Commonwealth v. Gomez

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SJC-12437

COMMONWEALTH vs. FRANKE GOMEZ.1

Middlesex. April 2, 2018. - August 10, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.

Practice, Criminal, Plea, Motion to suppress. Supreme Judicial
Court, Superintendence of inferior courts.

Indictments found and returned in the Superior Court
Department on November 18, 2014.

A pretrial motion to suppress evidence was heard by
Laurence D. Pierce, J., and a question of law was reported by
Peter B. Krupp, J., to the Appeals Court.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Dana Alan Curhan for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
David Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.

1 As is our practice, we spell the defendant's name as it
appears in the indictments.
 2

LOWY, J. In response to a reported question from a

Superior Court judge, we decide whether a defendant may enter a

guilty plea expressly conditioned on his or her right to appeal

from the denial of a motion to suppress evidence, otherwise

known as a conditional guilty plea. Although Mass. R. Crim. P.

12, as appearing in 470 Mass. 1501 (2015), does not specifically

authorize a conditional guilty plea and nothing in the language

of the rule or its amendments contemplates this approach,

neither does the rule or any statute prohibit such a plea. In

response to the reported question, we exercise our

superintendence power to conclude that a conditional guilty plea

is permissible if it is entered with the consent of the court

and the Commonwealth and identifies the specific ruling from

which the defendant intends to appeal. In light of our

decision, we ask this court's standing advisory committee on the

rules of criminal procedure (standing advisory committee) to

propose a suitable amendment to rule 12 to delineate the

requirements for conditional guilty pleas. In the interim, we

instruct judges and parties to follow the approach taken in Fed.

R. Crim. P. 11(a)(2).2

2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
 3

1. Background. a. Factual summary. After a hearing on

the defendant's motion to suppress, the motion judge found the

following facts. On October 6, 2014, a Framingham police

sergeant and detective stopped for dinner at a restaurant in

Framingham. Inside, they saw two men who were known to them,

the defendant and another man who they believed had an

outstanding warrant for his arrest. They then determined that

the man did not have an outstanding warrant, and left the

restaurant to return to their unmarked police cruiser.

From the cruiser, the officers continued to observe the

defendant as he left the restaurant and met a man later

identified as Alcides Zimmerman. The defendant reached into his

front right pants pocket; Zimmerman then did the same, and

handed the defendant some money. The officers saw the defendant

touch Zimmerman's hand two times, after which Zimmerman drove

away in his motor vehicle. The officers followed Zimmerman's

vehicle for one mile before executing an investigatory stop.

The sergeant asked Zimmerman, "Where is it?" and Zimmerman

responded, "In my pocket." Zimmerman reached his hand toward

his pocket, but the sergeant grabbed it and then reached his own

hand into Zimmerman's pocket, retrieving a small glassine bag

with a white powdery substance.

The officers arrested Zimmerman and then returned to the

restaurant where they had seen the defendant. They entered the
 4

restaurant with two additional officers. The defendant was

standing with another person, counting a large amount of money.

As the officers approached, the defendant reached toward his

waistband. The officers each grabbed one of the defendant's

arms and escorted him from the restaurant. The defendant was

"sweating profusely and appeared to be weak in the knees." He

moved and shook his body as if trying to remove something from

his waist. The officers pat frisked him and found a loaded

handgun. On searching him further, they found ammunition and

seven glassine bags, one of which had a substance resembling

heroin. The defendant was then arrested.

b. Prior proceedings. The defendant was indicted for

narcotics and firearm offenses.3 He moved to suppress the

evidence seized following the search of his person. A Superior

Court judge denied the motion after an evidentiary hearing; the

judge reasoned that the officers had conducted a proper

investigatory stop because they had reasonable suspicion that a

crime was being committed, and also reasonably suspected that

3 The defendant was charged with possession of a firearm
without a license, G. L. c. 269, § 10 (a); possession of a
loaded firearm, G. L. c. 269, § 10 (n); possessing ammunition
without a firearms identification card, G. L. c. 269, § 10 (h);
distribution of cocaine, G. L. c. 94C, § 32A (c); possession of
cocaine with the intent to distribute, G. L. c. 94C, § 32A (c);
and possession of heroin with the intent to distribute, G. L.
c. 94C, § 32 (a). He also faced sentencing enhancements for
being a second-time offender, G. L. c. 269, § 10 (d), and under
the armed career criminal statute, G. L. c. 269, § 10G (b).
 5

when they approached the defendant, he was reaching for a

weapon. Prior to the scheduled trial date, the defendant

"indicated he wishe[d] to plead guilty and avoid the costs of

trial, provided he [were] able to secure appellate review of the

ruling on the motion to suppress and to withdraw his plea if he

prevail[ed] on appeal." He argued that "the outcome of the

trial is a fait accompli, effectively determined by the

suppression ruling." The Commonwealth was initially amenable,

but ultimately would not agree to a conditional guilty plea. A

second Superior Court judge stayed the trial date and reported

the case to the Appeals Court in order to obtain an answer to

the following question:4

"To avoid a trial that is otherwise only required to
preserve appellate review of the denial of a dispositive
pretrial motion, may the Superior Court, with the
Commonwealth's agreement or over the Commonwealth's

4 See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501
(2004) ("If, prior to trial . . . a question of law arises which
the trial judge determines is so important or doubtful as to
require the decision of the Appeals Court, the judge may report
the case so far as necessary to present the question of law
arising therein. If the case is reported prior to trial, the
case shall be continued for trial to await the decision of the
Appeals Court"); Mass. R. A. P. 5, as amended, 378 Mass. 930
(1979) ("A report of a case for determination by an appellate
court shall for all purposes under these rules be taken as the
equivalent of a notice of appeal. Whenever a case or any part
of it is reported after decision or verdict, the aggrieved party
[as designated by the lower court] shall be treated as the
appellant. Whenever a case or any part of it is reported
without decision or verdict, the plaintiff in a civil action or
the defendant in a criminal case shall be treated as the
appellant").
 6

objection, accept a defendant's guilty plea and sentence
the defendant expressly conditioned on [the] defendant's
rights to appeal the denial of the specific dispositive
pretrial motion and to withdraw his/her plea if defendant
prevails on appeal?"

We transferred the case from the Appeals Court to this court on

our own motion.

2. Discussion.5 Ordinarily, a guilty plea "by its terms

waives all nonjurisdictional defects." Commonwealth v. Cabrera,

449 Mass. 825, 830 (2007). "This is because a counseled plea of

guilty is an admission of factual guilt so reliable that, where

voluntary and intelligent, it quite validly removes the issue of

factual guilt from the case" (citation, quotations, and

alterations omitted). Commonwealth v. Fanelli, 412 Mass. 497,

500 (1992). Accordingly, this court has repeatedly denied a

defendant's attempt to appeal from the denial of a suppression

motion after he or she has entered a guilty plea. See, e.g.,

5 The Commonwealth mentions in passing in its brief that the
issue before us is moot, because "the Commonwealth does not
agree to a guilty plea conditioned on reserving the defendant's
right to appeal the denial of his motion to suppress." Our
answer to the reported question in this case may render this
issue moot, since we conclude that conditional guilty pleas are
permissible only with the consent of the court and the
Commonwealth. "However, we make an exception to the general
rule against hearing moot claims in some cases because of the
public interest involved and the uncertainty and confusion that
exist" (citation, quotations, and alterations omitted). See
Matter of the Liquidation of Am. Mut. Liab. Ins. Co., 440 Mass.
796, 805 n.13 (2004). "We are most willing to make this
exception where, as here, the parties have fully briefed and
argued the issue." Id.
 7

Cabrera, 449 Mass. at 830-831; Commonwealth v. Quinones, 414

Mass. 423, 432, 435 (1993); Garvin v. Commonwealth, 351 Mass.

661, 663-664, cert. denied, 389 U.S. 13 (1967). These

decisions, however, were made in the context of unconditional

guilty pleas. See generally Cabrera, supra; Quinones, supra;

Garvin, supra. See also United States v. Limley, 510 F.3d 825,

827 (8th Cir. 2007) (pleas are presumptively unconditional).

This court has not yet considered whether a defendant may

preserve his or her right to appeal from the denial of a motion

to suppress at the time the defendant tenders a guilty plea.

a. Rule 12. Rule 12, which governs guilty pleas, is

silent regarding conditional guilty pleas. The rule permits a

defendant to enter a guilty plea, with or without an agreement

with the Commonwealth, and details the procedural requirements

in each circumstance. With regard to pleas that involve an

agreement with the Commonwealth, Mass. R. Crim. P. 12 (b) (5)

(A) expressly permits a plea agreement conditioned on a

particular sentence and charge concessions. The judge may

accept or reject such a plea agreement. If the judge accepts

the plea agreement and the defendant's plea, Mass. R. Crim. P.

12 (d) requires the judge to sentence the defendant according to

the terms of the plea agreement. Mass. R. Crim. P. 12 (d) (4)

(A). Therefore, rule 12 only explicitly recognizes pleas
 8

conditioned on dispositional terms, such as sentences and charge

concessions, as outlined in Mass. R. Crim. P. 12 (b) (5) (A).6

The language of rule 12 also differs significantly from

Fed. R. Crim. P. 11(a)(2), which has expressly permitted

conditional guilty pleas since 1983.7 See Advisory Committee

Notes to Rule 11 (1983), Federal Criminal Code and Rules, Rules

of Criminal Procedure, at 68-69 (Thomson Reuters 2018 rev. ed.).

The Federal rule states: "With the consent of the court and the

government, a defendant may enter a conditional plea of guilty

or nolo contendere, reserving in writing the right to have an

appellate court review an adverse determination of a specified

pretrial motion. A defendant who prevails on appeal may then

withdraw the plea." Fed. R. Crim. P. 11(a)(2).

Where rule 12 expressly differs from the comparable Fed. R.

Crim. P. 11, we have declined to interpret rule 12 according to

6 The defendant notes that Mass. R. Crim. P. 12 (b) (5) (B),
as appearing in 470 Mass. 1501 (2015), permits guilty pleas
"conditioned on . . . plea agreement[s] other than one described
in [r]ule 12 (b) (5) (A)." These types of plea agreements are
treated as "non-binding, joint recommendation[s]." Reporters'
Notes (Jan. 2015) to Rule 12 (b) (5), Mass. Ann. Laws Court
Rules, Rules of Criminal Procedure, at 1575 (2016). As
explained infra, however, the language and history of rule 12 as
a whole indicate that it cannot be reasonably interpreted to
contemplate conditional guilty pleas.

7 Prior to the amendment of Fed. R. Crim. P. 11 in 1983, the
Federal Courts of Appeals were divided on the permissibility of
conditional guilty pleas. See United States v. DePoli, 628 F.2d
779, 781 n.1 (2d Cir. 1980) (collecting cases).
 9

Federal standards. For example, in Commonwealth v. Dean-Ganek,

461 Mass. 305, 312 (2012), we recognized that, "'[i]n contrast

with Fed. R. Crim. P. 11, our rule 12 does not identify any plea

agreement where the recommendation shall bind the judge,' and

Fed. R. Crim. P. 11(c)(3) requires a judge at the plea hearing

to accept or reject a 'plea agreement' while our rule

12 (c) (5) (B) requires a judge at the plea hearing to accept or

reject 'the plea or admission,' not the plea agreement." See

Commonwealth v. Wilson, 430 Mass. 440, 442-443 (1999) (rejecting

Commonwealth's argument that Mass. R. Crim. P. 12 [f], which

prevents statements made in course of plea negotiations from

being admissible against accused, be interpreted to exclude only

statements from government attorneys, as is case under Federal

rules).

It is doubtful, then, that rule 12 can reasonably be

interpreted to allow for conditional pleas, particularly because

there is already an existing statute and rule that allows for a

defendant to seek leave from a single justice of this court to

take an interlocutory appeal from the denial of a motion to

suppress. See G. L. c. 278, § 28E; Mass. R. Civ. P. 15 (a) (2),

as appearing in 474 Mass. 1501 (2016). At the same time, "[a]

defendant only may apply for leave to pursue such an appeal, and

a single justice of this court, as a matter of discretion, may

allow such an application if the single justice determines 'that
 10

the administration of justice would be facilitated.'"

Commonwealth v. Ringuette, 443 Mass. 1003, 1004 (2004), quoting

Mass. R. Crim. P. 15 (a) (2). As rule 12 does not expressly

prohibit conditional guilty pleas, we consider the approaches

adopted in other jurisdictions, as well as the practical

implications of permitting such pleas.

b. Other jurisdictions. The majority of other States and

the District of Columbia allow conditional pleas in some form.8

8 See Cal. Penal Code §§ 1237.5, 1538.5(m); Conn. Gen. Stat.
§ 54–94a; Mont. Code Ann. § 46–12–204(3); Nev. Rev. Stat.
§ 174.035(3); N.Y. Crim. Proc. Law § 710.70; N.C. Gen. Stat.
§ 15A–979(b); Or. Rev. Stat. § 135.335(3); Tex. Code Crim. Proc.
Ann. art. 44.02; Va. Code § 19.2–254; Wis. Stat. § 971.31(10);
Ala. R. Crim. P. 26.9(b)(4); Ark. R. Crim. P. 24.3(b); D.C.
Super. Ct. R. Crim. P. 11(a)(2); Fla. R. A. P. 9.140(b)(2)(A);
Haw. R. Penal P. 11(a)(2); Idaho R. Crim. P. 11(a)(2); Ky. R.
Crim. P. 8.09; Me. R. Crim. P. 11(a)(2); Mich. R. Crim. P.
6.301(C)(2); N.J. R. Crim. P. 3:9–3(f); N.M. Dist. Ct. R. Crim.
P. 5–304.A(2); N.D. R. Crim. P. 11(a)(2); Ohio R. Crim. P.
12(I); Tenn. R. Crim. P. 37(b)(2)(A); Tex. R. A. P.
25.2(a)(2)(A); Utah R. Crim. P. 11(j); Vt. R. Crim. P. 11(a)(2);
W. Va. R. Crim. P. 11(a)(2); Wyo. R. Crim. P. 11(a)(2); Cooksey
v. State, 524 P.2d 1251, 1255–1256 (Alaska 1974), disapproved on
other grounds by Miller v. State, 617 P.2d 516, 519 n.6 (Alaska
1980); State v. Crosby, 338 So. 2d 584, 586–592 (La. 1976). The
Supreme Court of Pennsylvania has not definitively ruled on this
issue, but lower courts in Pennsylvania routinely permit
conditional guilty pleas. See Commonwealth v. Singleton, 169
A.3d 79, 82 (Pa. Super. 2017) (collecting cases).

Of the remaining States, fifteen do not allow conditional
guilty pleas. See State v. Zunino, 133 Ariz. 117, 118 (Ct. App.
1982); Neuhaus v. People, 2012 CO 65, ¶¶ 11-20; Hooten v. State,
212 Ga. App. 770, 775 (1994); People v. Gonzalez, 313 Ill. App.
3d 607, 618-619 (2000); Alvey v. State, 911 N.E.2d 1248, 1250
(Ind. 2009); State v. Freilinger, 557 N.W.2d 92, 93 (Iowa 1996);
State v. Kelly, 295 Kan. 587, 592 (2012); Bishop v. State, 417
 11

Five of these States have enacted statutes or rules specifically

exempting a motion to suppress evidence from the general rule

that a defendant forfeits certain appellate rights when entering

a plea of guilty or no contest.9 As the Commonwealth notes, most

States that permit conditional pleas do so by statute or rule.

See Neuhaus v. People, 2012 CO 65, ¶ 9. Just over one-half of

those jurisdictions modeled their statutes or rules on Fed. R.

Md. 1, 20 (2010); State v. Ford, 397 N.W.2d 875, 878 (Minn.
1986); State v. Liston, 271 Neb. 468, 471 (2006); State v.
Parkhurst, 121 N.H. 821, 822 (1981); State v. Keohane, 814 A.2d
327, 329 (R.I. 2003); State v. Downs, 361 S.C. 141, 145 (2004);
State v. Rondell, 2010 SD 87, ¶¶ 4-10; State v. Smith, 134 Wash.
2d 849, 853 (1998). The Illinois Appellate Court has, however,
"urge[d] the legislature or [the] supreme court to consider
instituting conditional pleas." Gonzalez, supra at 619.
Delaware, Mississippi, Missouri, and Oklahoma do not appear to
have addressed this issue.

9 See Cal. Penal Code § 1538.5(m) ("A defendant may seek
further review of the validity of a search or seizure on appeal
from a conviction in a criminal case notwithstanding the fact
that the judgment of conviction is predicated upon a plea of
guilty"); N.Y. Crim. Proc. Law § 710.70 ("An order finally
denying a motion to suppress evidence may be reviewed upon an
appeal from an ensuing judgment of conviction notwithstanding
the fact that such judgment is entered upon a plea of guilty");
N.C. Gen. Stat. § 15A–979(b) ("An order finally denying a motion
to suppress evidence may be reviewed upon an appeal from a
judgment of conviction, including a judgment entered upon a plea
of guilty"); Wis. Stat. § 971.31(10) ("An order denying a motion
to suppress evidence or a motion challenging the admissibility
of a statement of a defendant may be reviewed upon appeal from a
final judgment or order notwithstanding the fact that the
judgment or order was entered upon a plea of guilty or no
contest to the information or criminal complaint"); Ohio R.
Crim. P. 12(I) ("The plea of no contest does not preclude a
defendant from asserting upon appeal that the trial court
prejudicially erred in ruling on a pretrial motion, including a
pretrial motion to suppress evidence").
 12

Crim. P. 11(a)(2), which requires the consent of the court and

the government and also requires that the defendant specify the

pretrial motion from which he or she intends to appeal.10 Most

of the remaining States that have departed from the wording of

the Federal rule nonetheless require the consent of the court or

of the prosecutor (or both), and that the defendant specify the

motion from which he or she seeks to appeal.11

10 See D.C. Super. Ct. R. Crim. P. 11(a)(2); Haw. R. Penal
P. 11(a)(2); Idaho R. Crim. P. 11(a)(2); Mich. R. Crim.
P. 6.301(C)(2); N.J. R. Crim. P. 3:9-3(f); N.M. Dist. Ct. R.
Crim. P. 5–304A(2); N.D. R. Crim. P. 11(a)(2); Utah R. Crim. P.
11(j); Vt. R. Crim. P. 11(a)(2); W. Va. R. Crim. P. 11(a)(2);
Wyo. R. Crim. P. 11(a)(2); Mont. Code Ann. § 46–12–204(3); Nev.
Rev. Stat. § 174.035(3); Or. Rev. Stat. § 135.335(3); Va. Code
§ 19.2–254. Variances among these provisions are negligible for
our purposes. For example, Idaho, New Jersey, North Dakota, and
Virginia only permit conditional guilty pleas, not conditional
"no contest" pleas. See Va. Code § 19.2–254; Idaho R. Crim. P.
11(a)(2); N.J. R. Crim. P. 3:9–3(f); N.D. R. Crim. P. 11(a)(2).
Michigan, Nevada, and Utah permit conditional "guilty but
mentally ill" pleas in additional to conditional guilty and
conditional no contest pleas, and Michigan also permits
conditional "not guilty by reason of insanity" pleas. See Nev.
Rev. Stat. § 174.035(3); Mich. R. Crim. P. 6.301(C)(2); Utah R.
Crim. P. 11(j). Montana does not specify that the plea must be
in writing or otherwise on the record. Mont. Code Ann. § 46–12–
204(3).

11See Cal. Penal Code §§ 1237.5, 1538.5(m) (requires
court's "certificate of probable cause" for appeal of particular
motion); Conn. Gen. Stat. § 54–94a (limited to motions to
suppress and motions to dismiss, and requires trial court first
to ensure that motion from which defendant seeks to appeal is
dispositive); N.C. Gen. Stat. § 15A–979(b) (does not require
consent of court or prosecutor); N.Y. Crim. Proc. Law
§ 710.70(2) (does not require consent of court or prosecutor);
Tex. Code Crim. Proc. Ann. art. 44.02 (only requires consent of
court); Wis. Stat. § 971.31(10) (does not require consent of
 13

A handful of State courts have also recognized conditional

guilty pleas "despite the absence in those jurisdictions of any

authorizing court rule or statute." State v. Sery, 758 P.2d

935, 939–940 (Utah Ct. App. 1988). Alaska and Louisiana

currently permit conditional pleas exclusively by judicial

decision, and at least five other States (Alabama, Florida,

Michigan, New Mexico, and Utah) first recognized conditional

guilty pleas by judicial decision and thereafter promulgated

court rules permitting such practices.12 See id.; Neuhaus, 2012

court or prosecutor, but limited to "motion to suppress evidence
or a motion challenging the admissibility of a statement"); Ala.
R. Crim. P. 26.9(b)(4) (does not require consent of court or
prosecutor, but requires defendant to specify motion for
appeal); Ark. R. Crim. P. 24.3(b) (requires consent of court and
prosecutor, limited to appeal of motions to suppress, speedy
trial issues, and constitutional challenges of statutes defining
offenses charged); Fla. R. A. P. 9.140(b)(2)(A) (does not
require consent of court or prosecutor, but requires defendant
to specify motion and issue for appeal); Ky. R. Crim. P. 8.09
(requires court approval and requires defendant to specify
motion for appeal); Ohio R. Crim. P. 12(I) (does not require
consent of court or prosecutor); Tenn. R. Crim. P. 37(b)(2)(A)
(requires consent of court and prosecutor and that defendant
reserve "right to appeal a certified question of law that is
dispositive of the case"); Tex. R. A. P. 25.2(A) (only requires
consent of court).

12See Ginn v. State, 894 So. 2d 793, 801-804 (Ala. Crim.
App. 2004); Cooksey, 524 P.2d at 1255–1256; State v. Ashby, 245
So. 2d 225, 228-229 (Fla. 1971); Crosby, 338 So. 2d at 586–592;
People v. Reid, 420 Mich. 326, 337 (1984); State v. Hodge, 1994-
NMSC-087118, ¶ 18; State v. Sery, 758 P.2d 935, 938–940 (Utah
Ct. App. 1988); Ala. R. Crim. P. 26.9(b)(4); Fla. R. A. P.
9.140(b)(2)(A); Mich. R. Crim. P. 6.301(C)(2); N.M. Dist. Ct. R.
Crim. P. 5–304.A(2); Utah R. Crim. P. 11(j).
 14

CO 65, ¶ 9A n.5. Conditional guilty pleas "were also accepted

by two [F]ederal circuits long before the 1983 adoption of Fed.

R. Crim. P. 11(a)(2)." Sery, supra at 939-940, citing United

States v. Moskow, 588 F.2d 882 (3d Cir. 1978), and United States

v. Burke, 517 F.2d 377 (2d Cir. 1975).

c. Practical considerations. Without the availability of

a conditional guilty plea and due to the limited availability of

interlocutory review, a defendant typically must proceed to

trial in order to preserve his or her appellate rights, even if

the defendant desires only to appeal from a particular pretrial

ruling. See, e.g., Fanelli, 412 Mass. at 500. As the United

States Supreme Court has recognized, this is a "completely

unnecessary waste of time and energy." Lefkowitz v. Newsome,

420 U.S. 283, 292 (1975). See Advisory Committee Notes to Rule

11 (1983), Federal Criminal Code and Rules, Rules of Criminal

Procedure, supra at 68 ("a defendant who has lost one or more

pretrial motions will often go through an entire trial simply to

preserve the pretrial issues for later appellate review. This

results in a waste of prosecutorial and judicial resources, and

causes delay in the trial of other cases . . . . These

Georgia initially authorized conditional pleas by judicial
decision but subsequently reversed the decision. See Hooten v.
State, 212 Ga. App. 770, 775 (1994); Mims v. State, 201 Ga. App.
277, 278-279 (1991).
 15

unfortunate consequences may be avoided by the conditional plea

device . . .").

The Commonwealth argues that there is no need for

conditional guilty pleas because of the availability of

stipulated evidence trials. In such proceedings, a defendant

stipulates "that the Commonwealth's witnesses [will] testify in

the manner asserted by the prosecutor," and thereby expedites

the trial and purportedly saves resources. See Commonwealth v.

Garcia, 23 Mass. App. Ct. 259, 264-265 (1986). This procedure

is disfavored. See Commonwealth v. Castillo, 66 Mass. App. Ct.

34, 37 (2006); Commonwealth v. Babcock, 25 Mass. App. Ct. 688,

691 (1988). See also E.B. Cypher, Criminal Practice and

Procedure § 24:13, at 293 n.1 (4th ed. 2014) (collecting cases).

This is because a trial based on stipulated evidence is

incapable of supporting a conviction without a comprehensive

colloquy itemizing the rights surrendered, confirming that the

defendant understands the significance of the rights he or she

gives up in a stipulated trial, and ensuring that the defendant

intelligently and voluntarily relinquishes those rights. See

Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 287-288 (2009),

citing Commonwealth v. Stevens, 379 Mass. 772, 776 (1980).

Specifically, in a stipulated evidence trial, the trial

judge should "question the defendant whether he recognizes that

1) he is entitled to confront witnesses against him; 2) the
 16

Commonwealth has the burden of proving the offense beyond a

reasonable doubt; 3) he may be giving up the right not to

incriminate himself; 4) he is giving up the right to cross-

examine; and 5) . . . he is acknowledging evidence likely to

lead to a finding of guilty" (citation omitted). Monteiro, 75

Mass. App. Ct. at 289. At the same time, the judge must take

care not to ask whether the defendant is pleading guilty. See

Castillo, 66 Mass. App. Ct. at 37 n.4. If the judge elicits a

guilty plea during such a proceeding, the defendant will have

waived the very appellate rights he or she sought to preserve

through a stipulated evidence trial. The defendant also must be

careful not to "stipulate[] to the truth of facts which

constitute[] all the elements of the offences charged and [are]

conclusive of guilt," in order to avoid constructively pleading

guilty and thereby waiving his or her appellate rights. Garcia,

23 Mass. App. Ct. at 265. See Commonwealth v. Brown, 55 Mass.

App. Ct. 440, 448-449 (2002).

Not infrequently, the parties or the judge makes mistakes

during the colloquy at a stipulated evidence trial. See, e.g.,

Monteiro, 75 Mass. App. Ct. at 288 (trial judge failed to warn

defendant of right to cross-examination, to call own witnesses,

and to confrontation, and of right not to incriminate himself);

Castillo, 66 Mass. App. Ct. at 37 ("There is nothing in this

record that demonstrates that the defendant was aware of the
 17

significance of a trial based on stipulated evidence or that he

was aware of any constitutional rights he was waiving"); Brown,

55 Mass. App. Ct. at 448-449 ("The stipulation was tantamount

to a guilty plea. . . . The jury waiver colloquy that [the

defendant] received did not contain critical elements that must

be included in a guilty plea colloquy").

Even when conducted correctly, however, a stipulated

evidence trial constitutes a flawed procedure. A stipulated

evidence trial is confusing to the defendant and to members of

the public, as it is a legal fiction rather than an actual

trial. "Although there is a remote theoretical possibility that

the defendant may be acquitted, the reality is that factual

guilt is a foregone conclusion. After all, neither a reasonable

defendant nor a prosecutor would choose to pursue a stipulated

bench trial (or guilty plea) if the evidence is doubtful."

People v. Gonzalez, 313 Ill. App. 3d 607, 617 (2000). "A

stipulated bench trial is, in reality, nothing more than a

glorified guilty plea that wastes precious judicial resources

and is likely to be misunderstood . . . ." Id. at 618.

As a practical matter, a stipulated jury trial is available

to a defendant to preserve appellate review from a denial of a

motion to suppress evidence. In reality, the required colloquy

turns out to be difficult to do, and even if the colloquy is

sufficient, it does not necessarily provide a realistic
 18

alternative to a conditional plea. For example, for a

defendant, a stipulated evidence trial presents a more limited

opportunity to negotiate a sentence or charge concessions. For

a prosecutor, the procedure is rife with procedural pitfalls

that "expose[] a conviction to recantation and subsequent

proceedings far more onerous than the original administration of

the warning." Monteiro, 75 Mass. App. Ct. at 288.

A conditional guilty plea, on the other hand, facilitates

plea bargaining. See Gonzalez, 313 Ill. App. 3d at 618. See

also United States v. Mezzanatto, 513 U.S. 196, 208 (1995)

("Indeed, as a logical matter, it simply makes no sense to

conclude that mutual settlement will be encouraged by precluding

negotiation over an issue that may be particularly important to

one of the parties to the transaction. A sounder way to

encourage settlement is to permit the interested parties to

enter into knowing and voluntary negotiations without any

arbitrary limits on their bargaining chips"). Moreover, victims

of crime may derive vindication from a defendant's willingness

to concede guilt, even if the defendant preserves limited issues

for appeal; without the option of a conditional guilty plea,

fewer defendants will have incentives to plead guilty.

The Commonwealth argues that a conditional guilty plea

undermines the finality of a defendant's plea. This concern is

not without merit. On the other hand, conditional guilty pleas
 19

inevitably result in more guilty pleas. A defendant who may

want to agree to an offer by the Commonwealth if his or her

motion to suppress is denied, but does not plead guilty because

the defendant wants to first litigate that motion to suppress,

would have another option –- a conditional plea -– if the

Commonwealth and the court agreed to the procedure. In

addition, while a conditional guilty plea "does not have the

complete finality of an unconditioned plea, . . . it still

results in a judgment of conviction, not an interlocutory order.

That judgment is as final as any conviction after trial that

might be reversed on direct appeal." See Sery, 758 P.2d at 939.

See also Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564,

573 (1980) (Conditional Guilty Pleas).

Some courts in other jurisdictions have determined that it

is inconsistent to plead guilty and yet preserve certain

appellate rights. See, e.g., Hooten v. State, 212 Ga. App. 770,

773 (1994). Even an unconditional guilty plea does not

foreclose all appellate rights, however. See, e.g.,

Commonwealth v. Lavrinenko, 473 Mass. 42, 55-56 (2015)

(ineffective assistance of counsel claim can survive guilty

plea); Commonwealth v. Negron, 462 Mass. 102, 105 (2012)

("defendant is not barred by his guilty plea from bringing an

appeal or collateral challenge to his conviction on the ground
 20

that the conviction violated the prohibition against double

jeopardy").

Any suggestion that the allowance of conditional guilty

pleas would overwhelm the appellate courts seems unlikely.

While some increase in the courts' caseload is certainly

possible, the requirement that a defendant obtain the consent of

the Commonwealth and the court will generally ensure that

frivolous issues are not reserved for appeal. In any event,

"allowing conditional pleas would undoubtedly reduce claims of

ineffective assistance of counsel that frequently arise in

appeals from stipulated bench trials." Gonzalez, 313 Ill. App.

3d at 619. And, in addition, "[e]xperience with conditional

pleas in New York and California indicates that a relatively

small number of additional appeals are generated; no 'flooding'

of appellate courts has resulted." See Conditional Guilty

Pleas, supra at 573.

The Federal rules include certain safeguards to protect

against many of the Commonwealth's concerns, namely

(1) requiring the consent of the court and the government,

(2) requiring that the reservation of appellate rights be made

in writing at the time the plea is entered, and (3) requiring

the defendant to specify at the time the plea is entered which

pretrial motion he or she intends to appeal. Fed. R. Crim. P.

11(a)(2). See Note, "A Pious Fraud": The Prohibition of
 21

Conditional Guilty Pleas in Rhode Island, 17 Roger Williams U.

L. Rev. 480, 498 (2012).

Though not required by the express language of Fed. R.

Crim. P. 11 (a) (2), Federal Courts of Appeals that have reached

the issue have interpreted the Federal rule to require that the

pretrial motion from which a defendant seeks to appeal be

dispositive. See, e.g., United States v. Bundy, 392 F.3d 641,

647 (4th Cir. 2004); United States v. Wise, 179 F.3d 184, 186

(5th Cir. 1999); United States v. Bentz, 21 F.3d 37, 42 (3d Cir.

1994); United States v. Yasak, 884 F.2d 996, 999 (7th Cir.

1989); United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d

Cir. 1989); United States v. Carrasco, 786 F.2d 1452, 1454 (9th

Cir. 1986), overruled on other grounds by United States v.

Jacobo-Castillo, 496 F.3d 947 (9th Cir. 2007). "The essential

problem created by use of the conditional guilty plea when the

issues reserved are not dispositive is that further judicial

proceedings will be required if the defendant prevails on

appeal," resulting in further delay. See Walters v. State, 197

P.3d 1273, 1278 (Wyo. 2008). Accord State v. Madera, 198 Conn.

92, 101 (1985). Additionally, nondispositive issues may not be

capable of resolution without a trial record, and the lack of

such a record on appeal would make it impossible for a court to

conduct harmless error analysis. See Walters, supra at 1278-

1279. In light of these considerations, it shall be within the
 22

motion judge's discretion to require that the motion from which

the defendant seeks to appeal be dispositive.13

We therefore exercise our superintendence powers, G. L.

c. 211, § 3, in deciding that a conditional guilty plea is

permissible, so long as it is entered with the consent of the

Commonwealth and the court, and the defendant specifies the

pretrial motion from which he or she seeks to appeal at the time

the plea is entered. We ask this court's standing advisory

committee to propose a rule reflecting these requirements for

this court's consideration, taking into consideration other

issues related to the adoption of this procedure. See

Commonwealth v. Hanright, 465 Mass. 639, 648-649 (2013). In the

interim, we adopt the approach taken by Federal courts

concerning conditional guilty pleas. See id.

3. Conclusion. We answer the reported question, "Yes,"

temporarily adopting the procedures utilized in Federal court

under Fed. R. Crim. P. 11(a)(2), until Mass. R. Crim. P. 12 is

amended consistent with this opinion. We ask this court's

standing advisory committee on the rules of criminal procedure

13The Commonwealth argues that a conditional guilty plea
"may reduce the effectiveness of appellate review due to the
lack of a full trial record, and vitiates the harmless error
doctrine by forcing consideration of alleged errors which have
not practically wronged the defendant." As explained above,
however, the motion judge has discretion to limit the
defendant's appeal to dispositive issues, and may consider the
completeness of the record when making this determination.
 23

to propose an amendment to rule 12 accordingly. The matter is

remanded to the Superior Court for further proceedings

consistent with this opinion.

So ordered.