(concurring in part and dissenting in part). I agree that the defendant’s guilty plea, having been accepted, cannot now be vacated at the request of the Commonwealth without violating principles of double jeopardy. However, the Commonwealth also had requested that a single justice of this court vacate the sentence and remand the case for resentencing consistent with the specific sentence set forth in the plea agreement between the Commonwealth and the defendant. I believe the Commonwealth is entitled to this remedy because it would not implicate double jeopardy, the defendant agreed to that outcome, *316and for the reasons set forth in my dissent in Commonwealth v. Rodriguez, ante 256, 265-277 (2012) (Spina, J., dissenting).
The court states “[t]he Commonwealth should have recognized that its agreed recommendation was made ‘with the specific understanding that the recommendation shall not be binding upon the court.’ ” Ante at 310, quoting Commonwealth v. Rodriguez, supra at 258, and Mass. R. Crim. P. 12 (b) (1) (B), as appearing in 442 Mass. 1511 (2004). The plea agreement contained no such specific understanding, and therefore it was not a plea agreement under that subsection. Consistent with decades of practice, the prosecutor and the defendant both recognized that their plea agreement was meant to be binding on the judge, if accepted.
The hearing on the plea tender began with defense counsel outlining the terms of the plea agreement. He spoke first about the Commonwealth’s charge concession. There was some uncertainty as to whether the parties had intended the defendant to complete level three or level four supervision through the office of community corrections on his release from the house of correction. Defense counsel reported that it was the prosecutor’s intent that the defendant be placed on the “bracelet, so it would be level four.” Counsel requested a recess to confer with the defendant, and a recess was granted.
After the recess the judge informed the defendant that “[t]he recommendation that your lawyer is going to make is the same that is going to be made by the prosecutor. If I don’t adopt the joint recommendation that’s being made to me, I’m going to allow you to withdraw the plea” (emphasis added). This is not the language used in Mass. R. Crim. P. 12 (c) (2) (A), as appearing in 442 Mass. 1511 (2004).1 This is language that a judge should, and generally does, use when considering a plea agreement under Mass. R. Crim. P. 12 (b) (1) (H), as appearing *317in 442 Mass. 1511 (2004), that is, one that contains an agreed recommendation that binds a judge, if accepted. The judge’s statement encompassed precisely what both parties expected to hear, namely, if the judge intended to deviate from the agreed recommendation he would make his intention known. Although he stated he would allow the defendant to withdraw his tendered plea, the defendant would have to withdraw his plea tender because he was bound by the terms of the plea agreement. If the defendant did not do so, the Commonwealth could then refuse to file its nolle prosequi. See Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 147 (2004).
When the judge signed the tender of plea form, he checked the box indicating he “rejectfed] defendant’s tender.” This is not consistent with his statement at the hearing, where he said he would “accept the plea.” His statement, recorded in the transcript of the plea hearing, is the one we must accept for purposes of double jeopardy, but his written statement on the plea tender form suggests that he understood that the parties intended the agreed recommendation to be binding, if accepted. The judge’s written rejection of the plea tender signified his rejection of the plea agreement. Unfortunately, the matter was mishandled and the hearing deteriorated. In the final analysis, the judge effectively modified the terms of the plea agreement by treating it as a nonbinding agreement, thereby usurping the executive function and violating art. 30 of the Massachusetts Declaration of Rights.
The court maintains that “ft]he Commonwealth relinquishes nothing where a defendant pleads guilty; it has simply obtained the guilty finding it would have sought at trial without the time and expense of a trial.” Ante at 309. The court understates what occurred here. The Commonwealth relinquished the right to proceed to the grand jury and seek a charge of armed robbery in the Superior Court. The Commonwealth relinquished its right not to have the case resolved in the District Court. The Commonwealth relinquished its right to seek a conviction of armed robbery after a trial. The Commonwealth relinquished much, much more than the “nothing” the court posits. Id.
The court further illuminates the role of the Commonwealth: “[I]n a plea colloquy, the Commonwealth’s only role is to *318provide the factual basis for the charge; at no point does the judge ask for or need the Commonwealth’s consent. The Commonwealth’s consent to a plea is relevant only where a defendant unilaterally attempts to plead to a lesser offense, thereby impermissibly modifying the prosecutorial charging decision.” Ante at 309. The court did indeed ask for the Commonwealth’s consent, when it adopted rule 12 (b) (1) (A), and thereby invited charge concessions. “[T]he charge before the judge” was not, as the court posits, “the lesser charge” of larceny from the person. Id. It was armed robbery. The Commonwealth’s consent was needed for a plea to the lesser charge, and the Commonwealth gave its consent on condition that the judge impose the agreed recommendation (provided the judge accepted the plea agreement and the plea tender). The partial nolle prosequi was not filed until after the judge accepted the plea. By not imposing the agreed sentence, or by not announcing that he would not be bound by the agreed recommendation, the judge impermissibly modified the prosecutorial charging decision. See id. This was a violation of art. 30.
Contrary to the court’s assertion, the defendant was not “entitled” to plead guilty to larceny from the person without the prosecutor’s consent. See id. As previously stated, he was facing a charge of armed robbery, not larceny from the person; the partial nolle prosequi was not filed until after the defendant’s plea had been accepted. The prosecutor’s consent to allow the defendant to plead guilty to the lesser included offense was contingent on imposition of the specific sentence agreed to by the defendant and the prosecutor. In addition, a plea hearing cannot proceed without the prosecutor’s presentation of a factual basis therefore, either by an informal recitation of facts or by presentation of witnesses. See Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 442 Mass. 1511 (2004); Reporters’ Notes to Rule 12, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure at 1438-1439 (LexisNexis 2011-2012).
The court dismisses the Commonwealth’s assertion that if it cannot enter into plea agreements that bind a judge (if accepted), it has no incentive to enter into plea negotiations that offer charge concessions. The court offers several reasons. Ante at 314-315. The first is that prosecutors have a “professional *319obligation to do justice,” and “justice may not always be done by seeking to maximize the length of a defendant’s sentence or by prosecuting the most serious charge.” Ante at 314 n.14. The plea agreement in this case was far from unjust. The defendant masterminded a plan to rob an acquaintance. The defendant telephoned the victim and told him he knew where they could buy some marijuana. The defendant and two other men picked up the victim and drove to an empty parking lot. One of the other men, named Wedmore, said the marijuana was in the trunk. When the victim and Wedmore went to the trunk of the car, Wedmore demanded the victim’s money, threatening to stab him if he did not surrender his cash. Wedmore then beat the victim until he turned over $220. The victim escaped by running through the nearby woods. There is nothing unjust or oppressive about the plea agreement,2 negotiations for which spanned several months because defense counsel needed that time to provide certain documents that she asked the prosecutor to consider in plea negotiations. The judge might have had a different view of what was fair and just in the circumstances, but if he disagreed, he simply had to say so and let the parties withdraw the plea agreement and the attendant plea tender.
The court next suggests that prosecutors have been making charge concessions on the mistaken assumption that judges are legally obliged to impose agreed-on sentences, or even the “reasonable expectation that judges usually will sentence defendants to agreed sentence recommendations.” Ante at 314-315. This will come as somewhat of a surprise to the countless judges, prosecutors, and defense lawyers who, for the past three decades, have conducted themselves with the understanding that judges must reject plea tenders if the judge intends to impose a sentence below the agreed recommendation. Plea tenders have been rejected on innumerable occasions based on this understanding. The prosecutors in this case and in the Rodriguez case certainly do not share the court’s restricted view of their experience. Moreover, the question here is not whether judges commonly impose sentences less severe than agreed sentencing recommendations. They do not. The question here is whether judges com*320monly announce in advance whether they will impose a sentence less severe than the agreed recommendation, and allow the parties to withdraw the plea agreement and the plea tender, because they consider themselves required to do so under rule 12. They do, indeed, and that has been the long-standing practice under rule 12 (b) (1) (H). What we have seen in this case and in Rodriguez is a new trend.
The court offers prosecutors a way to protect the Commonwealth’s interests: request a conference with the judge before entering into a plea agreement and ask if the judge would be inclined to accept the recommendation. Ante at 315. A curious feature of this approach is that it allows judges to obtain in advance all the necessary information to decide if they will impose the sentence to which the parties propose to agree. I believe that rule 12 already allows this to occur after a plea agreement has been made. See Commonwealth v. Rodriguez, supra at 258-259. However, the court has said judges cannot consider such information until after a plea has been accepted, at which time the court proceeds to sentencing. If this information can be presented to a judge informally before a plea agreement is made, it should be equally presentable after a plea agreement has been made. The solution offered by the court is inconsistent with the court’s holding. A second problem this approach creates is that it interjects the judge into the plea bargaining process, a role that is disfavored. See Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 750 (1989), and authorities cited. Finally, as the court notes, judges need not reveal their intention, but even if a judge is so inclined, it is not binding, as the court further notes. Ante at 315 n.15. It should come as no surprise if prosecutors take no comfort in the court’s suggestion.
The court makes an unfortunate comment when it says “the Commonwealth’s only role [in a plea colloquy] is to provide the factual basis for the charge.” Ante at 309. The prosecutor here was invited by rule 12 (b) (1) (A) to enter into a plea agreement that included a charge concession. The prosecutor took the serious step of making a substantial and very real charge concession that bound the Commonwealth. She was induced by rule 12 and by long-standing practice to believe that the judge would realize the significance of what she did and *321give it meaningful consideration. That meant allowing the process to reverse itself and restore the parties to their original positions if the judge were not inclined to accept the agreement. Instead, the judge gave no meaning to the charge concession that had been invited by rule 12 (b) (1) (A), and which benefited both the District and Superior Courts by disposing of a case without consuming the time needed for a trial. Today’s decision tells prosecutors that a concession has no meaning because the prosecutor would have made the charge concession in any event as part of his independent professional responsibility to do justice. Rule 12 effectively slams the door on prosecutors and “silenc[es] the people’s elected voice.” Commonwealth v. Gordon, 410 Mass. 498, 501 (1991).
A further complication that arises from the court’s interpretation of rule 12 can be seen in this case. Defense counsel was alerted to the judge’s inclination to go below the agreed recommendation, and she was thrown immediately into an ethical quandary: should she honor the plea agreement and ask the judge to impose the agreed recommendation, or should she press her client’s interests further and urge the judge to impose a sentence lower than what had been agreed? The judge did not discourage defense counsel from requesting a lower sentence, so counsel pursued the latter course and awkwardly hinted that a lower sentence might be more appropriate. Defense counsel dishonored the plea agreement. The problem inherent in the court’s reliance on Mass. R. Crim. P. 12 (c) (5) (C), as appearing in 442 Mass. 1511 (2004), is that there is generally little to be said at the “sentencing” stage in cases such as this. See ante at 313-314. The parties have exchanged all the necessary information between themselves, and they cannot be perceived as trying to undermine their agreement by arguing forcefully. They fully expect the judge to impose the agreed-on sentence because the judge accepted the plea tender and did not reject the terms of the plea agreement. This is precisely why a judge should elicit all pertinent sentencing information before accepting a plea.
For the foregoing reasons I respectfully dissent. I would direct the single justice to vacate the sentence and order imposition of the agreed recommendation. See Commonwealth v. Pelletier, 62 Mass. App. Ct. 145, 147 (2004).
Rule 12 (c) (2) (A) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1511 (2004), states:
“Contingent Pleas. If there were sentence recommendations contingent upon the tender of the plea, the judge shall inform the defendant that the court will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw the plea” (emphasis added).
The agreement called for a two-year sentence, six months to be served, followed by six months of ankle bracelet monitoring and other conditions.