A Cobbs agreement in Michigan is a judge’s on-the-record preview of the sentence the judge would likely impose if you plead guilty or no contest, based on what the court knows at that moment. It comes from People v. Cobbs, 443 Mich 276 (1993), and its central protection is this: if the judge later decides the sentence has to be higher than the preview, you have an absolute right to withdraw your plea and take the case to trial.1Justia. People v Cobbs
How You Get a Cobbs Evaluation
Either the defense or the prosecution has to ask. A judge cannot offer a Cobbs evaluation on their own initiative, a rule designed to keep the court from appearing to push anyone toward a plea.1Justia. People v Cobbs
When a judge agrees, they answer a narrow question: knowing what I know today, what sentence would I impose on a plea? Michigan Court Rule 6.302(C)(2) requires a “numerically quantifiable sentence term or range,” which can include phrasing like “lower half” or “upper quarter” of the guidelines range.2Michigan Courts. Killebrew and Cobbs Plea Agreements A vague assurance doesn’t count.
No defendant is entitled to a Cobbs evaluation. The Supreme Court said in Cobbs that judges “may prefer not to make such a disclosure,” and some do decline, often because they’d rather see the full presentence report first.1Justia. People v Cobbs
The judge also cannot use the evaluation as leverage. Suggesting that a trial loss would mean a harsher sentence is off-limits. The preview describes only what a plea-based sentence would look like.1Justia. People v Cobbs
Any guidelines range mentioned at the plea hearing is preliminary. The court has to tell you so, because the full scoring usually comes later with the presentence report and the final range may shift.
Your Right to Withdraw the Plea
This is the part that makes a Cobbs evaluation worth something. If the judge later concludes the sentence must exceed the preview, you have an “absolute right” to take your plea back.1Justia. People v Cobbs The court is required to give you that choice. You can either accept the higher sentence and move forward, or withdraw. If you withdraw, the case resets as if no plea had been entered, and the prosecution has to proceed toward trial or negotiate again.
You have to make that decision with limited information. The judge is prohibited from telling you what the new, higher sentence would be if you let the plea stand.2Michigan Courts. Killebrew and Cobbs Plea Agreements You know only that it will be higher than the original preview.
One more detail: if the judge doesn’t honor the Cobbs evaluation, that alone is not grounds to disqualify the judge from the case. You can withdraw the plea, but you cannot force the judge off.1Justia. People v Cobbs
What Happens to What You Said
If you pull the plea back, Michigan Rule of Evidence 410 protects you. The plea itself and any statements you made during the plea proceeding under MCR 6.302 are not admissible against you in any civil or criminal case.3Michigan Courts. Michigan Rules of Evidence – Rule 410 The same protection covers statements made during plea discussions with the prosecutor that either produced no plea or produced one later withdrawn. The prosecution cannot use those statements as evidence at a later trial.
Two narrow exceptions apply. A statement made under oath, on the record, with counsel present can be used in a perjury or false-statement prosecution. And if part of a plea discussion is introduced, the court may allow related statements from the same discussion to be considered alongside it.3Michigan Courts. Michigan Rules of Evidence – Rule 410
How It Differs From a Killebrew Agreement
Michigan also uses two plea structures from People v. Killebrew, 416 Mich 189 (1982), and they are easy to confuse with a Cobbs evaluation. The withdrawal rights are not the same.
Killebrew Sentence Agreement
Here the prosecutor and defendant negotiate a specific sentence or range and present it to the judge. The judge can accept it, reject it, or wait until after reviewing the presentence report. If the judge accepts, the agreed sentence is binding. If the judge rejects it, you must be told on the record and you get to withdraw the plea.2Michigan Courts. Killebrew and Cobbs Plea Agreements
Killebrew Sentence Recommendation
This one is weaker. The prosecutor recommends a sentence, but the judge can accept the plea and ignore the recommendation. If the judge imposes something different, you do not get to withdraw the plea.2Michigan Courts. Killebrew and Cobbs Plea Agreements That is the critical gap. A prosecutorial recommendation alone gives you no safety net at sentencing.
Where Cobbs Sits
A Cobbs evaluation lands between the two. The judge participates directly, unlike a Killebrew agreement where the judge stays out of negotiations, but the preview is not binding on the court the way an accepted Killebrew agreement is. What you get in return is the absolute withdrawal right if the judge cannot honor the number.1Justia. People v Cobbs
Why the Final Sentence Can Change
The usual reason a Cobbs evaluation shifts is the Presentence Investigation Report. After a plea, a probation officer investigates your background, the circumstances of the offense, and the impact on any victims. Michigan law requires this investigation before sentencing on any felony conviction.4Michigan Legislature. Michigan Compiled Laws 771.14
The report covers much more than the judge had at the plea stage. It includes criminal and traffic history, education and employment, substance abuse history, family circumstances, a victim impact statement if the victim provides one, and proposed guidelines scoring that may differ from the preliminary estimate.4Michigan Legislature. Michigan Compiled Laws 771.14
Undisclosed prior convictions, a higher-than-expected guidelines score, or a strong victim statement can all push the judge past the preview. The Cobbs court said as much, noting that the evaluation doesn’t bind the judge because “additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources.”1Justia. People v Cobbs
You and your attorney receive copies of the report before sentencing and can challenge inaccuracies. That matters, because errors in the scoring or the factual summary can inflate the guidelines range and put the Cobbs preview at risk.
When a Cobbs Evaluation Isn’t Available
Some charges leave no room for a meaningful preview because the sentence is dictated by statute. When a crime carries a mandatory determinate sentence or mandatory life imprisonment, the court must impose that penalty regardless of what any evaluation might say.5Michigan Courts. Special Sentencing Circumstances The sentencing guidelines don’t apply to those offenses.
Mandatory minimums create a related ceiling on how low a Cobbs preview can go. A judge cannot offer a number below the statutory floor. First-degree criminal sexual conduct against a child under 13 carries a mandatory minimum of 25 years when the offender is 17 or older, and repeat offenders of certain sex crimes against children under 13 face mandatory life without parole.5Michigan Courts. Special Sentencing Circumstances No evaluation changes those outcomes.
And even where a Cobbs evaluation is available, the judge can decline. If that happens, a Killebrew sentence agreement or recommendation negotiated with the prosecutor remains another route to some predictability at sentencing.