Kenneth C. Smith v. JIMMY STEGALL, Warden

*The Honorable Paul R. Matia, Chief United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0335P (6th Cir.)
File Name: 04a0335p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KENNETH C. SMITH,
Petitioner-Appellant,
v.
JIMMY STEGALL, Warden,
Respondent-Appellee.
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No. 02-2441
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-72959—Robert H. Cleland, District Judge.
Argued: August 4, 2004
Decided and Filed: September 30, 2004
Before: CLAY and GILMAN, Circuit Judges; MATIA,
Chief District Judge.*
_________________
COUNSEL
ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT,
Cincinnati, Ohio, for Appellant. William C. Campbell,
2 Smith v. Stegall No. 02-2441
OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. ON BRIEF: Jeffrey M. Brandt,
ROBINSON & BRANDT, Cincinnati, Ohio, for Appellant.
William C. Campbell, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
GILMAN, J., delivered the opinion of the court, in which
MATIA, D. J., joined. CLAY, J. (pp. 13-17), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Kenneth C.
Smith fatally shot Gary DeLano Brown in June of 1989.
After his first-degree murder conviction was reversed on
procedural grounds, Smith elected to plead guilty in a
Michigan state court to one count of second-degree murder
rather than face a retrial for first-degree murder. The state
promised in the plea agreement not to recommend a sentence
of life imprisonment.
At sentencing, the prosecution literally complied with the
plea agreement, but did request that Smith be imprisoned for
a term of 70 to 100 years. In addition, when asked by the
court if any of the victim’s family members wished to speak,
the prosecutor replied that they wanted Smith to receive a life
sentence. Defense counsel made no objection to the
prosecutor’s statements. Smith was sentenced by the state
trial court to a term of 35 to 55 years in prison plus an
additional 2 years for the use of a firearm in connection with
the crime.
After exhausting his remedies in the Michigan state courts,
Smith filed a petition for a writ of habeas corpus in the district
court. He contended that the state had effectively
recommended a life sentence, thereby breaching the plea

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No. 02-2441 Smith v. Stegall 3
agreement and violating Smith’s right to the due process of
law under the Fourteenth Amendment to the United States
Constitution. The district court denied the petition. For the
reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Factual background
A jury convicted Smith of first-degree murder in August of
1990. The conviction was reversed on appeal because Smith
was found to have been denied his Sixth Amendment right to
a jury selected from a fair cross section of the community.
Instead of going to trial a second time, Smith elected to plead
guilty to one count each of second-degree murder, possession
of a firearm during the commission of a felony, and the
commission of a second felony offense by a habitual offender.
The plea agreement, as summarized by the state trial court,
provided that “[t]he People [would be] free to make whatever
recommendation they want at sentencing, except they do
agree they will not recommend life imprisonment as the
sentence in this case.”
In its sentencing brief to the state trial court, the
prosecution stated: “Justice demands that the Defendant be
sentenced for as long as possible under the law. The people
respectfully request a sentence of 70 to 100 years
imprisonment as a second offender.” At the subsequent
sentencing hearing, the state repeated its request for a term of
70 to 100 years in prison. The trial court also asked the
prosecutor whether any member of the victim’s family
wanted to address the court, to which the prosecutor replied:
“No, Your Honor. For the record, I spoke to the victim’s
family . . . . They’ve informed me that they wish the
Defendant to receive life imprisonment.” Defense counsel
did not object to any of the prosecutor’s statements as being
in violation of the plea agreement.
4 Smith v. Stegall No. 02-2441
The state trial court initially sentenced Smith to a term of
35 years to life in prison on the second-degree murder count
plus an additional 2 years for the firearm violation. Two days
later, the court conducted a resentencing hearing at which it
altered the sentence on the second-degree murder count to a
term of 35 to 55 years in prison because Michigan law does
not allow a sentence of 35 years to life. At the resentencing
hearing, the prosecutor reiterated his request that Smith
receive a sentence of 70 to 100 years in prison. Defense
counsel once again did not object to this recommendation as
being in violation of the plea agreement.
B. Procedural background
Smith appealed to the Michigan Court of Appeals,
contending for the first time that the plea agreement was
breached when the prosecutor recommended a sentence “for
as long as possible under the law,” urged a specific sentence
of 70 to 100 years, and stated that the victim’s family wanted
Smith to receive a life sentence. The appellate court rejected
this argument, reasoning as follows:
In the plea bargain, the prosecution merely agreed not to
recommend the specific sentence of “life.” The plea
bargain placed no restrictions on “term of years”
sentence recommendations, even though a long term of
years sentence may be just as harsh, if not harsher, than
a parolable “life” sentence. People v. Carson, . . . 560
N.W.2d 657 (1996). Although one may question the
value of having the prosecution promise not to
recommend a “life” sentence while leaving the
prosecution free to recommend an equally harsh or
harsher long term of years sentence, the fact remains that
the defendant received everything he bargained for.
Nor did the plea bargain restrict the prosecution’s
authority to advise the court of the wishes of the victim’s
family. . . . The prosecution did not indicate any
concurrence with the family’s request for a sentence of

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No. 02-2441 Smith v. Stegall 5
“life.” To the contrary, the prosecution recommended a
sentence of seventy to one hundred years’ imprisonment.
People v. Smith, No. 207090, 1999 WL 33438154, at *1
(Mich. Ct. App. July 27, 1999) (per curiam) (unpublished)
(citations omitted). The Michigan Supreme Court denied
Smith’s motion for leave to appeal in a one-sentence order
with no analysis.
Smith then filed a motion for post-conviction relief with the
state trial court. The motion was denied. Leave to appeal the
trial court’s decision was later denied by both the Michigan
Court of Appeals and the Michigan Supreme Court.
Smith’s next legal step was to file a petition for a writ of
habeas corpus with the district court in August of 2001. In
his petition, Smith raised four claims, including his argument
that the prosecution breached the plea agreement. The
magistrate judge assigned to the case recommended that the
petition be denied. In November of 2002, the district court
adopted the magistrate judge’s Report and Recommendation
and denied Smith’s petition on all four claims. The district
court subsequently granted Smith a Certificate of
Appealability on the sole ground that the prosecutor had
breached the plea agreement. This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s legal conclusions,
but will set aside its findings of fact only if the findings are
clearly erroneous. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.
2001). The standard of review for state-court determinations,
on the other hand, is dictated by the Antiterrorism and
Effective Death Penalty Act (AEDPA), codified principally
at 28 U.S.C. § 2254(d). AEDPA applies in the present case
because Smith filed his habeas petition in August of 2001,
well after the Act’s effective date of April 24, 1996. See
6 Smith v. Stegall No. 02-2441
Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (noting
that AEDPA applies to habeas petitions filed after the Act’s
effective date). The Act provides in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state-court decision is “contrary to” federal law “if the
state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). In contrast, an “unreasonable
application” of federal law occurs where a “state court
identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. “[A] federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also
be unreasonable.” Id. at 411; see also id. at 409 (“[A] federal
habeas court making the ‘unreasonable application’ inquiry
should ask whether the state court’s application of clearly

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No. 02-2441 Smith v. Stegall 7
established federal law was objectively unreasonable.”)
(emphasis added).
Under AEDPA, “clearly established federal law” means
“the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. “As is dictated by the statute, we may
not look to lower federal court decisions in deciding whether
the state decision is contrary to, or an unreasonable
application of, clearly established federal law.” Doan v.
Brigano, 237 F.3d 722, 729 (6th Cir. 2001) (quotation marks
omitted).
The decisions of the lower federal courts may be
considered, however, for two purposes. First, “the decisions
of the United States Courts of Appeals may be informative to
the extent we have already reviewed and interpreted the
relevant Supreme Court case law to determine whether a legal
principle or right had been clearly established by the Supreme
Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).
We are also bound by any prior Sixth Circuit decisions
concluding that federal law on a particular issue has been
“clearly established” by certain holdings of the Supreme
Court. See Rule 206(c) of the Sixth Circuit Rules (“Reported
panel opinions are binding on subsequent panels. Thus, no
subsequent panel overrules a published opinion of a previous
panel. Court en banc consideration is required to overrule a
published opinion of the court.”).
B. The Michigan Court of Appeals’s application of
clearly established federal law was not objectively
unreasonable
Smith does not contend that the Michigan Court of Appeals
“arrive[d] at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or . . . decide[d] a case
differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
413 (2000). His sole contention is that the Michigan Court of
8 Smith v. Stegall No. 02-2441
Appeals’s “application of clearly established federal law was
objectively unreasonable.” Id. at 409.
The leading Supreme Court case regarding a state’s breach
of a plea agreement is Santobello v. New York, 404 U.S 257
(1975). In Santobello, the defendant was originally charged
with two gambling offenses. He agreed to plead guilty to a
single, lesser-included offense. The state of New York, in
return, agreed to the guilty plea and promised not to make a
sentencing recommendation. At the sentencing hearing,
however, the prosecutor (who had been assigned to the case
after the plea agreement was reached) recommended that the
defendant receive the maximum one-year sentence. Id. at
259.
The Supreme Court vacated the defendant’s sentence,
holding that “when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise
must be fulfilled.” Id. at 262. Despite the trial judge’s
statement at sentencing that he had not been influenced by the
prosecutor’s recommendation, the Court rejected the
argument that the breach of the plea agreement was harmless.
Id. at 262-63.
Although Santobello discusses the consequences of a
broken plea agreement, the case does not amplify the
parameters of what constitutes a breach. Various circuit court
decisions, however, have addressed the issue since Santobello
was decided. This court has held that “[p]lea agreements are
contractual in nature. In interpreting and enforcing them, we
are to use traditional principles of contract law.” United
States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). One
fundamental principle of contract interpretation is that
“primary importance should be placed upon the words of the
contract. Unless expressed in some way in the writing, the
actual intent of the parties is ineffective, except when it can
be made the basis for reformation of the writing.”
11 Williston on Contracts § 31:4 (4th ed. 2000). Consistent

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No. 02-2441 Smith v. Stegall 9
with the principle articulated by Williston, this court has held
that the state will be held to the literal terms of the plea
agreement. United States v. Mandell, 905 F.2d 970, 973 (6th
Cir. 1990) (citing United States v. Kamer, 781 F.2d 1380,
1387 (9th Cir. 1986)).
In the present case, the state promised Smith not to
recommend a life sentence. No promises were made,
however, that limited the prosecution’s ability to recommend
any particular term of years. Michigan law provides that a
defendant convicted of second-degree murder “shall be
punished by imprisonment in the state prison for life, or any
term of years, in the discretion of the court trying the same.”
Mich. Comp. Laws § 750.317. Because the state promised
only that it would not recommend a life sentence, one
reasonable interpretation of the plea agreement is that it left
the prosecutor free to recommend a statutorily permissible
sentence of “any term of years,” which would include a term
of 70 to 100 years.
Smith contends, however, that the state went beyond
recommending a particular term of years by arguing that
“[j]ustice demands that the Defendant be sentenced for as
long as possible under the law.” According to Smith, that
assertion was the functional equivalent of asking the court to
impose a life sentence.
Smith’s argument, however, is based upon the assumption
that a sentence of parolable life is more severe than a sentence
for a term of years. But the Michigan Court of Appeals has
explained that a defendant sentenced to a term of years is not
eligible for parole until he or she has served the lower number
(meaning that a defendant sentenced to a term of 70 to 100
years would not be eligible for parole until the 70 years had
lapsed), whereas a defendant sentenced to parolable life is
eligible for parole in 10 or 15 years, depending on when the
offense was committed. People v. Carson, 560 N.W.2d 657,
662-63 (Mich. Ct. App. 1997). A sentence of 70 to 100 years
10 Smith v. Stegall No. 02-2441
in prison, therefore, could actually result in a longer term of
imprisonment than a parolable life sentence.
This quirk in Michigan sentencing law supports the
conclusion that the prosecutor believed that a sentence of 70
to 100 years in prison was the longest possible sentence that
Smith could receive. In other words, the prosecutor was not
asking that the trial court sentence Smith either for a term of
70 to 100 years or “for as long as possible under the law.”
Instead, the prosecutor was recommending a term of 70 to
100 years because he believed that that was the longest
possible sentence.
Further support for this conclusion comes from the fact
that, at the sentencing hearing, the state recommended only a
term of years without reference to its written statement that
Smith should be sentenced for as long as possible. This
suggests that the prosecution did not intend the statement in
its sentencing brief to be interpreted as a recommendation of
a life sentence.
Smith contends, however, that even if the prosecutor did
not violate the literal terms of the plea agreement, the
recommended sentence of 70 to 100 years was inconsistent
with “[t]he parties’ reasonable expectation, and certainly
Smith and his counsel’s reasonable expectation, . . . that the
prosecutor would not request a sentence that was the highest
possible or long enough that Smith would spend the rest of
his life in prison.” But this argument ignores the principle of
contract interpretation, discussed above, that “[u]nless
expressed in some way in the writing, the actual intent of the
parties is ineffective, except when it can be made the basis for
reformation of the writing.” 11 Williston on Contracts § 31:4
(4th ed. 2000). Smith is therefore asking us to ignore the
plain language of the plea agreement and instead to enforce
his own unwritten, subjective intent. This is not a permissible
method of contract interpretation.

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No. 02-2441 Smith v. Stegall 11
Even if we could properly consider evidence of the parties’
subjective intent, Smith’s allegation that the sentencing
recommendation by the prosecutor conflicted with Smith’s
subjective understanding of the plea agreement is
questionable. The state recommended a term of 70 to 100
years in its sentencing brief, at the sentencing hearing, and yet
again at the resentencing hearing. Yet Smith never objected
on the ground that this recommendation violated the plea
agreement, which suggests that the prosecution’s
recommendation was not contrary to his subjective
expectations.
He also objects to the fact that the state informed the
sentencing court that the victim’s family wanted Smith to
receive a life sentence. Under Michigan law, however, family
members have the right to make their views known to the
sentencing court. See Mich. Comp. Laws § 780.765. The
prosecutor did not volunteer to speak on behalf on the
victim’s family, but was simply responding to a question by
the trial court. Moreover, as the Michigan Court of Appeals
stated,
the plea bargain [did not] restrict the prosecution’s
authority to advise the court of the wishes of the victim’s
family. . . . The prosecution did not indicate any
concurrence with the family’s request for a sentence of
“life.” To the contrary, the prosecution recommended a
sentence of seventy to one hundred years’ imprisonment.
People v. Smith, 1999 WL 33438154, at *1; see also Clement
v. McCaughtry, No. 92-4154, 1993 WL 513886 (7th Cir.
Dec. 9, 1993) (unpublished) (holding that the victim’s
statement that the court should impose a life sentence did not
violate the prosecutor’s agreement not to recommend a
sentence of any specific number of years, where the
prosecutor did not comment on the victim’s statement or
endorse it in any way). The Michigan Court of Appeals
reasonably concluded that the response of the prosecutor to
12 Smith v. Stegall No. 02-2441
the trial court’s question did not constitute a sentencing
recommendation.
Ultimately, we must decide whether the Michigan Court of
Appeals’s conclusion that the state did not breach the plea
agreement was objectively unreasonable. That court applied
a standard principle of contract interpretation in focusing
exclusively on the unambiguous language of the plea
agreement. This court has followed the same approach when
interpreting plea agreements, which suggests that the
Michigan Court of Appeals’s methodology was not
unreasonable. See United States v. Mandell, 905 F.2d 970,
973 (6th Cir. 1990). Whether we would have interpreted the
plea agreement differently if we had been in the shoes of the
Michigan Court of Appeals is irrelevant. A writ of habeas
corpus may issue only if the state court’s application of
clearly established federal law was objectively unreasonable.
We conclude that it was not.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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No. 02-2441 Smith v. Stegall 13
______________
DISSENT
______________
CLAY, Circuit Judge, dissenting. It is well-established that
“the law does not permit a criminal defendant to bargain away
his constitutional rights without receiving in return … the
benefit of his bargain ….” Bercheny v. Johnson, 633 F.2d
473, 476 (6th Cir. 1980); accord United States v. Blummet,
786 F.2d 720, 722 (6th Cir. 1986)). See also United States v.
Wesley, 13 Fed. Appx. 257, 259 (6th Cir. 2001) (“Plea
agreements are subject to an analysis of the rights and duties
of the parties similar to the law of contracts. Each party
should receive the benefit of his bargain.”) (citing United
States v. McQueen, 108 F.3d 64 (4th Cir. 1997)); accord
United States v. Taylor, 68 Fed. Appx. 614, 615 (6th Cir.
2003). Today’s majority opinion condones this prohibited
practice.
Like any defendant who enters a plea bargain, Kenneth
Smith expected to benefit from pleading guilty to second
degree murder as opposed to facing re-trial and a possible
conviction for first degree murder. Under Michigan law, a
person guilty of first degree murder must be punished by
“imprisonment for life,” MICH. COMP. LAWS. § 750.316(1),
which means a mandatory life sentence without the possibility
of parole. See People v. Hall, 242 N.W. 2d 377, 380 (Mich.
1976) (interpreting a conviction for first degree murder under
MICH. COMP. LAWS. § 750.316 as requiring a “mandatory life
sentence (without possibility of parole …”)). By contrast, a
person guilty of second degree murder must be punished by
“imprisonment in the state prison for life[] or any term of
years,” MICH. COMP. LAWS. § 750.317, and may be eligible
for parole. E.g., People v. Bazzetta, No. 237756, 2003 WL
133060, at *3-*4 (Mich. Ct. App. Jan. 3, 2003). Thus, Smith
reasonably understood that the benefit of pleading guilty to a
lesser charge would be (assuming the court followed the
prosecutor’s recommendation) avoidance of prison for life
14 Smith v. Stegall No. 02-2441
without the possibility of parole. See United States v. Carr,
170 F.3d 572, 575 (6th Cir. 1999) (“In determining whether
a plea agreement has been broken, courts look to what was
reasonably understood by the defendant when he entered his
plea of guilty.”) (citing United States v. Mandell, 905 F.2d
970, 972 (6th Cir. 1990)). In return for the prosecutor’s
assurance not to recommend that he spend the rest of his days
in prison with no hope of release, Smith would relinquish his
constitutional right to insist on a jury trial, as well as related
constitutional rights, and the possibility of an acquittal.
The State also expected to benefit from Smith’s plea to
second degree murder. It would avoid the prospect of
spending considerable time and resources on a trial with no
guarantee of a conviction. In return, the State would
relinquish its right to seek a sentence of life imprisonment
without parole, which would flow from a first degree murder
conviction.
In violation of the parties’ bargain, the State recommended
life imprisonment without parole when it recommended a 70
to 100 year sentence. As the majority notes, in Michigan, a
defendant receiving a 70 year sentence generally is not
eligible for parole until 70 years of the sentence have elapsed.
Smith, who was 21 years old at the time of the offense, likely
would be over 90 years old by the time he would be eligible
for parole from a 70 to 100 year sentence. It is highly
doubtful that he would survive to that age in prison, thereby
revealing the true nature of the State’s recommendation – life
imprisonment without parole. See People v. Carson, 560
N.W.2d 657, 677 (Mich. Ct. App. 1996) (“[A] sentence of a
lengthy term of years that may prevent the Parole Board from
assuming jurisdiction, thus effectively constituting a life term
without parole, is one of the most severe sentences a
defendant may receive.”).
The majority correctly notes that a sentence of 70 to 100
years in prison could result in a longer term of imprisonment
than a parolable life sentence. I am puzzled, however, as to

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No. 02-2441 Smith v. Stegall 15
how this “quirk in Michigan sentencing law” undermines
Smith’s argument. If indeed Smith would have been better
off with a parolable life sentence than a lengthy term of years,
the prosecutor’s promise not to recommend life imprisonment
in exchange for his guilty plea was utterly worthless.
Certainly, Smith did not reasonably expect that he had
relinquished his constitutional rights in exchange for no
benefit whatsoever. Moreover, the relevant comparison is not
between the potential sentences Smith faced for second
degree murder, but between (a) the 70 to 100 year sentence
for second degree murder that the prosecution recommended
and (b) the nonparolable life sentence for first degree murder
that Smith reasonably expected to avoid by pleading guilty,
i.e. a sentence that would require him to spend the rest of his
life behind bars. The fact that a sentence of parolable life
actually could result in less prison time than a 70-year term
shows that Smith was not concerned about a sentence of
parolable life per se, but any mandatory prison sentence that
would extend to the end of his natural life. The most
straightforward way to address this concern was to have the
prosecution agree not to recommend imprisonment for life,
which is precisely the promise the prosecutor failed to fulfill.
I disagree that Smith’s failure to object to the prosecutor’s
sentencing recommendation at the time of sentencing
suggests that the recommendation was not contrary to Smith’s
subjective expectations of the plea agreement. A more
plausible interpretation of Smith’s silence – or, rather, that of
his trial counsel – is that his attorney was constitutionally
ineffective. Because Smith requested, but was denied, a
certificate of appealability on this issue, I do not believe it is
appropriate to hold his attorney’s failures against him on this
appeal.
To conclude, the majority ignores the parties’ reasonable
expectations behind the plea agreement in favor of a
formalistic interpretation that ignores context and common
sense. True, as a purely literal matter, the State complied
with the agreement “not recommend life imprisonment as the
16 Smith v. Stegall No. 02-2441
sentence” because the prosecutor did not use the word “life”
in her sentencing recommendation. This literal compliance
with the agreement, however, did not translate into
substantive compliance. Smith relinquished his constitutional
rights attendant to a trial by jury in reliance on the promise
that the State would not recommend that he spend the rest of
his natural life behind bars. As shown above, the State did
not honor this promise, denying Smith the benefit of his
bargain. I, therefore, would grant Smith’s habeas corpus
petition because the Michigan courts’ denial of Smith’s
application for post-conviction relief involved an objectively
unreasonable application of Santobello v. New York, 404 U.S.
257 (1975), which held that a prosecutor must fulfill promises
that induce a guilty plea. Id. at 262.
I also have grave doubts about whether the prosecutor
breached the plea agreement when she disclosed the victim’s
family’s wishes that Smith receive a life sentence. At Smith’s
sentencing, the court asked the prosecutor, “To your
knowledge, is anyone else here to talk about sentencing?”
The prosecutor appropriately responded, “No, Your Honor.”
But then she gratuitously added:
For the record, I spoke to the victim’s family, his mother,
Cora Bennett; and his brother, Fred Brown; and, sister,
Dolores Brown. They’ve informed me that they wish the
Defendant to receive life imprisonment. They did not
want to be here today. It was too painful for them to
have to go through this a second time 8 years after their
brother was, and son was murdered. They did not want
to see the Defendant again, so they are not here.
Because the court had asked only whether anyone else was
present to talk about the sentencing, the prosecutor did not
“simply respond[] to a question by the trial court,” as the
majority states. If that were so, the prosecutor would have
gone silent after uttering the words “No, Your Honor.”

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No. 02-2441 Smith v. Stegall 17
The fact that family members had the right to make their
views known to the sentencing court did not give the
prosecutor license to voice their desire for a life sentence. It
was incumbent on the family to appear at Smith’s sentencing,
which they elected not to do, or to appoint another person to
speak on their behalf. MICH. COMP. LAWS § 780.765. Even
assuming that the prosecutor could have been the family’s
appointed spokesperson, the prosecutor should have explicitly
advised the court that, pursuant to the plea agreement, the
State was not recommending a life sentence.
The danger of today’s ruling is that it will encourage
creative prosecutors, contractually bound to recommending
lower sentences, to advocate higher sentences by proxy. By
attributing the impermissible recommendation to a third party,
such as a victim’s family member, the prosecutor can achieve
surreptitiously what it cannot do so directly. When a plea
agreement constrains a prosecutor’s sentencing
recommendation, clearly the better practice is for the
prosecutor to affirmatively disassociate herself or himself
from the recommendations of other parties who are not
similarly constrained.

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