NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

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).

11 See 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).

12 See 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 crossexamine; 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 

 

13 The 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.