
752 UNIVRSTY OFDETRO1TMERCYLAWR mvIW [Vol. 75:741

departure from the original charge and its sentencing framework,

the interests served by the nolle prosqui statute would be defeated."' 3
Therefore, the court concluded that the judge did not abuse his dis-
cretion in rejecting the entire plea agreement, which included the
underlying plea because the judge's actions were consistent with sec-
tion 767.29 of Michigan Compiled Laws, °' MCR 6.302(C) (3), and
Killebrew.1'5
2. People v. Austin
In Austin, the rejection of the guilty plea arose because it was
presented over a month after the plea cutoff date and one day before
trial. 1°6 This being an issue of first impression, the court discussed
how the court rules can be interpreted and also cited persuasive
authority from other jurisdictions in order to denote that the trial
court had the authority to reject the underlying plea.' 7 The court
indicated that the court of appeals' analysis of the court rules was
correct.' The court of appeals' analysis was as follows:
According to MCR 6.301 (A),1' a court may refuse to accept
a defendant's plea "pursuant to the rules." MCR 6.001 (D)

103. Id. at 556 (referring to MICH. COMP. LAws § 767.29 (1979)). See infra note
104.
104. MicH. CoMP. LAwS ANN. § 767.29 (West 1991). This statute provides:
Sec. 29. A prosecuting attorney shall not enter a nolle prosequi upon an
indictment, or discontinue or abandon the indictment, without stating on
the record the reasons for the discontinuance or abandonment and with-
out the leave of the court having jurisdiction to try the offense charged, en-
tered in its minutes. If a defendant is charged with a major controlled sub-
stance offense, in addition to the requirements of this section, the
requirements of section 7415 of the public health code, Act No. 368 of the
Public Acts of 1978, being section 333.7415 of the Michigan Compiled
Laws, shall apply upon the prosecuting attorney's motion to dismiss the
charge.
§ 767.29.
105. Grove, 566 N.W.2d at 558 (referring to People v. Killebrew, 330 N.W.2d 834
(Mich. 1982)).
106. Id.
107. Id.
108. Id. at 560.
109. MicH. CT. R. 6.301(A). The rule provides:
(A) Possible Pleas. Subject to the rules in this subchapter, a defendant may
plead not guilty, guilty, nolo contendere, guilty but mentally ill, or not
guilty by reason of insanity. If the defendant refuses to plead or stands
mute, or the court, pursuant to the rules, refuses to accept the defendant's
plea, the court must enter a not guilty plea on the record. A plea of not
guilty places in issue every material allegation in the information and per-
mits the defendant to raise any defense not otherwise waived.
Id.
110. MICH. Cr. R. 6.001(D). The rule provides:
1998] CASEN0TE

provides that the rules of civil procedure apply to criminal

cases. Further, MCR 2.401(B) (1) (b)". establishes that a
trial court may enter a scheduling order setting time limita-
tions for the processing of a case. Reading these rules to-
gether, it is clear that the trial court had the authority to re-
ject a plea that was entered into after the date set forth in
the scheduling order. MCR 2.401 (B) (1) (b)."
The court declared that "[t]aken together, these rules implicitly
confer the discretion to decline to entertain actions beyond the
agreed time frame." 3 The court declared that if "the rules were not
so construed, scheduling orders would become quickly meaning-
less." 14 Further, the court found nothing in the record to indicate
that the judge abused his discretion in reaching the decision." 5 It
declared that "[t]he defendant has only an opportunity, not a right,
to plead guilty.
' 6 No right is denied when the opportunity is not timely
exercised."
The court cited United States v. Ellis" as persuasive authority. In
Ellis, the court agreed that the district court had the discretion to ad-
here to the plea cutoff date even though the parties introduced the
plea only one day late."3 The Michigan Supreme Court stated that
"[1] ike the court in [Ellis], we find that 'the deference due the prose-
cutorial prerogative and the rights of the defendant under [the court
rules are] outweighed by the judicial discretion to control the sched-

(D) Civil Rules Applicable. The provisions of the rules of civil procedure
apply to cases governed by this chapter, except (1) as otherwise provided
by rule or statute, (2) when it dearly appears that they apply to civil actions
only, or (3) when a statute or court rule provides a like or different proce-
dure. Depositions and other discovery proceedings under subchapter 2.300
may not be taken for the purposes of discovery in cases governed by this
chapter. The provisions of MCR 2.501(C) regarding the length of notice of
trial assignment do not apply in cases governed by this chapter.
Id.
111. MICH. Cr. R. 2.401 (B) (1) (b). This rule provides:
(B) Early Scheduling Conference and Order. (1) Early Scheduling Confer-
ence. The court may direct that an early scheduling conference be held.
In addition to those considerations enumerated in subrule (C) (1), during
this conference the court should: (b) determine the complexity of a par-
ticular case and enter a scheduling order setting time limitations for the
processing of the case and establishing dates when future actions should
begin or be completed in the case.
Id.
112. Grove, 566 N.W.2d at 558.
113. Id. at 560.
114. Id.
115. Id. at 561.
116. Id.
117. United States v. Ellis, 547 F.2d 863 (5th Cir. 1977).
118. Id. at 868.
754 UNIVERSI7Y OFDETROITMERCYLAWREVIEW [Vol. 75:741

uling of trial procedures in ongoing prosecutions, plus the broad in-

terests in
11 9
docket control and effective utilization of jurors and wit-
nesses."'

B. Dissenting Opinion

1. People v. Grove
In Grove, the dissent disagreed with the majority's holding that
MCR 6.302(C) (3) and Killebrew allows the trial court the discretion to
reject the defendant's guilty plea. 20 The dissent indicated that the
issue should be "whether a trial judge has the authority to block a de-
fendant's plea to a reduced charge absent a determination that the
prosecution has abused its discretion.',12' The opinion indicated that
the case "[d]oes not concern the authority of the trial judge to reject
a plea because of disagreement with the prosecutor's sentence rec-
ommendation."'2 The dissent would have found that the trial judge
acted as a "superprosecutor" when he refused to accept the defen-
dant's underlying guilty plea and sentence recommendation despite
objections from all the parties involved.'2 Also, the judge "invaded
the province of the prosecutor, essentially dismissing the people's
new information and placing the original charges back on the trial
docket." 24 According to the dissent, the judge's actions actually vio-
lated the plea taking procedures adopted by the court rules and pro-
nounced in Killebrew and its progeny.'2 Therefore, the judge's
"[r]efusal violated the Michigan Court Rules and 1the 26
defendant's
constitutional rights, and was an abuse of discretion."
The dissenting opinion analyzed MCR 6.302 (C) (3), its commen-
tary, and Killebrew in careful detail and concluded that "the judge
failed to follow that rule and instead trumped the prosecution's
charging power." 27 It stated that "[w]hile the court rule indicates
that a trial court's consent is required with respect to the sentence, it
does not confer authority on the court to interfere with the prosecu-
tor's charging power." 2 8 The dissent also discussed well established

119. Grove, 566 N.W.2d at 559.

120. Grove, 566 N.W.2d at 564-66 (KellyJ, dissenting).
121. Id. at 566 (Kelly, J., dissenting).
122. Id.
123. Id. at 564 (KellyJ., dissenting).
124. Id. at 566 (KellyJ., dissenting).
125. Id.
126. Grove, 566 N.W.2d. at 564 (Kelly,J., dissenting).
127. Id. at 566 (KellyJ, dissenting).
128. Id.
 1998] CAA,.,NTE

precedent in Michigan that supports this line of reasoning.'2 In

Genesee Prosecutor v. Genesee Circuit Judge (Genesee Prosecutor I), the
Michigan Supreme Court held:
"Acting as a prosecutor, judge and jury" is a common de-
scription of an unfair and unlawful operation .... For the
judiciary to claim power to control the institution and con-
duct of prosecutions would be an intrusion on the power of
the executive branch of government and a violation of the
constitutional separation of powers. [] It also violates our
fundamental sense of fair play.3
Further, the court addressed this issue again in Genesee Prosecutorv.
Genesee CircuitJudge (Genesee ProsecutorHI), where it indicated that a
circuit court judge does not have supervisory power over a prosecut-
ing attorney; in other words, a judge may only revise a prosecutor's
decision if the prosecutor has "abused the power confided" to him.'3 '
The dissent indicated that the prosecutor has broad discretion
deciding what charges to bring against a defendant, and that "[a] cir-
cuit court judge may not usurp authority vested in the prosecutor to
determine what charges are brought against a defendant, except as
explicitly provided by law."1 2 This means that "Oj]udicial modifica-
tion of prosecutorial decisions is appropriate only if the decisions are
unconstitutional, illegal, ultra vires, or an abuse of prosecutorial
authority."'33 The dissent cited Genesee ProsecutorlandHas precedent
for this conclusion.134
Ultimately, the dissent held that the trial judge did not have the
authority to refuse to accept the underlying guilty plea. "[T]o rule
otherwise allows the judge to act, not only as judge, but as jury and
prosecutor as well, a practice condemned by this Court."' '3

129. Id. at 566-68 (Kelly, J., dissenting) (citing Genesee Prosecutor v. Genesee
CircuitJudge [hereinafter Genesee Prosecutorfl], 215 N.W.2d 145 (Mich. 1974); Peo-
ple ex. rel. Leonard v. Papp [hereinafter Genesee Prosecutor1], 194 N.W.2d 693 (Mich.
1972); People v. Williams, 465 N.W.2d 376 (Mich. Ct. App. 1990); People v. Monroe,
339 N.W.2d 260 (Mich. Ct. App. 1983)).
130. Genesee ProsecutorI, 194 N.W.2d at 699.
131. Genesee ProsecutorI, 215 N.W.2d at 147.
132. Grove, 566 N.W.2d at 567 (Kelly, J., dissenting) (citing People v. Williams,
465 N.W.2d 376 (Mich. Ct. App. 1990); People v. Monroe, 339 N.W.2d 260 (Mich.
Ct. App. 1983)).
133. Id (citing Genesee Prosecutorl, 215 N.W.2d 145 (Mich. 1974); GeneseeProsecu-
tor , 194 N.W.2d 693 (Mich. 1972)). It should be noted that the majority declined
to address whether there was a violation of the prosecutor's charging power by stat-
ing that the defendant did not have standing to appeal on those grounds. Id. at 567
n.12.
134. Id.
135. Id. at 567-68 (Kelly, J., dissenting) (citing Genesee Prosecutor I, 215 N.W.2d
145 (Mich. 1974); Genesee ProsecutorI, 194 N.W.2d 693 (Mich. 1972)).
756 UNIVE RSI7Y OFDETROIT MERCYLAWREVIEW [Vol. 75:741

2. People v. Austin
In Austin, the dissent disagreed with the majority's holding that
the trial judge had the discretion to reject the guilty plea because it
was presented over a month after the plea cutoff date and one day
before trial.136 The dissent discussed the various provisions of the
court rules3 7 and declared that " [t] here is no authority in the current

136. Grove, 566 N.W.2d at 564 (KellyJ., dissenting).

137. The dissent indicated:
[T]he current Michigan Court Rules provide well-defined circumstances in
which a trial court is allowed to reject a plea agreement. They allow it only
when the bargain had been conditioned on the court's consent or when
the defendant's plea had not been understanding or voluntary, or was in-
accurate. See MCR 6.301 and MCR 6.302. Subpart A of MCR 6.301 does
not confer broad authority on the trial court to reject a guilty plea for a
reason not specified in a court rule. MCR 6.302(A) specifies when a trial
court may reject a guilty plea. Appellee's reliance on MCR 6.301 (A) as a
basis for the trial court's rejection of a defendant's plea is misplaced.
Id. at 568 (Kelly, J., dissenting). For the text of MCR 6.301(A), see supra note 109.
MCR 6.302 states:
(A) Plea Requirements. The court may not accept a plea of guilty or nolo
contendere unless it is convinced that the plea is understanding, voluntary,
and accurate. Before accepting a plea of guilty or nolo contendere, the
court must place the defendant under oath and personally carry out
subrules (B)-(E).
(B) An Understanding Plea. Speaking directly to the defendant, the court
must advise the defendant and determine that the defendant 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; (3) if the plea is accepted, the defen-
dant will not have a trial of any kind, and so gives up the rights the defen-
dant would have at a trial, including the right: (a) to be tried by ajury; (b)
to be tried by the court without a jury, if the defendant chooses and the
prosecutor and court consent; (c) to be presumed innocent until proved
guilty; (d) to have the prosecutor prove beyond a reasonable doubt that the
defendant is guilty; (e) to have the witnesses against the defendant appear
at the trial; (f) to question the witnesses against the defendant; (g) to have
the court order any witnesses the defendant has for the defense to appear
at the trial; (h) to remain silent during the trial; (i) to not have that silence
used against the defendant; and (j) 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 defen-
dant's own choice to enter the plea; (5) any appeal from the conviction
and sentence pursuant to the plea will be by application for leave to appeal
and not by right.
(C) A Voluntary Plea. (1) The court must ask the prosecutor and the de-
fendant's lawyer whether they have made a plea agreement. (2) If there is a
plea agreement, the court must ask the prosecutor or the defendant's law-
yer what the terms of the agreement are and confirm the terms of the
agreement with the other lawyer and the defendant. (3) If there is a plea
agreement and its terms provide for the defendant's plea to be made in ex-
1998] CASENOTE

Michigan Court Rules for a court to reject a plea agreement on the

basis of a 'plea cutoff date.... The dissent declared that a trial court
"has no greater authority to refuse to accept a plea over a prosecu-

change for a specific sentence disposition or a prosecutorial sentence rec-

ommendation, the court may (a) reject the agreement; or (b) accept the
agreement after having considered the presentence report, in which event
it must sentence the defendant to the sentence agreed to or recommended
by the prosecutor; or (c) accept the agreement without having considered
the presentence report; or (d) take the plea agreement under advisement.
If the court accepts the agreement without having considered the presen-
tence report or takes the plea agreement under advisement, it must explain
to the defendant that the court is not bound to follow the sentence disposi-
tion or recommendation agreed to by the prosecutor, and that if the court
chooses not to follow it, the defendant will be allowed to withdraw from the
plea agreement. (4) 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 be-
yond what is in the plea agreement; (b) whether anyone has threatened the
defendant; and (c) whether it is the defendant's own choice to plead guilty.
(D) An Accurate Plea. (1) If the defendant pleads guilty, the court, by
questioning the defendant, must establish support for a finding that the de-
fendant is guilty of the offense charged or the offense to which the defen-
dant is pleading. (2) If the defendant pleads nolo contendere, the court
may not question the defendant about participation in the crime. The
court must: (a) state why a plea of nolo contendere is appropriate; and (b)
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.
(E) Additional Inquiries. On completing the colloquy with the defendant,
the court must ask the prosecutor and the defendant's lawyer whether ei-
ther is aware of any promises, threats, or inducements other than those al-
ready disclosed on the record, and whether the court has complied with
subrules (B)-(D). If it appears to the court that it has failed to comply with
subrules (B)-(D), the court may not accept the defendant's plea until the
deficiency is corrected.
(F) Plea Under Advisement; Plea Record. The court may take the plea un-
der advisement. A verbatim record must be made of the plea proceeding.
MICH. Cr. R. 6.302.
138. Grove, 566 N.W.2d at 568 (Kelly, J., dissenting). Further, the dissent pro-
vided, MCR 2.401, on which the lead opinion relied, gives the trial court the power
to set deadlines. However, read either by itself or in conjunction with MCR 1.103 or
MCR 6.001(D), it does not override the specific provisions of MCR 6.300, which
governs the acceptance and rejection of guilty pleas. Id. at 568 n.16 (Kelly, J., dis-
senting). For the text of MCR 2.401(B) (1) (b), see supra note 111.
MCR 1.103 states:
The Michigan Court Rules govern practice and procedure in all courts es-
tablished by the constitution and laws of the State of Michigan. Rules
stated to be applicable only in a specific court or only to a specific type of
proceeding apply only to that court or to that type of proceeding and con-
trol over general rules.
MICH. CT.R. 1.103. For the text of MCR 6.001(D), see supranote 110; for the text of
subchapter 6.300, see supranotes 25, 109, 137.
 758 UNIvESTYOFDETROJTMERCYLAWREVEW [Vol. 75:741

tor's objection than it has to accept one."' Therefore, the parties

were "free to settle a case by agreement, even on the eve of the
trial."" 0 The dissent stated that "[t]o hold otherwise ... violates the
established rules of Genesee Prosecutor I and Genesee Prosecutor
H... that the trial court (1) does not enjoy supervisory control over
the prosecutor, and (2) does not have the authority to force the trial
of a defendant on a charge over the prosecutor's objection.""
The dissent also recognized that this issue had not been specifi-
cally addressed by Michigan courts and, therefore, turned to the per-
suasive authority from other jurisdictions, which included federal
law, as well as law from other states."'4 One of the cases the dissent
relied upon was United States v. Shepard.'3 The dissent stated that, in
Shepard, the United States Court of Appeals for the District of Co-
lumbia held "that a district court abused its discretion when it re-
jected a plea entered into during the first day of trial."'4" In this case,
the court determined that the timing of the plea was an insufficient
reason to justify a rejection of the uiwlty plea."4 Further, the dissent
stated that United States v. Robertson held that the trial court's rejec-
tion of an untimely plea agreement offered "shortly before trial" was
an abuse of discretion because "rejecting a plea implicating both
branches of government solely out of concern for the district court's
scheduling is... impermissible."1 7 Also, in United States v. Moore,""
"the trial court rejected as untimely a negotiated plea on the day of
trial.' 9 The Sixth Circuit remanded the case back to the trial court
so that the court could articulate a clearer statement as to why the
plea was rejected.' 0 The court declared that "a defendant is entitled
to plead guilty unless the district court can articulate a sound reason
for rejecting the plea."'5 ' The court indicated that "the rejection of
the plea under such circumstances may well constitute an abuse of
discretion."'5 2

139. Grove, 566 N.W.2d at 568 (KellyJ, dissenting).

140. Id.
141. Id.
142. Id. at 568-69 (Kelly, J., dissenting).
143. 102 F.3d 558, 562-64 (D.C. Cir. 1996).
144. Grove, 566 N.W.2d at 569 (Kelly, J., dissenting).
145. Id.
146. 45 F.3d 1423, 1434, 1438-39 (10th Cir. 1995).
147. Grove, 566 N.W.2d at 569 (KellyJ, dissenting) (quoting Robertson, 45 F.3d at
1439).
148. 916 F.2d 1131 (6th Cir. 1990).
149. Grove, 566 N.W.2d at 569 (Kelly, J., dissenting) (discussing Moore, 916 F.2d
at 1133).
150. Id. (citing Moore, 916 F.2d at 1140).
151. Id. (quoting Moore, 916 F.2d at 1135-36).
152. Id. (quoting Moore, 916 F.2d at 1136 n.11).
1998] CASENOTE

In addition, the dissent stated that Higgins v. Henry Ford Hospi-

tat5 s declared:
Rules of practice and procedure are exactly that. They
should create no rights and should be thought of as indicat-
ing the way in which justice should be administered. They
should give direction to the process of administering justice
but their application should not become a fetish to the ex-
tent that justice in an individual case is not done. There is
need for guides and standards. They must be followed but
they must always be thought of as guides and standards to
the means of achieving justice, not the end ofjustice itself.'54
The dissent indicated that "[i]n the present case, there existed
no circumstances justifying the rejection of the plea."'5 5 The prosecu-
tor made the plea offer on the day before trial, and Defendant Austin
accepted on the same day. 56 The dissent indicated the fact that the
plea offer was not given earlier by the prosecution must be consid-
ered. 57 The dissent declared that "[b] ecause the trial court's interest
in docket control is secondary to the substantive rights of the parties,
I reject the lead opinion's conclusion that the judge properly re-
jected the plea."'" The dissent opined that the majority's conclusion
"inflates the role of day-to-day procedural matters contrary to this
court's directive in Higgins."1 Lastly, the dissent indicated that
"[t] he maintenance of routine deadlines justifies interfering with the
prosecutor's charging authority or with the parties' agreement only if
the court can show it serves the interests ofjustice."' 6

IV. CONCLUSION
6
The practical implications of People v. Grove and People v. Austin' '
on the plea bargaining process could be enormous. Grove provided
the trial judge with authority to reject a guilty plea underlying a plea
agreement through the court's sentencing authority because of con-
cerns that allowance of the guilty plea would be unfair and not in the
interests of justice. The concern about the interests of justice is due
to sentencing discrepancies between the original charges and those

153. 186 N.W.2d 337 (Mich. 1971).

154. Grove, 566 N.W.2d at 569-70 (Kelly, J., dissenting) (quoting Higgins, 186
N.W.2d at 339) (emphasis in original omitted).
155. Id. at 570 (Kelly, J., dissenting).
156. Id. Therefore, "there was no delay in acceptance, only in the offer." Id.
157. Id.
158. I&
159. Id.
160. Grove 566 N.W.2d at 570 (Kelly, J., dissenting) (citing Robertson, 45 F.3d at
1434).
161. People v. Grove, 566 N.W.2d 547 (Mich. 1997).
 760 UNIVERSITYOFDETROIT MERCYLAWREVIEW [Vol. 75:741

of the lower charge involved in the plea or sentence recommenda-

tion. Even though the majority purports that this ruling is author-
ized by the court rules and People v. Killebrew,'62 it has greatly ex-
panded the power and the authority of the trial judge within the plea
bargaining process. 1 Although the court views this decision as being
consistent with the judge's sentencing authority, it has provided the
trial judge with authority that could greatly impact upon the prosecu-
tor's charging power.
Austin provided the authority for ajudge to reject a plea that was
untimely because it was presented after the plea cutoff date estab-
lished within the scheduling order. This decision may seem to be
less controversial than Grove, but it still enlarges the role of the trial
judge in the plea bargaining process. However, the impact of Grove
and Austin will greatly depend upon how the individual trial judge
interprets his role in the plea bargaining process. Therefore, the
true impact of these decisions will depend upon how they are applied
and interpreted by the lower courts. The question remains whether
Grove and Austin could lead to a judicial role in plea bargaining that
moves further away from being a detached and neutral judicial offi-
cer and closer to acting as "prosecutor, judge, and jury."'

HOLLYL. NICKERSON

162. 330 N.W.2d 834 (Mich. 1982); see supraPart IIIA.1.

163. As the dissent made clear, the majority has expanded Killebrew to allow a
judge to reject the underlying guilty plea of a sentence recommendation. This is
because, if Killebrew is read literally, this authority only applied originally to a sen-
tence disposition agreement.
164. Genesee ProsecutorI, 194 N.W.2d 693, 699 (Mich. 1972).