Massachusetts State House.
Policy Library

New Rule on Conditional Pleas

August 22, 2019

In February, in response to a request for public comment by the SJC on a proposed amendment to Rule 12 of the Mass. Rules of Criminal Procedure, addressing the use of conditional guilty pleas in criminal cases, the BBA submitted informal comments, on behalf of our Criminal Law Section, on a number of aspects of the rules.  Recently, the SJC adopted the final version of the rule, to take effect on September 1, and while much of what our commenters suggested went unaddressed in the final version, we did note that it adopts our recommendation that the rule clarify that such pleas are governed by the rules of appellate procedure.

Specifically, as we noted in our comments—drafted by the Criminal Law Section’s David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana, of the Suffolk County District Attorney’s Office—”The rule could be clarified to say that the normal rules of appellate procedure will apply to appeals taken from conditional guilty pleas. This may go without saying, but—particularly because this is such a new procedure—the parties should know that these appeals are governed by familiar rules. Several members of the section thought the new rule’s omission of any reference to the appellate rules could cause confusion.”

As noted by Massachusetts Lawyers Weekly (paywall), “Under the rule, a defendant may, with the prosecutor’s agreement, plead guilty (or in District or Juvenile courts admit to sufficient facts), appeal a ruling the defendant believes is erroneous, and, if successful on appeal, withdraw the plea (or the admission to sufficient facts) and presumptively obtain dismissal of the charge.”

Rangaviz, one of the authors of the BBA’s comments, expressed disappointment that the final rule retains a requirement for prosecutorial consent, which he believes will blunt the impact that the rule seems intended to have, but he acknowledged that there was disagreement within the section (as there often is) on this point, and others.  (When the BBA submits informal comments, it does so on behalf of its members but without taking a position on their merits.)  In addition to submitting comments, the BBA held a program this past March, moderated by Bruce Ferg of our Criminal Law Section, on the use of conditional guilty pleas in Massachusetts.

These changes were triggered in by the SJC’s 2018 decision in Commonwealth v. Gomez, where the Court exercised its superintendence power to conclude that a conditional guilty plea is permissible so long as it is entered with the consent of the court and the Commonwealth and so long as, at the time the plea is entered, the defendant specifies the specific pretrial ruling from which he or she intends to appeal.

You can read more about the changes to the rule, about our comments, and about the final rule.  We thank Kaushal and David, and the full Criminal Law Section, for their help in assembling our comments.

—Michael Avitzur
Government Relations Director
Boston Bar Association