The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 15, 2021
Plaintiff-Appellee,
v No. 347345
Livingston Circuit Court
ANTHONY ACKLEY, LC No. 17-024485-FH
Defendant-Appellant.
Before: GADOLA, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Following a bench trial, the circuit court convicted Anthony Ackley of assault of a prison
employee, MCL 750.197c(1), and sentenced him to a prison term of three to 10 years. This trial
should never have occurred. The circuit court improperly permitted the prosecutor to rescind the
plea agreement he made with Ackley, and Ackley’s trial counsel ineffectively failed to demand
specific performance of that agreement. We vacate Ackley’s conviction and sentence and remand
for further proceedings before a different trial judge.
I. BACKGROUND
The parties agree that Ackley is mentally ill and cognitively impaired. By age 23, when
he committed the assault on a prison guard giving rise to this case, he had spent most of his adult
life in prison. According to his counsel, Ackley was repeatedly raped while in the custody of the
Michigan Department of Corrections (MDOC) and did not feel safe within the prison. On the day
in question, Ackley rushed a guard, punching and scratching him because he wanted to call his
family and was frustrated that he had lost his phone privileges.
While awaiting trial on the assault charge, Ackley was evaluated by a psychologist at the
Center for Forensic Psychiatry and by an independent psychiatrist consulted by his counsel. The
psychologist determined that Ackley was competent to stand trial and later opined that he was not
criminally insane at the time of the assault. The psychiatrist found Ackley mentally ill, borderline
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in intellectual function, and not criminally responsible. The psychiatrist’s opinions likely
incentivized the prosecutor to enter into the parties’ plea deal.1
Defense counsel and the prosecutor negotiated a plea agreement permitting Ackley to plead
guilty but mentally ill and to serve a one-year sentence in the county jail followed by a period of
probation. On the day Ackley entered his plea, his counsel articulated that it had been his “goal
throughout this” that Ackley would serve his sentence in jail so that he did not have to return to a
prison setting. The assistant prosecuting attorney, Scott Ehlfeldt, concurred with the court’s
recitation that the parties had entered into “a sentence agreement of one year in the Livingston
County Jail” with a possible term of probation to be determined by the court. After establishing
Ackley’s competency to plead guilty to both the underlying charge and to fourth habitual offender
status, the court inquired, “Is everybody satisfied?” Ehlfeldt replied, “I am your Honor. I do want
to make one thing clear. And I did not write it on the form, I should have done that.” The
prosecutor proceeded to explain that “[w]hen we say one year - - it’s just prior experience when I
say one year Livingston County Jail that’s with no early release.” Defense counsel concurred.
During the plea colloquy, the trial court asked Ackley to describe his understanding of the
plea agreement and Ackley responded, “One year in the county jail.” The judge confirmed
Ackley’s awareness that the court did not have to follow the plea agreement, and advised him that
he would be allowed to withdraw his plea if the court imposed a sentence greater than one year in
jail. At the end of the hearing Ehlfeldt asked Ackley additional questions to nail down Ackley’s
fourth habitual offender status. With that, Ackley’s plea of guilty was formally accepted by the
court.
One month later, the parties appeared for sentencing. Ehlfeldt began the hearing by
backing out of the plea agreement:
Mr. Ehlfeldt: There are contents of the [preliminary sentence investigation]
report that I didn’t necessarily have in play at the time I made this bargain so I guess
I need to know quite honestly if the court’s not gonna adopt it I prefer we deal with
it at this point in time because he nut up [sic].
The Court: He might what?
Mr. Ehlfeldt: Kind of lose it a little bit.
Before the court answered, defense counsel entreated that the court abide by the agreement:
Defense Counsel: I’m hoping the Court will be understanding [sic] the
context of this multiple rape victim in the [MDOC] and his profound mental illness.
He would be - - and recognizing that we had a similar case on the of [sic] criminal
1
Plea deals benefit the prosecution by reducing the economic and manpower burdens associated
with trials and appeals, not to mention eliminating the uncertainty inherent in every jury-tried case.
Further, plea bargains permit the prosecutor to play an active and leading role in determining the
defendant’s sentence by offering a recommendation that courts generally follow.
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responsibility with opposing findings by the Forensic Center and my psychiatrist
that we came to a compromise with the guilty but mentally ill agreement with an
understanding that he would do a solid one year in the Livingston County Jail.
Mr. Ehlfeldt: That’s correct.
Defense Counsel: And it was a compromise. And my goal as - - I think I
made clear to you even before [Ehlfeldt] was on this case was my job is to do
everything I - - in my power to keep him from going back to MDOC. He’s maxed
out of that place. He’s - - obviously one of the most profoundly mentally ill
defendants that I’ve seen in my career. And I think that the - - we have given you
a sufficient basis for going along with the prosecutor’s recommendation. And I’m
hoping you will. [Emphasis added.]
Defense counsel thereby objected to the prosecutor’s effort to get out from under the plea
deal. Essentially, defense counsel begged the court to abide by the deal.
The trial court turned to Ehlfeldt and inquired, “Are you asking me to go along with this?”
Ehlfeldt responded, “I’m really really conflicted.” He expounded, “The issue that I’m having is
that there are - - the amount of misconducts that he had while in MDOC is kind of staggering.”
Ehlfeldt admitted that “there are issues of criminal responsibility I get it.” He expressed concern
that “we’re gonna see him again,” and stated that he was unaware of “[a] lot of his juvenile stuff[.]”
Defense counsel responded:
Sending him back to the environment where he’s been raped repeatedly is - - he has
all of these special offender notices in this file. Everywhere he goes in MDOC. I
didn’t prepare a sentencing memorandum for the Court in light of the fact that we
had a prosecutor’s sentence agreement. And I had provided you with
information . . . . Sending him back to where [he] was raped is like the worst thing
that could happen . . . . [A] year in the county with him on meds he hasn’t caused
[sic] meds while he’s been incarcerated in Manistee or here. And it’s a resolution
of the case without having a trial.
This was a second objection to the prosecutor’s effort to breach the plea agreement, and a second
request that the court disallow the prosecutor’s attempt to breach the contract.
Ehlfeldt then asked defense counsel, “Where’s he gonna live when he eventually gets out?”
After some discussion of that subject, the following critical colloquy occurred:
Defense Counsel: . . . And I know you have a lot of experience in that
before you were on the bench with the Community Mental Health. I recall that.
The (indecipherable) of not following through with the agreement that we
contemplated would be a trial. And the outcome is not certain. And as it is
plausible that the Court could find yourself in a situation of having to sentence a
person found guilty to an MDOC sentence and that option is, is trouble. I think we
found the compromise. And I want you to, to agree to sentence him in accordance
with what the prosecutor recommended at the time of the taking of the guilty but -
-
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The Court: Well I guess that - -
Defense Counsel: - - mentally ill - -
Mr. Ehlfeldt: The problem that I’m having is –
The Court: I guess my question here is are you asking me to follow this
plea - -
Mr. Ehlfeldt: And here’s where - -
The Court: The only way I’m going under the guidelines in this situation is
by plea agreement. [Emphasis added.]
Defense counsel’s request that the court sentence Ackley in accordance with the plea bargain was
a third objection to Ehlfeldt’s maneuvering.
Ehlfeldt continued to explain why he wanted to get out from under the plea agreement,
insisting that he was unaware of the extent of Ackley’s juvenile record and the number of
misconducts in his MDOC history. Defense counsel pointed out that Ehlfeldt had spoken about
the plea deal with the Prosecuting Attorney for Livingston County; Ehlfeldt admitted to having
done so.
Defense counsel implored, “This has been contemplated for months and months.” Ehlfeldt
asked the court for more time “to kind of look at this.” The court and the parties then discussed
the options available for other pleas and for mental health treatment. The court indicated that it
was planning to sentence Ackley to “five years probation,” presumably to follow the one-year jail
term. Ehlfeldt expressed concern about what would happen when Ackley was “under community
supervision.” He continued, “[I]f we leave here today imposing this sentence and give him
probation are we all gonna have this pit in our stomachs saying . . . are we gonna hear of something
up in Roscommon?”2 Notably, the court never expressed any discomfort with the agreed-upon
sentence of one year in jail.
Ultimately, the court and the attorneys agreed to adjourn the sentencing. Ehlfeldt
elaborated that the adjournment was “quite frankly . . . absolutely the People’s request. There are
as we discussed at the bench some troubling thing[s] that appeared [in the] presentence report that
have frankly added an additional layer on top of an already complicated situation.” Defense
counsel agreed to the adjournment.
The parties reconvened two months later. Ehlfeldt began as follows:
Your Honor, it’s - - as the Court may recall we adjourned this for several
weeks to kind of take a good hard look at where this case is at and the appropriate
sentence for the defendant. I know the Court gave some indication at the bench last
2
Ackley was from Roscommon.
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time we were here. After a lot of thought and a lot of conversation with my
supervisors I can’t ask the Court to honor the sentence agreement of one-year jail.
Defense counsel indicated that he had already discussed the matter with the prosecutor, understood
his position, and that Ackley understood “what his remedy is in light of this.” That remedy, the
court and counsel agreed, was to withdraw the plea. The court reiterated that “if this is no longer
a stipulated sentence or a sentence agreement I am not inclined to go along with it.”3
The court conducted a bench trial, found Ackley guilty but mentally ill, and sentenced him
to a minimum of three years in the Department of Corrections. Not surprisingly, the court selected
prison in part because it wanted to “keep[] the community safe”:
I think clearly Mr. Ackley suffers from mental illness. And I don’t necessarily agree
that the, that prison is the appropriate place for him, and that he’s necessarily gonna
get the appropriate treatment. But when I consider that together with the Court’s
responsibility in protecting the community and keeping the community safe. I think
ultimately the Court’s analysis of the community safety piece and the risk to the
community that I think Mr. Ackley poses whether it be unintentionally is too great
for this Court to consider a probationary sanction.
The court further supported its sentencing decision by referencing Ackley’s “conduct while he has
been incarcerated,” again echoing the prosecutor.
II. PLEA WITHDRAWAL
Ackley first contends that the trial court erred in allowing the prosecutor to withdraw from
the plea agreement. We agree that permitting the prosecutor to disavow the plea agreement was
error. Our analysis is complicated, however, because Ackley subsequently agreed to precisely the
same remedy—plea withdrawal.
“[C]riminal justice today is for the most part a system of pleas, not a system of trials.
Ninety-seven percent of federal convictions and [94%] of state convictions are the result of guilty
pleas.” Lafler v Cooper, 566 US 156, 170; 132 S Ct 1376; 182 L Ed 2d 398 (2012). Four decades
before the United States Supreme Court issued this pronouncement, the Court similarly recognized
the central role played by plea bargaining and deemed the bargains worthy of constitutional
protection. In Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971), the
Supreme Court declared 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.” Santobello instructs that a defendant has a due process right to
enforce the terms of the agreement in the face of a prosecutor’s breach. Accordingly, the
3
Although not entirely clear, the court seemed to indicate that but for the prosecution’s withdrawal
from the plea agreement, it had planned to sentence Ackley to one year in jail and five years of
probation. It bears emphasis that at no point did the court express that it had planned to disregard
the plea agreement if the prosecutor went along with it.
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prosecutor’s refusal to honor the terms of the agreement he had forged with Ackley’s counsel was
an error of constitutional magnitude.
The first layer of our analysis is the simplest, because the trial court clearly committed a
constitutional error in permitting the prosecutor to withdraw from the plea agreement over the
timely and forceful objections of counsel. The court rules provide limited circumstances in which
a plea agreement may be withdrawn, but none exist here. When a plea has been accepted but the
defendant has yet to be sentenced, MCR 6.310(B)(1) permits plea withdrawal on the defendant’s
motion or with the defendant’s consent, and subsection (2)(a) permits the defendant to seek
withdrawal if “the court states that it is unable to follow” the agreed-upon sentencing parameters.
MCR 6.310(E) provides the sole basis for a prosecutor to vacate a plea agreement and is
inapplicable here: “On the prosecutor’s motion, the court may vacate a plea if the defendant has
failed to comply with the terms of a plea agreement.” The court rules provided no mechanism for
the prosecutor to change his mind.
The prosecutor’s wrongful conduct deprived Ackley of his due process right to
enforcement of the plea bargain. By the time the prosecutor got cold feet, it was simply too late
to back out of the deal he had made. The prosecution had no legal right and no legal authority to
withdraw from its agreement. By green-lighting the prosecutor’s conduct, the court compounded
the constitutional error. Accordingly, we have no difficulty concluding that as the events unfolded
in the courtroom on the day that had been set for sentencing, the trial court should have advised
the prosecutor that he could not withdraw from the plea because Ackley’s counsel objected.
But ultimately Ackley choose a remedy: he withdrew his guilty plea. In Puckett v United
States, 556 US 129, 137; 129 S Ct 1423; 173 L Ed 2d 266 (2009), the Supreme Court explained
that a defendant aggrieved by a Santobello error has either of two remedies: specific performance
of the plea agreement in the trial court, or plea withdrawal. Ackley opted for plea withdrawal.4
When he did so, he extinguished the error arising from the prosecutor’s breach and the court’s
failure to force the government to live up to its bargain.
Ackley’s appellate counsel contends that counsel performed ineffectively in subsequently
recommending and acquiescing to plea withdrawal, as the only appropriate remedy under the
circumstances was specific performance. We agree and turn to an analysis of that argument.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To obtain relief under an ineffective assistance theory, a defendant must demonstrate that
his counsel’s performance fell below an objective standard of reasonableness and that but for
counsel’s deficient performance, there is a reasonable probability that a different outcome would
have obtained. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Both conditions are met here.
4
An argument can be made that Ackley’s counsel sought specific performance in the trial court
and that remedy was denied. But counsel never used those words and cited no law, including
Santobello, that would have pointed the court in the right direction.
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Counsel made it abundantly clear that he did not agree with the prosecutor’s change in
position regarding Ackley’s sentence. By doing so, he preserved an objection to the prosecutor’s
unconstitutional conduct. That objection should have triggered the trial court to order specific
performance of the plea. And had defense counsel understood the law, he would have recognized
that the only appropriate course of action under the circumstances was to insist on specific
performance of the plea bargain. Concomitantly, he would have specifically demanded that
remedy. Consistent with Santobello, Ackley then would have been sentenced by a judge who had
not heard the litany of reasons offered by Ehlfeldt in support of a prison sentence. 5 While an
untainted sentencing court may not have abided by the sentencing agreement, Ackley’s position
would have been no worse than it would have been had the prosecutor not withdrawn from it.
After all, “the touchstone of Santobello is whether the prosecution met its commitment and not
whether the court would have adopted the government’s recommendation[.]” Cohen v United
States, 593 F2d 766, 772 (CA 6, 1979).
A. INEFFECTIVE ASSISTANCE
In Santobello, the United States Supreme Court tasked the trial court with determining the
remedy for a breached plea agreement. The Court endorsed two potential remedies: specific
performance of the plea agreement, “in which case [the defendant] should be resentenced by a
different judge,” or the grant of an opportunity to withdraw the plea. Santobello, 404 US at 263.
The Supreme Court underscored the importance of the first remedy in Puckett, reiterating that
“rescission is not the only possible remedy; in Santobello we allowed for a resentencing at which
the Government would fully comply with the agreement—in effect, specific performance of the
contract.” Puckett, 556 US at 137. Specific performance is the preferred remedy in at least one
federal circuit. See United States v Clark, 55 F3d 9, 14 (CA 1, 1995).
Here, counsel’s ineffectiveness resided in his failure to insist on specific performance of
the plea agreement, with sentencing to be performed by a different judge.
Objectively, counsel’s decision to withdraw the plea qualifies as unreasonable. The record
supplies no evidence that the choice to go to trial rather than to enforce the plea deal was strategic.
Counsel never mentioned enforcement of the plea bargain; rather, he announced that Ackley
understood “what his remedy is in light of this,” signaling that he contemplated the existence of
only one remedy. Nothing in the record demonstrates that counsel understood the law governing
prosecutorial plea withdrawals, and that resentencing before a different judge was an option.
A trial was an exceptionally poor remedy, given that Ackley had no choice but to admit his
guilt and to hope for a verdict of not guilty by reason of insanity—a result rarely obtained. While
counsel had an expert regarding Ackley’s mental state at the time of the crime, it was an uphill
struggle. The prosecution, too, had an expert. And the evidence strongly suggested that the assault
was triggered by Ackley’s anger at not being allowed to make a phone call—a fact tending to
discredit an insanity plea. A reasonably effective attorney who appreciated the existence of the
5
See Santobello, 404 US at 263.
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specific performance route to relief would have taken it rather than embarking on a road likely to
lead to conviction.
Counsel’s legal investigation was incomplete and inadequate, resulting in his
ineffectiveness. Two months elapsed between the aborted sentencing hearing and Ackley’s
withdrawal of his plea. This was ample time in which to determine that specific performance
remained a viable remedy. “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 46 US at 690-691. Legal
investigations are as critical as factual ones, particularly in unusual cases. See, e.g., Padilla v
Kentucky, 559 US 356, 367; 130 S Ct 1473; 176 L Ed 2d 284 (2010); United States v Mooney, 497
F3d 397, 403 (CA 7, 2007). The only meaningful course of action available to Ackley was to
insist that the plea agreement be honored. Counsel’s choice to forego that option was both illogical
and ineffective.
B. PREJUDICE
It is impossible to know with absolute certainty whether a different judge would have
honored the plea bargain had the prosecutor stuck to it. But that is not the test. If counsel had
insisted on specific performance, Ackley would have been sentenced by a judge untainted by the
prosecutor’s breach. Returning the situation to the status quo ante would have resulted in the
sentencing court’s acceptance of the bargain or sentencing by a different and untainted judge—
and that suffices to demonstrate prejudice.
The prosecutor entered into an affirmative agreement to recommend a one-year jail
sentence. A prosecutor’s sentencing recommendation often carries considerable weight, and the
record validates the critical importance of the prosecutor’s sentencing position. Instead of
honoring that agreement, the prosecutor deliberately disowned the deal he himself had made,
vigorously arguing against it. When the prosecutor breached the plea agreement, the court
essentially confirmed that it would have abided by the sentencing arrangement agreed to by the
parties had the prosecutor endorsed it: “The only way I’m going under the guidelines in this
situation is by plea agreement.”
The prosecutor later urged a prison sentence, and the same judge who heard the initial
recommendation of a jail sentence ultimately imposed a prison sentence. The judge had approved
the guilty plea incorporating the jail sentence, yet also listened as the prosecutor emotionally
retracted it while simultaneously detailing a host of reasons for sentencing Ackley to prison. At
sentencing, the judge echoed in large measure the sentiments expressed by the prosecutor when he
negated the agreement. By advocating for a prison sentence, the prosecutor intended to influence
the trial court, and his efforts bore fruit.
In every sentencing decision post-guilty plea, the court makes an independent judgment.
But that judgment is influenced and informed by the parties’ agreement. Here, the prosecutor
advised the court that a one-year jail sentence was inappropriate due to Ackley’s juvenile and
prison records. Not only did the prosecutor breach the agreement, the prosecutor persuasively
advocated for a prison sentence partly based on the prosecutor’s belated and speculative
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assessment that Ackley would commit crimes post-release. Manifestly, this argument colored the
court’s decision when it finally sentenced Ackley to three to 10 years’ imprisonment.
“The integrity of our judicial system requires that the government strictly comply with its
obligations under a plea agreement.” United States v Mondragon, 228 F3d 978, 981 (CA 9, 2000).
Permitting the prosecution to reap the rewards of its misconduct is a gross injustice to Ackley and
licenses the prosecution to play fast and loose with the rules. Only Ackley bore the burden of the
government’s error, despite that the prosecutor blatantly violated Ackley’s rights. For these
reasons, we vacate defendant’s conviction and sentence and remand for further proceedings before
a different trial judge.
Given our resolution of Ackley’s challenges surrounding the rescission of the plea
agreement, we need not reach his challenge to the evidence at his trial.
We vacate Ackley’s conviction and sentence and remand for further proceedings before a
different trial judge consistent with this opinion. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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