           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     Smith v. Stegall                             No. 02-2441
        ELECTRONIC CITATION: 2004 FED App. 0335P (6th Cir.)
                    File Name: 04a0335p.06                                 OFFICE OF THE ATTORNEY GENERAL, Lansing,
                                                                           Michigan, for Appellee. ON BRIEF: Jeffrey M. Brandt,
                                                                           ROBINSON & BRANDT, Cincinnati, Ohio, for Appellant.
UNITED STATES COURT OF APPEALS                                             William C. Campbell, OFFICE OF THE ATTORNEY
                                                                           GENERAL, Lansing, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                        GILMAN, J., delivered the opinion of the court, in which
                                                                           MATIA, D. J., joined. CLAY, J. (pp. 13-17), delivered a
 KENNETH C. SMITH,                X                                        separate dissenting opinion.
         Petitioner-Appellant, -
                                   -                                                            _________________
                                   -  No. 02-2441
           v.                      -                                                                OPINION
                                    >                                                           _________________
                                   ,
 JIMMY STEGA LL, Warden,           -                                         RONALD LEE GILMAN, Circuit Judge. Kenneth C.
         Respondent-Appellee. -                                            Smith fatally shot Gary DeLano Brown in June of 1989.
                                  N                                        After his first-degree murder conviction was reversed on
      Appeal from the United States District Court                         procedural grounds, Smith elected to plead guilty in a
     for the Eastern District of Michigan at Detroit.                      Michigan state court to one count of second-degree murder
    No. 01-72959—Robert H. Cleland, District Judge.                        rather than face a retrial for first-degree murder. The state
                                                                           promised in the plea agreement not to recommend a sentence
                     Argued: August 4, 2004                                of life imprisonment.

            Decided and Filed: September 30, 2004                             At sentencing, the prosecution literally complied with the
                                                                           plea agreement, but did request that Smith be imprisoned for
  Before: CLAY and GILMAN, Circuit Judges; MATIA,                          a term of 70 to 100 years. In addition, when asked by the
                Chief District Judge.*                                     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
                            COUNSEL                                        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
ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT,                              the crime.
Cincinnati, Ohio, for Appellant. William C. Campbell,
                                                                             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
    *
     The Honorable Paul R. Matia, Chief United States District Judge for   recommended a life sentence, thereby breaching the plea
the Northern District of Ohio, sitting by designation.

                                   1
No. 02-2441                              Smith v. Stegall     3    4      Smith v. Stegall                            No. 02-2441

agreement and violating Smith’s right to the due process of           The state trial court initially sentenced Smith to a term of
law under the Fourteenth Amendment to the United States            35 years to life in prison on the second-degree murder count
Constitution. The district court denied the petition. For the      plus an additional 2 years for the firearm violation. Two days
reasons set forth below, we AFFIRM the judgment of the             later, the court conducted a resentencing hearing at which it
district court.                                                    altered the sentence on the second-degree murder count to a
                                                                   term of 35 to 55 years in prison because Michigan law does
                    I. BACKGROUND                                  not allow a sentence of 35 years to life. At the resentencing
                                                                   hearing, the prosecutor reiterated his request that Smith
A. Factual background                                              receive a sentence of 70 to 100 years in prison. Defense
                                                                   counsel once again did not object to this recommendation as
   A jury convicted Smith of first-degree murder in August of      being in violation of the plea agreement.
1990. The conviction was reversed on appeal because Smith
was found to have been denied his Sixth Amendment right to         B. Procedural background
a jury selected from a fair cross section of the community.
Instead of going to trial a second time, Smith elected to plead      Smith appealed to the Michigan Court of Appeals,
guilty to one count each of second-degree murder, possession       contending for the first time that the plea agreement was
of a firearm during the commission of a felony, and the            breached when the prosecutor recommended a sentence “for
commission of a second felony offense by a habitual offender.      as long as possible under the law,” urged a specific sentence
The plea agreement, as summarized by the state trial court,        of 70 to 100 years, and stated that the victim’s family wanted
provided that “[t]he People [would be] free to make whatever       Smith to receive a life sentence. The appellate court rejected
recommendation they want at sentencing, except they do             this argument, reasoning as follows:
agree they will not recommend life imprisonment as the
sentence in this case.”                                                In the plea bargain, the prosecution merely agreed not to
                                                                       recommend the specific sentence of “life.” The plea
  In its sentencing brief to the state trial court, the                bargain placed no restrictions on “term of years”
prosecution stated: “Justice demands that the Defendant be             sentence recommendations, even though a long term of
sentenced for as long as possible under the law. The people            years sentence may be just as harsh, if not harsher, than
respectfully request a sentence of 70 to 100 years                     a parolable “life” sentence. People v. Carson, . . . 560
imprisonment as a second offender.” At the subsequent                  N.W.2d 657 (1996). Although one may question the
sentencing hearing, the state repeated its request for a term of       value of having the prosecution promise not to
70 to 100 years in prison. The trial court also asked the              recommend a “life” sentence while leaving the
prosecutor whether any member of the victim’s family                   prosecution free to recommend an equally harsh or
wanted to address the court, to which the prosecutor replied:          harsher long term of years sentence, the fact remains that
“No, Your Honor. For the record, I spoke to the victim’s               the defendant received everything he bargained for.
family . . . . They’ve informed me that they wish the
Defendant to receive life imprisonment.” Defense counsel               Nor did the plea bargain restrict the prosecution’s
did not object to any of the prosecutor’s statements as being          authority to advise the court of the wishes of the victim’s
in violation of the plea agreement.                                    family. . . . The prosecution did not indicate any
                                                                       concurrence with the family’s request for a sentence of
No. 02-2441                              Smith v. Stegall     5    6      Smith v. Stegall                           No. 02-2441

  “life.” To the contrary, the prosecution recommended a           Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (noting
  sentence of seventy to one hundred years’ imprisonment.          that AEDPA applies to habeas petitions filed after the Act’s
                                                                   effective date). The Act provides in pertinent part as follows:
People v. Smith, No. 207090, 1999 WL 33438154, at *1
(Mich. Ct. App. July 27, 1999) (per curiam) (unpublished)              An application for a writ of habeas corpus on behalf of a
(citations omitted). The Michigan Supreme Court denied                 person in custody pursuant to the judgment of a State
Smith’s motion for leave to appeal in a one-sentence order             court shall not be granted with respect to any claim that
with no analysis.                                                      was adjudicated on the merits in State court proceedings
                                                                       unless the adjudication of the claim –
   Smith then filed a motion for post-conviction relief with the
state trial court. The motion was denied. Leave to appeal the            (1) resulted in a decision that was contrary to, or
trial court’s decision was later denied by both the Michigan             involved an unreasonable application of, clearly
Court of Appeals and the Michigan Supreme Court.                         established Federal law, as determined by the
                                                                         Supreme Court of the United States; or
  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              (2) resulted in a decision that was based on an
his petition, Smith raised four claims, including his argument           unreasonable determination of the facts in light of
that the prosecution breached the plea agreement. The                    the evidence presented in the State court proceeding.
magistrate judge assigned to the case recommended that the
petition be denied. In November of 2002, the district court        28 U.S.C. § 2254(d).
adopted the magistrate judge’s Report and Recommendation
and denied Smith’s petition on all four claims. The district          A state-court decision is “contrary to” federal law “if the
court subsequently granted Smith a Certificate of                  state court arrives at a conclusion opposite to that reached by
Appealability on the sole ground that the prosecutor had           [the Supreme] Court on a question of law or if the state court
breached the plea agreement. This timely appeal followed.          decides a case differently than [the Supreme] Court has on a
                                                                   set of materially indistinguishable facts.” Williams v. Taylor,
                       II. ANALYSIS                                529 U.S. 362, 413 (2000). In contrast, an “unreasonable
                                                                   application” of federal law occurs where a “state court
A. Standard of review                                              identifies the correct governing legal principle from [the
                                                                   Supreme] Court’s decisions but unreasonably applies that
   We review de novo the district court’s legal conclusions,       principle to the facts of the prisoner’s case.” Id. “[A] federal
but will set aside its findings of fact only if the findings are   habeas court may not issue the writ simply because that court
clearly erroneous. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.      concludes in its independent judgment that the relevant
2001). The standard of review for state-court determinations,      state-court decision applied clearly established federal law
on the other hand, is dictated by the Antiterrorism and            erroneously or incorrectly. Rather, that application must also
Effective Death Penalty Act (AEDPA), codified principally          be unreasonable.” Id. at 411; see also id. at 409 (“[A] federal
at 28 U.S.C. § 2254(d). AEDPA applies in the present case          habeas court making the ‘unreasonable application’ inquiry
because Smith filed his habeas petition in August of 2001,         should ask whether the state court’s application of clearly
well after the Act’s effective date of April 24, 1996. See
No. 02-2441                             Smith v. Stegall     7    8    Smith v. Stegall                            No. 02-2441

established federal law was objectively unreasonable.”)           Appeals’s “application of clearly established federal law was
(emphasis added).                                                 objectively unreasonable.” Id. at 409.
  Under AEDPA, “clearly established federal law” means              The leading Supreme Court case regarding a state’s breach
“the holdings, as opposed to the dicta, of [the Supreme]          of a plea agreement is Santobello v. New York, 404 U.S 257
Court’s decisions as of the time of the relevant state-court      (1975). In Santobello, the defendant was originally charged
decision.” Id. at 412. “As is dictated by the statute, we may     with two gambling offenses. He agreed to plead guilty to a
not look to lower federal court decisions in deciding whether     single, lesser-included offense. The state of New York, in
the state decision is contrary to, or an unreasonable             return, agreed to the guilty plea and promised not to make a
application of, clearly established federal law.” Doan v.         sentencing recommendation. At the sentencing hearing,
Brigano, 237 F.3d 722, 729 (6th Cir. 2001) (quotation marks       however, the prosecutor (who had been assigned to the case
omitted).                                                         after the plea agreement was reached) recommended that the
                                                                  defendant receive the maximum one-year sentence. Id. at
  The decisions of the lower federal courts may be                259.
considered, however, for two purposes. First, “the decisions
of the United States Courts of Appeals may be informative to         The Supreme Court vacated the defendant’s sentence,
the extent we have already reviewed and interpreted the           holding that “when a plea rests in any significant degree on a
relevant Supreme Court case law to determine whether a legal      promise or agreement of the prosecutor, so that it can be said
principle or right had been clearly established by the Supreme    to be part of the inducement or consideration, such promise
Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).      must be fulfilled.” Id. at 262. Despite the trial judge’s
We are also bound by any prior Sixth Circuit decisions            statement at sentencing that he had not been influenced by the
concluding that federal law on a particular issue has been        prosecutor’s recommendation, the Court rejected the
“clearly established” by certain holdings of the Supreme          argument that the breach of the plea agreement was harmless.
Court. See Rule 206(c) of the Sixth Circuit Rules (“Reported      Id. at 262-63.
panel opinions are binding on subsequent panels. Thus, no
subsequent panel overrules a published opinion of a previous        Although Santobello discusses the consequences of a
panel. Court en banc consideration is required to overrule a      broken plea agreement, the case does not amplify the
published opinion of the court.”).                                parameters of what constitutes a breach. Various circuit court
                                                                  decisions, however, have addressed the issue since Santobello
B. The Michigan Court of Appeals’s application of                 was decided. This court has held that “[p]lea agreements are
   clearly established federal law was not objectively            contractual in nature. In interpreting and enforcing them, we
   unreasonable                                                   are to use traditional principles of contract law.” United
                                                                  States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). One
  Smith does not contend that the Michigan Court of Appeals       fundamental principle of contract interpretation is that
“arrive[d] at a conclusion opposite to that reached by [the       “primary importance should be placed upon the words of the
Supreme Court] on a question of law or . . . decide[d] a case     contract. Unless expressed in some way in the writing, the
differently than [the Supreme Court] has on a set of materially   actual intent of the parties is ineffective, except when it can
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,       be made the basis for reformation of the writing.”
413 (2000). His sole contention is that the Michigan Court of     11 Williston on Contracts § 31:4 (4th ed. 2000). Consistent
No. 02-2441                              Smith v. Stegall     9    10   Smith v. Stegall                             No. 02-2441

with the principle articulated by Williston, this court has held   in prison, therefore, could actually result in a longer term of
that the state will be held to the literal terms of the plea       imprisonment than a parolable life sentence.
agreement. United States v. Mandell, 905 F.2d 970, 973 (6th
Cir. 1990) (citing United States v. Kamer, 781 F.2d 1380,            This quirk in Michigan sentencing law supports the
1387 (9th Cir. 1986)).                                             conclusion that the prosecutor believed that a sentence of 70
                                                                   to 100 years in prison was the longest possible sentence that
   In the present case, the state promised Smith not to            Smith could receive. In other words, the prosecutor was not
recommend a life sentence. No promises were made,                  asking that the trial court sentence Smith either for a term of
however, that limited the prosecution’s ability to recommend       70 to 100 years or “for as long as possible under the law.”
any particular term of years. Michigan law provides that a         Instead, the prosecutor was recommending a term of 70 to
defendant convicted of second-degree murder “shall be              100 years because he believed that that was the longest
punished by imprisonment in the state prison for life, or any      possible sentence.
term of years, in the discretion of the court trying the same.”
Mich. Comp. Laws § 750.317. Because the state promised                Further support for this conclusion comes from the fact
only that it would not recommend a life sentence, one              that, at the sentencing hearing, the state recommended only a
reasonable interpretation of the plea agreement is that it left    term of years without reference to its written statement that
the prosecutor free to recommend a statutorily permissible         Smith should be sentenced for as long as possible. This
sentence of “any term of years,” which would include a term        suggests that the prosecution did not intend the statement in
of 70 to 100 years.                                                its sentencing brief to be interpreted as a recommendation of
                                                                   a life sentence.
  Smith contends, however, that the state went beyond
recommending a particular term of years by arguing that              Smith contends, however, that even if the prosecutor did
“[j]ustice demands that the Defendant be sentenced for as          not violate the literal terms of the plea agreement, the
long as possible under the law.” According to Smith, that          recommended sentence of 70 to 100 years was inconsistent
assertion was the functional equivalent of asking the court to     with “[t]he parties’ reasonable expectation, and certainly
impose a life sentence.                                            Smith and his counsel’s reasonable expectation, . . . that the
                                                                   prosecutor would not request a sentence that was the highest
   Smith’s argument, however, is based upon the assumption         possible or long enough that Smith would spend the rest of
that a sentence of parolable life is more severe than a sentence   his life in prison.” But this argument ignores the principle of
for a term of years. But the Michigan Court of Appeals has         contract interpretation, discussed above, that “[u]nless
explained that a defendant sentenced to a term of years is not     expressed in some way in the writing, the actual intent of the
eligible for parole until he or she has served the lower number    parties is ineffective, except when it can be made the basis for
(meaning that a defendant sentenced to a term of 70 to 100         reformation of the writing.” 11 Williston on Contracts § 31:4
years would not be eligible for parole until the 70 years had      (4th ed. 2000). Smith is therefore asking us to ignore the
lapsed), whereas a defendant sentenced to parolable life is        plain language of the plea agreement and instead to enforce
eligible for parole in 10 or 15 years, depending on when the       his own unwritten, subjective intent. This is not a permissible
offense was committed. People v. Carson, 560 N.W.2d 657,           method of contract interpretation.
662-63 (Mich. Ct. App. 1997). A sentence of 70 to 100 years
No. 02-2441                              Smith v. Stegall     11    12   Smith v. Stegall                           No. 02-2441

  Even if we could properly consider evidence of the parties’       the trial court’s question did not constitute a sentencing
subjective intent, Smith’s allegation that the sentencing           recommendation.
recommendation by the prosecutor conflicted with Smith’s
subjective understanding of the plea agreement is                     Ultimately, we must decide whether the Michigan Court of
questionable. The state recommended a term of 70 to 100             Appeals’s conclusion that the state did not breach the plea
years in its sentencing brief, at the sentencing hearing, and yet   agreement was objectively unreasonable. That court applied
again at the resentencing hearing. Yet Smith never objected         a standard principle of contract interpretation in focusing
on the ground that this recommendation violated the plea            exclusively on the unambiguous language of the plea
agreement, which suggests that the prosecution’s                    agreement. This court has followed the same approach when
recommendation was not contrary to his subjective                   interpreting plea agreements, which suggests that the
expectations.                                                       Michigan Court of Appeals’s methodology was not
                                                                    unreasonable. See United States v. Mandell, 905 F.2d 970,
   He also objects to the fact that the state informed the          973 (6th Cir. 1990). Whether we would have interpreted the
sentencing court that the victim’s family wanted Smith to           plea agreement differently if we had been in the shoes of the
receive a life sentence. Under Michigan law, however, family        Michigan Court of Appeals is irrelevant. A writ of habeas
members have the right to make their views known to the             corpus may issue only if the state court’s application of
sentencing court. See Mich. Comp. Laws § 780.765. The               clearly established federal law was objectively unreasonable.
prosecutor did not volunteer to speak on behalf on the              We conclude that it was not.
victim’s family, but was simply responding to a question by
the trial court. Moreover, as the Michigan Court of Appeals                            III. CONCLUSION
stated,
                                                                      For all of the reasons set forth above, we AFFIRM the
  the plea bargain [did not] restrict the prosecution’s             judgment of the district court.
  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
No. 02-2441                            Smith v. Stegall    13    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
                        DISSENT                                  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
  CLAY, Circuit Judge, dissenting. It is well-established that   970, 972 (6th Cir. 1990)). In return for the prosecutor’s
“the law does not permit a criminal defendant to bargain away    assurance not to recommend that he spend the rest of his days
his constitutional rights without receiving in return … the      in prison with no hope of release, Smith would relinquish his
benefit of his bargain ….” Bercheny v. Johnson, 633 F.2d         constitutional right to insist on a jury trial, as well as related
473, 476 (6th Cir. 1980); accord United States v. Blummet,       constitutional rights, and the possibility of an acquittal.
786 F.2d 720, 722 (6th Cir. 1986)). See also United States v.
Wesley, 13 Fed. Appx. 257, 259 (6th Cir. 2001) (“Plea              The State also expected to benefit from Smith’s plea to
agreements are subject to an analysis of the rights and duties   second degree murder. It would avoid the prospect of
of the parties similar to the law of contracts. Each party       spending considerable time and resources on a trial with no
should receive the benefit of his bargain.”) (citing United      guarantee of a conviction. In return, the State would
States v. McQueen, 108 F.3d 64 (4th Cir. 1997)); accord          relinquish its right to seek a sentence of life imprisonment
United States v. Taylor, 68 Fed. Appx. 614, 615 (6th Cir.        without parole, which would flow from a first degree murder
2003). Today’s majority opinion condones this prohibited         conviction.
practice.
                                                                    In violation of the parties’ bargain, the State recommended
  Like any defendant who enters a plea bargain, Kenneth          life imprisonment without parole when it recommended a 70
Smith expected to benefit from pleading guilty to second         to 100 year sentence. As the majority notes, in Michigan, a
degree murder as opposed to facing re-trial and a possible       defendant receiving a 70 year sentence generally is not
conviction for first degree murder. Under Michigan law, a        eligible for parole until 70 years of the sentence have elapsed.
person guilty of first degree murder must be punished by         Smith, who was 21 years old at the time of the offense, likely
“imprisonment for life,” MICH. COMP. LAWS. § 750.316(1),         would be over 90 years old by the time he would be eligible
which means a mandatory life sentence without the possibility    for parole from a 70 to 100 year sentence. It is highly
of parole. See People v. Hall, 242 N.W. 2d 377, 380 (Mich.       doubtful that he would survive to that age in prison, thereby
1976) (interpreting a conviction for first degree murder under   revealing the true nature of the State’s recommendation – life
MICH. COMP. LAWS. § 750.316 as requiring a “mandatory life       imprisonment without parole. See People v. Carson, 560
sentence (without possibility of parole …”)). By contrast, a     N.W.2d 657, 677 (Mich. Ct. App. 1996) (“[A] sentence of a
person guilty of second degree murder must be punished by        lengthy term of years that may prevent the Parole Board from
“imprisonment in the state prison for life[] or any term of      assuming jurisdiction, thus effectively constituting a life term
years,” MICH. COMP. LAWS. § 750.317, and may be eligible         without parole, is one of the most severe sentences a
for parole. E.g., People v. Bazzetta, No. 237756, 2003 WL        defendant may receive.”).
133060, at *3-*4 (Mich. Ct. App. Jan. 3, 2003). Thus, Smith
reasonably understood that the benefit of pleading guilty to a     The majority correctly notes that a sentence of 70 to 100
lesser charge would be (assuming the court followed the          years in prison could result in a longer term of imprisonment
prosecutor’s recommendation) avoidance of prison for life        than a parolable life sentence. I am puzzled, however, as to
No. 02-2441                               Smith v. Stegall     15    16   Smith v. Stegall                            No. 02-2441

how this “quirk in Michigan sentencing law” undermines               sentence” because the prosecutor did not use the word “life”
Smith’s argument. If indeed Smith would have been better             in her sentencing recommendation. This literal compliance
off with a parolable life sentence than a lengthy term of years,     with the agreement, however, did not translate into
the prosecutor’s promise not to recommend life imprisonment          substantive compliance. Smith relinquished his constitutional
in exchange for his guilty plea was utterly worthless.               rights attendant to a trial by jury in reliance on the promise
Certainly, Smith did not reasonably expect that he had               that the State would not recommend that he spend the rest of
relinquished his constitutional rights in exchange for no            his natural life behind bars. As shown above, the State did
benefit whatsoever. Moreover, the relevant comparison is not         not honor this promise, denying Smith the benefit of his
between the potential sentences Smith faced for second               bargain. I, therefore, would grant Smith’s habeas corpus
degree murder, but between (a) the 70 to 100 year sentence           petition because the Michigan courts’ denial of Smith’s
for second degree murder that the prosecution recommended            application for post-conviction relief involved an objectively
and (b) the nonparolable life sentence for first degree murder       unreasonable application of Santobello v. New York, 404 U.S.
that Smith reasonably expected to avoid by pleading guilty,          257 (1975), which held that a prosecutor must fulfill promises
i.e. a sentence that would require him to spend the rest of his      that induce a guilty plea. Id. at 262.
life behind bars. The fact that a sentence of parolable life
actually could result in less prison time than a 70-year term          I also have grave doubts about whether the prosecutor
shows that Smith was not concerned about a sentence of               breached the plea agreement when she disclosed the victim’s
parolable life per se, but any mandatory prison sentence that        family’s wishes that Smith receive a life sentence. At Smith’s
would extend to the end of his natural life. The most                sentencing, the court asked the prosecutor, “To your
straightforward way to address this concern was to have the          knowledge, is anyone else here to talk about sentencing?”
prosecution agree not to recommend imprisonment for life,            The prosecutor appropriately responded, “No, Your Honor.”
which is precisely the promise the prosecutor failed to fulfill.     But then she gratuitously added:

  I disagree that Smith’s failure to object to the prosecutor’s        For the record, I spoke to the victim’s family, his mother,
sentencing recommendation at the time of sentencing                    Cora Bennett; and his brother, Fred Brown; and, sister,
suggests that the recommendation was not contrary to Smith’s           Dolores Brown. They’ve informed me that they wish the
subjective expectations of the plea agreement. A more                  Defendant to receive life imprisonment. They did not
plausible interpretation of Smith’s silence – or, rather, that of      want to be here today. It was too painful for them to
his trial counsel – is that his attorney was constitutionally          have to go through this a second time 8 years after their
ineffective. Because Smith requested, but was denied, a                brother was, and son was murdered. They did not want
certificate of appealability on this issue, I do not believe it is     to see the Defendant again, so they are not here.
appropriate to hold his attorney’s failures against him on this
appeal.                                                              Because the court had asked only whether anyone else was
                                                                     present to talk about the sentencing, the prosecutor did not
  To conclude, the majority ignores the parties’ reasonable          “simply respond[] to a question by the trial court,” as the
expectations behind the plea agreement in favor of a                 majority states. If that were so, the prosecutor would have
formalistic interpretation that ignores context and common           gone silent after uttering the words “No, Your Honor.”
sense. True, as a purely literal matter, the State complied
with the agreement “not recommend life imprisonment as the
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.
