Key Takeaways
- An off the record plea promise that influences a plea remains significant, regardless of its absence in court records.
- Plea validity hinges on knowing, voluntary consent, and the clarity of all terms presented, including any informal assurances.
- If a sentence contradicts private representations, it raises issues of constitutional due process and could invalidate the plea.
- The absence of recorded assurances does not negate their relevance and can lead to claims of ineffective counsel or plea withdrawal.
- When private and public sentencing diverge, it undermines trust in the justice system and raises broader concerns about judicial and prosecutorial integrity.
QuickFAQs
No. A plea must be knowing, voluntary, and based on terms stated on the record. If a defendant relied on undisclosed assurances that later proved false, that can undermine the validity of the plea and raise constitutional concerns.
The Weight of What’s Missing
I was reviewing case files the way I always do. Not skimming. Not scanning. Reviewing.
Dates. Docket entries. Proofs of service. Sentencing transcripts. PSI references. Appellate triggers.
In law, timing is oxygen. Miss the right filing at the right moment and the consequences are not symbolic. An appeal can die. A deadline can close. A liberty interest can disappear.
A missing document is never just paperwork; it is a hinge.
In criminal cases, the record is supposed to function as the spine of the system. Every notice served. Every motion filed. Every promise stated. Preserved. Transparent. Verifiable.
But that raises a harder question: what happens when the missing document is not a proof of service or a motion? What happens when what is missing is the actual understanding that induced a plea?
What happens if the terms that shaped the decision to give up trial rights were captured somewhere else? In an email. In a hallway conversation. In a quiet assurance between counsel.
“Off the record? Don’t worry. I’ll honor the deal.”
What happens when the document that never makes it into the file is the promise itself?
The Doctrine Is Not Optional
Even if it’s not filed, an off-the-record promise that induces a plea is not harmless.
According to MCR 6.3021, a plea must be:
- Knowing
- Voluntary
- Based on terms either stated on the record or expressly disclaimed
That is not a preference. That is black-letter law rooted in due process.
Courts require plea colloquies precisely to ensure that no hidden inducements, side deals, or informal assurances distort a defendant’s decision. The record is supposed to reflect the whole bargain. If something is not on the record, the court typically requires the defendant to affirm that no other promises were made.
However, some courts will get around that by saying, something underhanded, like, “is there anything this court is not aware of” rather than asking about promises directly.
Because sadly, the system understands something simple: leverage works.
Why the Record Matters
The transcript is not bureaucratic theater. It is a safeguard. When a defendant enters a plea:
- The court must ensure it is voluntary.
- The defendant must confirm there are no undisclosed promises.
- The sentencing exposure must be clear.
- Any departure authority must be understood.
If a plea later collapses and the sentence reflects an upward departure that contradicts what the defense believed was promised, an off-the-record communication suddenly becomes highly relevant.
Not because it was filed; but because it was relied upon. A family made plans around it, a life was shaped to fit it. So what happens when the prosecution offered a hallow promise?
When the Plea Collapses
If sentencing contradicts what was privately represented, that communication becomes extremely relevant to:
- Whether the plea was induced under false pretenses
- Whether representations were inconsistent with what the court ultimately did
- Whether counsel’s advice rested on something that never made it into the record
That is not gossip or speculation, just structural analysis.
The validity of a plea hinges on informed consent. If consent was shaped by representations that evaporated once the plea was entered, courts are required to examine whether the plea was truly knowing and voluntary.
The Upward Departure Problem
And of course, you know I’m going to talk about upward departures.
If the sentencing court imposes a sentence beyond the anticipated range, and the defense reasonably believed that such a departure would not occur based on private assurances, the integrity of the plea framework is essentially sinking sand.
Why? Because plea bargaining is leverage-based negotiation conducted in the shadow of sentencing risk.
If that risk was misrepresented or informally neutralized off the record, and then later reintroduced at sentencing, that is not a minor procedural hiccup. That is a due process issue.
Why “It Wasn’t Filed” Doesn’t End the Conversation
There is a reflexive institutional defense that goes like this:
“If it’s not in the record, it doesn’t exist.”
That is tidy; convenient, even. But it is also legally incomplete.
Courts routinely consider:
- Ineffective assistance claims based on off-record advice
- Claims of inducement based on undisclosed promises
- Motions to withdraw pleas where reliance can be shown
The absence of filing does not eliminate relevance. It raises questions about disclosure, transparency, and whether the defendant’s understanding was distorted.
Structural Integrity vs. Institutional Comfort
The plea system resolves the vast majority of criminal cases in America. To the tune of 95%, in fact. As a result, it only functions if:
- Defendants trust that the terms discussed are real
- Counsel’s advice reflects enforceable reality
- Courts honor the boundaries discussed
When off-record assurances influence a plea but are not reflected in the final outcome, the problem is not technical. It is structural.
And structural flaws are not harmless.
When the Record Itself Cannot Be Trusted
The problem becomes exponentially more serious in jurisdictions where record integrity is already in question.
Consider a place like Barry County where:
- Proofs of service have been shown to be inaccurate or filed late,
- Mailing dates do not match docket entries,
- Critical filings appear after deadlines without explanation or never appear at all, and
- Court records “disappear” and/or contain visible alterations or correction fluid,
the phrase “it’s not in the record” loses its stabilizing force.
Because the record is supposed to be the safeguard.
- If proof of service is faulty, defendants may never receive the documents that trigger appellate deadlines.
- If entries are filed late, altered, or not at all, the procedural timeline becomes unreliable.
- If physical records show white-out or unexplained modifications, the chain of documentary integrity is compromised.
Now layer that on top of an off-the-record plea assurance.
In a system where the official record already contains inconsistencies, omissions, or irregular corrections, the absence of a promise from the transcript does not automatically prove it never existed.
It may only prove it was never preserved.
Due process assumes that the record accurately reflects reality. If the integrity of that record is itself questionable, courts must take claims of inducement, reliance, and undisclosed representations more seriously, not less.
Especially in smaller, rural counties where:
- The same institutional actors appear repeatedly across cases,
- Oversight is limited,
- Appellate scrutiny is rare, and
- Administrative processes lack transparency.
When documentary reliability is unstable, informal assurances carry greater risk. A defendant’s understanding may be shaped by communications that later disappear into procedural ambiguity.
That is not a minor clerical concern; it is a critical structural vulnerability.
In jurisdictions already facing documented recordkeeping irregularities, the legal system cannot rely solely on the absence of a written entry to dismiss claims of off-record inducement. The burden shifts from “prove it existed” to “prove the record can be trusted.”
And if the record cannot be trusted, neither can the plea that rests upon it.
Why This Case Matters
When private representations and public sentencing diverge, the issue is bigger than one defendant.
It touches:
- Judicial credibility
- Prosecutorial transparency
- Defense counsel competence
- Public trust in negotiated justice
If plea bargains become shadow agreements enforceable only until the sentencing hearing begins, the system stops being predictable. And unpredictability in criminal sentencing is not a minor administrative inconvenience. It is a constitutional concern.
The record is supposed to protect everyone. If it fails to capture what actually drove the plea decision, courts do not get to shrug and call it harmless.
Sources
- Bellin, J., & Turner, J. I. (2023). Sentencing in an era of plea bargains. NCL Rev., 102, 179.
- Boykin v. Alabama, 395 U.S. 238 (1969)
- Brady v. United States, 397 U.S. 742 (1970)
- Gormley, J. (2022). The inefficiency of plea bargaining. Journal of Law and Society, 49(2), 277-293.
- Lafler v. Cooper, 566 U.S. 156 (2012)
- Lynch, T. (n.d.). The devil’s bargain: How plea agreements never contemplated by the framers undermine justice. Cato Institute. https://www.cato.org/commentary/devils-bargain-how-plea-agreements-never-contemplated-framers-undermine-justice
- Santobello v. New York, 404 U.S. 257 (1971)
Legal Citations
- MCR 6.302(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 or defendants under oath and personally carry out subrules (B)-(E). ↩︎
