Rules of Criminal Procedure  Criminal Procedure Rule 12: Pleas and plea agreements

(1) Pleas that may be entered and by whom 

A defendant may plead not guilty, or guilty, or with the consent of the judge, nolo contendere, to any crime with which the defendant has been charged and over which the court has jurisdiction. A plea of guilty or nolo contendere shall be received only from the defendant personally except pursuant to the provisions of Rule 18(b).  Pleas shall be received in open court and the proceedings shall be recorded.  If a defendant refuses to plead or if the judge refuses to accept a plea of guilty or nolo contendere, a plea of not guilty shall be entered.

(2) Admission to sufficient facts

In a District Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.

(3) Acceptance of plea of guilty, a plea of nolo contendere, or an admission to sufficient facts

A judge may accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts only after first determining that it is made voluntarily with an understanding of the nature of the charge and the consequences of the plea or admission. A judge may refuse to accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts.

(1) In general

The defendant may tender a guilty plea, a plea of nolo contendere, or an admission to sufficient facts to warrant a finding of guilty without entering into a plea agreement with the prosecutor. Alternatively, if the defendant intends to tender a plea of guilty or an admission to sufficient facts, the prosecutor and the defendant may enter into a plea agreement pursuant to Rule 12(b)(5).

(2) Plea discussions

The judge may participate in plea discussions at the request of one or both of the parties if the discussions are recorded and made part of the record.

(3) Inquiry as to the existence of a plea agreement

After being informed that a defendant intends to plead guilty or to admit to sufficient facts, the judge shall inquire as to the existence of a plea agreement.

(4) Pleas without an agreement

If the defendant intends to plead guilty or nolo contendere or to admit to sufficient facts and there is no agreement under Rule 12(b)(5), the judge shall follow the procedures set forth in Rule 12(c).

(5) Pleas conditioned upon an agreement

The defendant may enter into a plea agreement with the prosecutor if the defendant intends to plead guilty or admit to sufficient facts but not if the defendant intends to plead nolo contendere.

(A) A plea agreement may specify both that the parties agree on a specific disposition, including the length of any term of probation, and that the prosecutor will make one or more of the following charge concessions: amend an indictment or complaint; dismiss, reduce, or partially dismiss charges; not seek an indictment; or not bring other charges. The judge shall follow the procedures set forth in Rule 12(d) when the parties enter into a plea agreement that includes both an agreement to a specific disposition and a charge concession. If the judge accepts the plea agreement and the defendant's plea, Rule 12(d) requires the judge to sentence the defendant according to the terms of the plea agreement.

(B) When the plea is conditioned on a plea agreement other than one described in Rule 12(b)(5)(A), the judge shall follow the procedures set forth in Rule 12(c).

(6) Pleas reserving appellate review

With the written agreement of the prosecutor, the defendant may tender a plea of guilty or an admission to sufficient facts while reserving the right to appeal any ruling or rulings that would, if reversed, render the Commonwealth's case not viable on one or more charges. The written agreement must specify the ruling or rulings that may be appealed, and must state that reversal of the ruling or rulings would render the Commonwealth's case not viable on one or more specified charges. The judge, in an exercise of discretion, may refuse to accept a plea of guilty or an admission to sufficient facts reserving the right to appeal. If the defendant prevails in whole or in part on appeal, the defendant may withdraw the guilty plea or the admission to sufficient facts on any of the specified charges. If the defendant withdraws the guilty plea or the admission to sufficient facts, the judge shall dismiss the complaint or indictment on those charges, unless the prosecutor shows good cause to do otherwise. The appeal shall be governed by the Massachusetts Rules of Appellate Procedure, provided that a notice of appeal is filed within thirty days of the acceptance of the plea.

(1) Disclosure of the terms of any plea agreement

If the parties have entered into a plea described in Rule 12(b)(5)(B), the parties shall disclose the terms of that agreement on the record in open court unless the judge for good cause allows the parties to disclose the terms of the plea agreement in camera on the record.

(2) Tender of plea

The defendant's plea or admission shall be tendered to the judge.

(3) Colloquy

The judge shall:

(A) Provide notice to the defendant of the consequences of a plea

The judge shall inform the defendant:

(i)

that by a plea of guilty or nolo contendere, or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination;

(ii)

of the maximum possible sentence on the charge, and, if applicable,

(a) any different or additional punishment based upon subsequent offense provisions of the General Laws;

(b) that the defendant may be subject to adjudication as a sexually dangerous person and required to register as a sex offender;

(c) the mandatory minimum sentence on the charge; and

(d) that a conviction or plea of guilty for an offense listed in G.L. c. 279, § 25(b) implicates the habitual offender statute, and that upon conviction or plea of guilty for the third or subsequent of said offenses: (1) the defendant may be imprisoned in the state prison for the maximum term provided by law for such third or subsequent offense; (2) no sentence may be reduced or suspended; and (3) the defendant may be ineligible for probation, parole, work release or furlough, or to receive any deduction in sentence for good conduct;

(iii)

that, if the defendant is not a citizen of the United States, the guilty plea, plea of nolo contendere, or admission may have the consequence of deportation, exclusion of admission, or denial of naturalization.

(B) Factual basis for the charge

The prosecutor shall present the factual basis of the charge.

(C) Rights of victims and witnesses of crimes

If applicable, the judge shall inquire of the prosecutor as to compliance with the requirements of G.L. c. 258B , Rights of Victims and Witnesses of Crimes. At any time prior to imposing sentence, the judge shall give any person entitled under G.L. c. 258B to make an oral and/or written victim impact statement the opportunity to do so.

(4) Disposition requests

(A) When there is no agreed-upon recommendation as to disposition

The judge shall give both parties the opportunity to recommend a disposition to the judge. In the District Court, the judge shall inform the defendant that the disposition imposed will not exceed the terms of the defendant's request without first giving the defendant the right to withdraw the plea. In the Superior Court, the judge shall inform the defendant that the disposition imposed will not exceed the terms of the prosecutor's recommendation without first giving the defendant the right to withdraw the plea. At any time prior to accepting the plea or admission, the judge may continue the hearing on the judge's own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination of a just disposition in the case.

(B) Where there is an agreed-upon recommendation as to disposition

The judge shall inform the defendant that the disposition imposed will not exceed the terms of the agreement without first giving the defendant the right to withdraw the plea. At any time prior to accepting the plea or admission, the judge may continue the hearing on the judge's own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination of a just disposition in the case.

(5) Findings of judge; acceptance of plea

The judge shall inquire whether the defendant still wishes to plead guilty or nolo contendere or admit to sufficient facts. If so, the judge will then make findings as to whether the plea or admission is knowing and voluntary, and whether there is an adequate factual basis for the charge. The defendant's failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea or admission. At the conclusion of the hearing, the judge shall accept or reject the tendered plea or admission.

(6) Sentencing

After acceptance of a plea of guilty or nolo contendere or an admission, the judge shall sentence the defendant.

(A) Conditions of probation

If the judge's disposition includes a term of probation, the judge, with the assistance of probation where appropriate and after considering the recommendations of the parties, shall impose appropriate conditions of probation.

(B) Intent to impose sentence exceeding requested disposition

In District Court, if the judge decides to impose a sentence that will exceed the defendant's request for disposition under Rule 12(c)(4)(A) or the parties' request for disposition under Rule 12(c)(4)(B), the judge shall, on the record, advise the defendant of that intent and shall afford the defendant the opportunity to withdraw the plea or admission. In Superior Court, if the judge decides to impose a sentence that will exceed the prosecutor's request for disposition under Rule 12(c)(4)(A) or the parties' request for disposition under Rule 12(c)(4)(B), the judge shall, on the record, advise the defendant of that intent and shall afford the defendant the opportunity to withdraw the plea or admission. In both District and Superior Court, the judge may indicate to the parties what sentence the judge would impose.

(1) Disclosure of the terms of the plea agreement

The parties shall disclose the terms of the plea agreement on the record in open court unless the judge for good cause allows the parties to disclose the terms of the plea agreement in camera on the record.

(2) Tender of plea

The defendant's plea or admission shall be tendered to the judge.

(3) Colloquy

The judge shall:

(A) Provide notice to the defendant of the consequences of a plea

The judge shall inform the defendant:

(i)

that by a plea of guilty or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination;

(ii)

of the maximum possible sentence on the charge, and, if applicable,

(a) any different or additional punishment based upon subsequent offense provisions of the General Laws;

(b) that the defendant may be subject to adjudication as a sexually dangerous person and required to register as a sex offender;

(c) the mandatory minimum sentence on the charge; and

(d) that a conviction or plea of guilty for an offense listed in G.L. c. 279, § 25(b) implicates the habitual offender statute, and that upon conviction or plea of guilty for the third or subsequent of said offenses: (1) the defendant may be imprisoned in the state prison for the maximum term provided by law for such third or subsequent offense; (2) no sentence may be reduced or suspended; and (3) the defendant may be ineligible for probation , parole, work release or furlough, or to receive any deduction in sentence for good conduct; 

(iii)

that, if the defendant is not a citizen of the United States, the guilty plea, plea of nolo contendere, or admission may have the consequence of deportation, exclusion of admission, or denial of naturalization.

(B) Factual basis for the charge

The prosecutor shall present the factual basis of the charge.

(C) Rights of victims and witnesses of crimes

If applicable, the judge shall inquire of the prosecutor as to compliance with the requirements of  G.L. c. 258B, Rights of Victims and Witnesses of Crimes. The judge shall give any person entitled under G.L. c. 258B to make an oral and/or written victim impact statement the opportunity to do so.

(4) Review; acceptance or rejection of plea agreement

The judge must accept or reject the plea agreement before the judge accepts a guilty plea or admission. The judge should not accept a plea agreement without considering whether the proposed disposition is just. At any time prior to the acceptance or rejection of the plea agreement, the judge may continue the plea hearing on the judge's own motion to ensure that the judge has been provided with, and has had an opportunity to consider, all of the facts pertinent to a determination whether the plea agreement provides for a just disposition in the case.

(A) Accepted plea agreement

If the judge accepts the plea agreement, the judge shall inform the defendant that the judge will impose the sentence, including the length of any term of probation, provided in the plea agreement.

(B) Rejected plea agreement

If the judge rejects the plea agreement, the judge shall, on the record and in open court (or, for good cause, in camera on the record):

(i)

inform the parties that the judge rejects the plea agreement, but the judge may indicate to the parties what sentence the judge would impose or what additional information the judge will require before the judge may make this determination;

(ii)

allow either party to withdraw from the plea agreement; and

(iii)

allow the defendant to withdraw his or her plea or admission.

(5) Findings of judge as to plea agreement and plea; acceptance of plea

If the judge has accepted the plea agreement, the judge shall inquire whether the defendant still wishes to plead guilty or admit to sufficient facts. If so, the judge will then make findings as to whether the plea agreement and plea or admission are knowing, voluntary, and supported by an adequate factual basis. The defendant's failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea or admission. At the conclusion of the hearing, the judge shall accept or reject the tendered plea or admission.

(6) Sentencing

After accepting the plea agreement and the plea or admission, the judge shall impose sentence according to the terms of the plea agreement. If the plea agreement includes a term of probation, the judge, with the assistance of probation where appropriate and after considering the recommendations of the parties, shall impose appropriate conditions of probation.

Prior to sentencing under Rule 12(c)(6) or to the judge's decision to accept or reject a plea agreement under Rule 12(d)(4), the judge, prosecutor, and counsel for the defendant shall have an opportunity to review the defendant's criminal record and any report of the presentence investigation as described in Rule 28(d)(2) . In extraordinary cases, the judge may except from disclosure to the parties parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. If the report is not made fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence. No party may make any copy of the presentence report.

Except as otherwise provided in this subdivision, evidence of a plea of guilty, or a plea of nolo contendere, or an admission, or of an offer to plead guilty or nolo contendere or an admission to the crime charged or any other crime, later withdrawn, or statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceedings against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or a plea of nolo contendere, or an admission or an offer to plead guilty or nolo contendere or an admission to the crime charged or any other crime, is admissible in a criminal proceeding for perjury if the statement was made by the defendant under oath, on the record, and in the presence of counsel, if any.

LENK, J. Apart from changing the current Rule 12 of the Massachusetts Rules of Criminal Procedure to require that plea discussions with a judge be on the record, I am not persuaded that further, let alone extensive, revision to the rule is necessary or desirable . As then Justice Herbert P. Wilkins wrote in 1991, "I decline to join in the promulgation of a rule that apparently is intended to deal with a problem that is not shown to exist ." Statement of Opposition to the Adoption of Revised Supreme Judicial Court Rule 3:07, DR 7-108(D), August 26, 1991.

The key impetus for changing Rule 12 stems from our decisions in Commonwealth v . Rodriguez, 461 Mass. 256 (2012) and Commonwealth v. Dean-Ganek, 461 Mass. 305 (2012), "holding that former Rule 12 permitted a judge to impose a sentence more lenient than the sentence agreed to in a plea agreement accepted by the judge . . .[and that] jeopardy attaches when the  judge accepts the plea . . . thus preventing the prosecution's withdrawal in such a case, even when the plea agreement included negotiated charge concessions." Reporter's Notes to Proposed Rule 12(b) - (e) of the Massachusetts Rules of Criminal Procedure. Apart from continuing to think both that these cases were correctly decided and that the current Rule 12 embodies highly desirable judicial discretion, I am unaware of any instance in which a judge has accepted a plea in the context of a charge concession and then imposed a sentence more lenient than that jointly recommended in a plea agreement.

The current rule has worked quite well for quite some time, and has the not inconsiderable virtue of being familiar to bench and bar. Although the rule as changed is narrower than earlier proposed versions and Rule 29 remains unchanged, it is still a solution in search of a problem. To the extent that the adopted Rule 12 seeks to circumscribe the exercise of judicial discretion, even in limited circumstances, it is misguided and most unfortunate.

Chief Justice Gants and Justice Hines have authorized me to say that they join in this statement.

(2022)

These amendments to Rule 12(b)(5)(A), Rule 12(c)(4), and to the heading of Rule 12(c), implement the terminological change from “sentence” to “disposition” required by Commonwealth v. Beverly, 485 Mass. 1 (2020), to reflect more accurately that potential outcomes in criminal cases may include continuances without a finding or other non-conviction dispositions. Id., 485 Mass. at 8-9 (noting uses of both “sentence” and “disposition” in the rule).

(2020)

In Commonwealth v. Petit-Homme, 482 Mass. 775 (2019) the SJC referred to the Committee for review and reconsideration the immigration warning judges are required to give as part of plea colloquies or admissions to sufficient facts by Mass. R. Crim. P. 12(c)(3)(A)(iii)(b) and 12(d)(3)(A)(iii)(b) (the “rule [b] warning”). This warning (which is identical in both sections of the rule) is one of two that judges must give concerning potential immigration consequences of a guilty plea or admission.

The other warning, prescribed by General Laws c. 278, § 29D, is set forth in Mass. R. Crim. P. 12(c)(3)(A)(iii)(a) and 12(d)(3)(A)(iii)(a) (the “rule (a) warning”). It provides a general advisory that persons who are not citizens of the United States may face consequences under federal law of deportation, exclusion from admission or denial of naturalization, by the court’s acceptance of their guilty plea, plea of nolo contendere or admission to sufficient facts.

In contrast to the general advisory in the rule (a) warning, the rule (b) warning provides a more specific advisory about the likelihood of the immigration consequences described in the rule (a) warning based on treatment under federal law of the offenses to which a defendant pleads guilty or makes an admission. Unlike the general advisory in the rule (a) warning, the accuracy of this warning depends on “a thorough, nuanced understanding of Federal immigration law,” as well as detailed information concerning “the defendant’s immigration history and status, criminal record, and the nature and circumstances of the pending charges.” Petit-Homme, 482 Mass. at 786.

Without this detailed understanding of Federal immigration law, and the defendant’s immigration and criminal history, this more specific warning may create a misimpression or misunderstanding among defendants, and when paired with the more general advisory creates a significant risk of confusion. For these reasons, the rule (b) warning was eliminated in this amendment.

Eliminating this warning in no way reduces counsel’s obligation to assess the potential collateral consequences for a non-citizen defendant of a guilty plea, plea of nolo contendere or admission to sufficient facts. See Padilla v. Kentucky, 559 U.S. 356, 363-364 (2010); Commonwealth v. DeJesus, 468 Mass. 174, 182 (2014); Commonwealth v. Clarke, 460 Mass. 30, 48 n. 20 (2011), partially abrogated on other grounds by, Chaidez v. United States, 568 U.S. 342 (2013) (“receipt of such warnings is not an adequate substitute for defense counsel’s professional obligation to advise her client of the likelihood of specific and dire immigration consequences that might arise from such a plea”).

Standards of practice for representation require counsel to consider potential immigration consequences for a client throughout a case. Committee for Public Counsel Services, Performance Standards Governing Representation of Indigents in Criminal Cases §2.a.v. (Preliminary Proceedings & Preparation – Arraignment) (in rare circumstances when it may be appropriate to take advantage of an early disposition, especially one not involving a criminal record, counsel should be aware of potential immigration consequences of a continuance without a finding); §§5.d.vi. and xiii. (Dispositions by Plea or Admission – Consequences of Conviction) (“Counsel must advise client, prior to any change of plea, of the consequences of conviction, including: . . . consequences for non-citizens; and possible immigration consequences including but not limited to deportation, denial of naturalization or refusal of reentry into the United States.”); §7.a.vii. (Sentencing – Preparation) (“Defense counsel should be familiar with and consider: . . . collateral consequences of any sentence, including immigration consequences”). These standards apply equally to representation of juveniles. Performance Standards Governing Representation of Juveniles in Delinquency and Youthful Offender Cases §2.a.vi.(a) (Preliminary Proceedings – Arraignment); §§6.d.vi. and xviii. (Disposition by Plea or Admission); and §8.a.vi. (Sentencing), January 1, 2019, version 1.9, https://www.publiccounsel.net/assigned-counsel-manual/. See also, Jennifer Klein, Consequences of Criminal Convictions for the Noncitizen, Immigration Practice Manual, 3d Ed. § 19-1 (2017) (“A criminal defense lawyer must determine the immigration status of the defendant at the beginning of representation.”).

(2019)

Subdivision (b)(6) is added in response to a referral in Commonwealth v. Gomez, 480 Mass. 240 (2018), requesting that the Committee propose a rule providing for conditional guilty pleas in Massachusetts. Like the federal rules and the rules of many states, it enables a defendant to enter a plea reserving a right to appeal (commonly called a “conditional plea”). Under this 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. A guilty plea or admission to sufficient facts reserving appellate review of a specified ruling or rulings may be tendered under either Mass. R. Crim. P. 12(c) or 12(d). In all respects other than reserving the right to appeal, this subdivision works no change in existing rules governing pleas, sentencing, or appeal.

A guilty plea, voluntarily and intelligently made, ordinarily “waives all nonjurisdictional defects.” Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007) (citing Garvin v. Commonwealth, 351 Mass. 661, 663-664 (1967)). Adverse rulings thus cannot be appealed, even by a defendant who might otherwise plead guilty, without the time and expense of a trial. As the Supreme Judicial Court recognized in Commonwealth v. Gomez, 480 Mass. 240 (2018), the Federal Rules of Criminal Procedure and the law of most states permit defendants to enter a guilty plea conditioned on the right to appeal a specified ruling of the court. See, e.g., Fed. R. Crim. P. 11(a)(2). In Gomez, the Court exercised its superintendence authority under G.L. c. 211, § 3 to authorize conditional guilty pleas provided the Commonwealth and the court agreed, and the defendant specified the ruling on which appellate review was sought. Gomez, supra at 252. This subdivision implements Gomez by permitting guilty pleas or admissions to sufficient facts in which the defendant reserves for appellate review one or more rulings.

This procedure facilitates plea bargaining and conserves judicial resources. These savings are greatest when the rulings reserved for appeal effectively dispose of the case; thus, the procedure requires that the Commonwealth agree that reversal of the ruling subject to appeal would render its case on the specified charge or charges not viable. While most conditional pleas involve legally dispositive rulings, even certain non-dispositive rulings can be subject to conditional pleas. See Gomez, 480 Mass. at 252. The rule thus extends to situations in which, should the reserved ruling be reversed, the Commonwealth would choose not to proceed because the case would no longer be viable for prosecution. The viability standard also appears in S.J.C. Order regarding Applications to a Single Justice Pursuant to Mass. R. Crim. P. 15(a)(2) (June 8, 2016) (applications for interlocutory appeal by the Commonwealth must include a “statement whether the Commonwealth has a viable case without the suppressed evidence, and the strength of that case, if viable”).

This rule requires the parties to specify, by written agreement, the ruling or rulings reserved for appeal, and the charge or charges that would presumptively be dismissed if the defendant prevails on appeal and chooses to withdraw the guilty plea or admission to sufficient facts. The ruling or rulings should be identified by stating the name of the motion or pleading ruled upon, the date of the ruling or rulings, and the judge who issued the ruling. The charge or charges should be identified by reference to the complaint and offense or count of the indictment. The written agreement should be filed with the court and become part of the record for appeal. A guilty plea or admission to sufficient facts reserving appellate review of a specified ruling or rulings may be tendered under either Mass. R. Crim. P. 12(c) or 12(d). As with any guilty plea, the judge has discretion to refuse to accept a plea reserving appellate review. See Mass. R. Crim. P. 12(a)(3). While a plea that does not result in a conviction would ordinarily not merit appeal, in special circumstances the collateral consequences of even a continuance without a finding may warrant a defendant pursuing an appeal. See, e.g., Commonwealth v. Henry, 88 Mass. App. Ct. 446 (2015) (admission to sufficient facts and continuance without a finding equivalent to a guilty plea in evaluating immigration consequences, citing Commonwealth v. Grannum, 457 Mass. 128, 130 n. 4 (2010)); Burke v. Bd. of Appeal on Motor Vehicle Liability Policies and Bonds, 90 Mass. App. Ct. 203, rev. denied 476 Mass. 1101 (2016) (admission to sufficient facts in connection with continuance without a finding on first offense operating under the influence could qualify as a conviction for purposes of lifetime revocation of driver’s license pursuant to G.L. c. 90 § 24(1)(d)). The process for taking appellate review of the specified ruling or rulings is governed by the Massachusetts Rules of Appellate Procedure, provided that the notice of appeal is filed within thirty days of the acceptance of the plea.

If the defendant prevails in whole or in part on appeal, the defendant has the choice whether to withdraw the guilty plea, or the admission to sufficient facts, on the specified charge or charges. If the defendant elects to withdraw the plea or admission, dismissal of the specified charge or charges, which the Commonwealth previously agreed would not be viable should the defendant prevail on appeal, is presumptively appropriate. In cases in which, for example, the defendant prevails on appeal in part (e.g., the appellate court suppresses some but not all the evidence which the defendant sought to exclude), the Commonwealth has an opportunity to show good cause that the court should not dismiss the charge or charges. If the judge does not intend to dismiss the specified charge or charges, the judge should indicate that intention to the defendant before the defendant withdraws the guilty plea or admission to sufficient facts.

Appellate relief for the defendant may necessitate re-sentencing. As when a conviction or sentencing provision is vacated, in the normal course the trial judge has an opportunity to reassess the sentence given the remaining convictions and sentencing options. Commonwealth v. Sallop, 472 Mass. 568, 570 (2015); Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 348 (1999); Commonwealth v. Clermy, 37 Mass. App. Ct. 774, 779, aff’d, 421 Mass. 325 (1995).

(January 2015)

Rule 12 pleas and plea agreements

As the title of Rule 12 suggests, the 2015 revision of the rule resulted in a more carefully delineated and somewhat expanded role for plea agreements in the process of a judge’s consideration and acceptance of a proffered guilty plea. The rule’s amendment was in response to the Supreme Judicial Court’s interpretation of Rule 12 in Commonwealth v. Rodriguez, 461 Mass. 256 (2012), and  Commonwealth v. Dean-Ganek, 461 Mass. 305 (2012), holding that former Rule 12 permitted a judge to impose a sentence more lenient than the sentence agreed to in a plea agreement accepted by the judge. The Court further held that jeopardy attaches when the judge accepts a plea, see Dean-Ganek, 461 Mass. at 312-313, thus preventing the prosecution’s withdrawal in such a case, even when the plea agreement included negotiated charge concessions.

As amended, Rule 12 provides that, if (1) the parties enter a plea agreement which includes both a specific, agreed sentence and a prosecutorial charge concession and (2) the judge accepts that agreement, then the judge is bound to impose the agreed sentence. If, on the other hand, the judge rejects such an agreement, either party may withdraw. In all other pleas or admissions, whether conditioned on a plea agreement or not, the amended rule provides that the judge is not bound by the sentencing recommendations of the parties. However, in such cases, the amended rule permits the defendant to withdraw the plea if the judge indicates an intent to impose a sentence more severe than (1) an agreed recommendation (but without charge concessions), (2) the prosecutor’s recommendation if there is no agreed sentencing recommendation, or (3) in District Court, the disposition requested by the defendant. Finally, in order to promote fair and efficient plea bargaining and to establish rules to govern the previously unregulated and widely varying practice of lobby conferences, amended Rule 12 provides for judicial participation in plea negotiations at the request of a party and requires that plea discussions with judicial participation be recorded.

Rule 12(a) Pleas in general

The 2015 amendments made no substantive changes to Rule 12(a). The only changes were stylistic, designed to make the rule more specific and clear.

Rule 12(b) plea discussions; pleas without plea agreement and with plea agreement 

Rule 12(b)(1) in general

Rule 12(b)(1) makes it clear that the defendant may tender a guilty plea, a nolo contendere plea, or, in District Court, an admission to sufficient facts, without entering into a plea agreement.  See Rule 2(b)(7) (defining “District Court” to include all divisions of the District Court, Boston Municipal Court, and Juvenile Court).  However, the rule also provides that the parties may condition a guilty plea (or, in District Court, an admission to sufficient facts) on a plea agreement under Rule 12(b)(5), discussed below. Rule 12(b)(1) omits nolo contendere pleas from those that can be conditioned on a plea agreement, an omission that Rule 12(b)(5) makes explicit, thus limiting the benefits of a plea agreement to those defendants who take responsibility for the crimes to which they are pleading.

Rule 12(b)(2) plea discussions

Rule 12(b)(2) provides that the judge may participate in plea discussions at the request of either party provided that any such discussions are recorded and made part of the record. Such limited judicial participation in plea negotiations facilitates fair and efficient case management, particularly in courts with crowded dockets, and it has been a longstanding though largely unregulated practice in many courts. The rule maintains the recognized benefits of this practice while providing important safeguards to curb its potential for abuse.

Recognizing that judicial participation in plea negotiations can be coercive and leave the impression of unfairness, this provision addresses these concerns by conditioning such participation on the request of one or both parties and further requiring that these discussions be recorded and made a part of the record.  See Murphy v. Boston Herald, Inc., 449 Mass. 42 , 57 n. 15 (2007) (stressing the importance of recording lobby conferences). The rule does not, however, preclude a judge’s uninvited announcement that he or she is willing to participate in plea discussions if invited to do so by either party. The rule’s requirement that the discussions be recorded and made part of the record is not meant to require that they invariably be conducted in open court. As with other potentially sensitive matters, judges have discretion under the appropriate circumstances to conduct plea discussions in a manner that restricts immediate public access, most likely at sidebar, provided they are recorded. Judges are experienced in determining when sidebars or other such restrictions are appropriate, and the rule anticipates that they will continue to apply that experience in judiciously exercising this discretion.

Rule 12(b)(3) inquiry as to the existence of a plea agreement

Rule 12(b)(3) provides that, when a defendant indicates an intent to plead guilty or to admit to sufficient facts, the judge shall inquire if there is a plea agreement. Because plea procedures vary depending on whether there is an agreement that will bind the judge if accepted, such an inquiry is necessary in order to determine which procedure is applicable. Because Rule 12 does not permit a nolo contendere plea to be conditioned on a plea agreement, the rule does not require the judge to ask if there is a plea agreement in such a case. However, it may make sense for the judge nevertheless to make this preliminary inquiry in the case of a nolo plea, if only to ensure that the parties understand that any such plea agreement is outside the rule, constituting at best a joint recommendation that the judge is free to disregard.

Rule 12(b)(4) pleas without an agreement

If there is no plea agreement under Rule 12(b)(5), Rule 12(b)(4) provides that the procedure for taking a plea or admission set forth in Rule 12(c) applies. In such a case, the parties are each free to make any dispositional request permitted by law.

Rule 12(b)(5) pleas conditioned upon an agreement

Rule 12(b)(5) provides that a defendant may condition an intended guilty plea or admission on a plea agreement with the prosecutor. As noted, the rule explicitly precludes a plea agreement if the intended plea is nolo contendere. The rule divides plea agreements into two categories. Rule 12(b)(5)(A) provides for a type of plea agreement that, if accepted by the judge, binds the judge to sentence in accordance with the agreement, and Rule 12(b)(5)(B) provides, in effect, that no other plea agreement binds the judge to impose a particular sentence.

Under Rule 12(b)(5)(A), an accepted plea agreement will bind the judge if the parties have agreed both to a particular charge concession(s) by the prosecutor and to a specific sentence, including the length of any probationary term.  Rule 12(b)(5)(A)’s reach is intentionally narrow. The rule carves out an exception to judicial sentencing discretion, an exception applicable only to a plea bargain that expressly includes both a prosecutorial charge concession and an agreed sentence to a specific term of incarceration, to a specific period of probation, or to a specific term of incarceration coupled with a specific period of probation (e.g., a term of probation to be served in lieu of a suspended sentence of incarceration, or a term of probation to be served on and after a term of incarceration). If the parties enter into such an agreement, the rule requires the judge to follow the plea procedures set forth in Rule 12(d), noting that those procedures mandate imposition of the agreed sentence if the judge accepts the plea agreement and the plea. See Rule 12(d)(4)(A) and (6), discussed below. As discussed below, Rule 12(d) further provides that, if the judge rejects such a plea agreement, either party may withdraw from the agreement and thus from the plea.  See Rule 12(d)(4)(B).

Even though Rule 12(b)(5)(A) permits the parties to include a specific period of probation within a binding plea agreement, the rule does not permit the parties to bind the judge to impose specific conditions of probation. Any agreement by the parties concerning conditions of probation is treated as a non-binding recommendation for the judge to consider, with the assistance of probation, in deciding what probationary conditions are appropriate in the case. See Rule 12(d)(6), discussed below. Finally, nothing in Rule 12 is intended to limit a judge’s lawful discretion to modify probationary conditions during the course of probation or to adjust the probationary term upon a finding of a probation violation.  In short, a plea agreement containing a charge concession and an agreed-upon period of probation will bind a judge who accepts that agreement to impose the agreed term of probation, but the parties may not by agreement trench upon the longstanding prerogative of the judge to determine and subsequently to modify any conditions of probation during that probationary term. See Commonwealth v. Goodwin, 458 Mass. 11 , 17-19 (2010). 

Under Rule 12(b)(5)(B), pleas conditioned on plea agreements other than those described in Rule 12(b)(5)(A) are governed by the procedures set forth in Rule 12(c), the procedures that also govern pleas in which there is no plea agreement. As discussed below, Rule 12(c) treats any agreement contained in a Rule 12(b)(5)(B) plea agreement as a non-binding, joint recommendation. For example, if the parties agree to a specific sentence unaccompanied by a charge concession, to a charge concession unaccompanied by an agreement to a specific sentence, or to some other dispositional alternative such as incarceration in a particular facility, that agreement would not bind the judge in imposing sentence. As was true under former Rule 12(b), the parties are free to enter into an agreement to recommend any disposition, or kind of disposition, permitted by law in the case in question.  However, unless the agreement provides for both a charge concession and a specific sentence, the judge cannot be bound to follow that recommendation.

Rule 12(c) procedure if no plea agreement or if plea agreement does not include both a specific sentence and a charge concession

Rule 12(c) provides for the plea procedure in cases in which the parties have not entered a binding plea agreement under Rule 12(b)(5)(A). Rule 12(c)’s procedure is parallel to that set forth in Rule 12(d), which is applicable to pleas and admissions when there is a Rule 12(b)(5)(A) binding plea agreement. The two sections diverge in their respective timing of receipt of victim impact statements, compare Rule 12(c)(3)(C) with Rule 12(d)(3)(C), treatment of the parties’ sentencing recommendations, compare Rule 12(c)(4) with Rule 12(d)(4), and sentencing, compare Rule 12(c)(6) with Rule 12(d)(6). Otherwise, the two plea procedures are substantively identical.

Rule 12(c)(1) disclosure of terms of plea agreement

As discussed above, if the plea is conditioned on a plea agreement, the applicability of Rule 12(c)’s procedures depends on the provisions of that agreement. If the agreement provides for both a prosecutorial charge concession and an agreed specific sentence, the procedures under Rule 12(d) apply; if not, Rule 12(c) applies. It is thus important for the parties and the judge to be clear about the terms of any agreement before the plea procedure begins.

Rule 12(c)(2) tender of plea

Because Rule 12(c) applies to pleas in which there is no agreement as well as to pleas conditioned on an agreement, Rule 12(c)(2) moves the tender of plea or admission to the beginning of the plea procedure so that from the outset the terms of the plea or admission are clear even if there is no agreement. Although the plea tender precedes Rule 12(c)(3)’s colloquy, which includes the notice of the consequences of the plea, Rule 12(c)(5) permits the defendant to withdraw the tendered plea or admission subsequent to the colloquy but prior to the judge’s acceptance of the plea or admission. In a District-Court plea in which there will be a recommendation of probation, whether unagreed or agreed, the party(ies) must consult with the probation department before tendering the plea so that probation will be in a position to provide any assistance that the judge may require in sentencing.  See Dist./Mun. Ct. R. Crim. P. 4(c) .

Rule 12(c)(3) colloquy

Rule 12(c)(3)(A) requires the judge to begin the plea colloquy by notifying the defendant of the consequences of the tendered plea or admission. The notice of consequences is substantively identical to former Rule 12(c)(3)’s required notice of consequences with two exceptions. First, unlike its predecessor, Rule 12(c)(3)(A)(ii)(d) requires the notice mandated by the 2012 amendments to the habitual-offender statute. See G.L. c. 279, § 25(d) (requiring notice of potential habitual-offender consequences “prior to accepting a guilty plea for any qualifying offense listed in subsection (b) [of the statute]” but further providing that the failure to give such notice is not a basis to vacate an otherwise valid plea or conviction).

Second, Rule 12(c)(3)(A)(iii) expands former Rule 12(c)(3)(C)’s required noncitizen warning.  As did former Rule 12(c)(3)(C), Rule 12(c)(3)(A)(iii)(a) requires the warning mandated by G.L. c. 278, § 29D , advising a defendant that, if he or she is a noncitizen, his or her plea or admission may result in deportation, exclusion from admission, or denial of naturalization. Rule 12(c)(3)(A)(iii)(b) advises further that, if (1) the offense to which the defendant is pleading is under federal law one that “presumptively mandates removal from the United States” (a so-called “removable offense,” see Padilla v. Kentucky, 559 U.S. 356, 363-364 (2010)) and (2) federal officials seek removal, it is “practically inevitable that [defendant’s] conviction would result in deportation, exclusion from admission, or denial of naturalization.”

This additional warning recognizes that under federal immigration law there are a substantial number of crimes – including “all controlled substances convictions except for the most trivial of marijuana possession offenses,” see Padilla, 559 U.S. at 368; 8 U.S.C. § 1227(a)(2)(B)(i) (2008) – the conviction for which make “deportation practically inevitable” if federal officials seek the defendant’s removal. See Commonwealth v. DeJesus, 468 Mass. 174 , 181 & n. 5 (2014). See also Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 (2013) (cited in DeJesus, noting that the federal Immigration and Nationality Act prohibits discretionary relief for deportations based on convictions for a wide range of crimes no matter how compelling the circumstances). Further, as the warning states, once deported due to such a conviction, a defendant would almost certainly be denied both re-admission to the United States and naturalization. See, e.g., L. Rosenberg, D. Kanstroom & J. Smith, Immigration Consequences of Criminal Proceedings, Massachusetts Criminal Practice § 42.2 (E. Blumenson & A. Leavens eds., 4th ed. 2012).  It is important to appreciate that Rule 12(c)(3)(A)(iii)(b)’s warning is limited to the consequences of a conviction for a “removable offense.” The narrow focus of this enhanced warning is purposeful and should not be read to suggest that convictions for other crimes would have no serious immigration consequences. Under federal law, conviction for – or even an admission to conduct constituting – a broader range of crimes than those presumptively mandating removal can also result in denial of re-admission and of naturalization. Id. §§ 42.2- 42.3.

Finally, as Rule 12(c)(3)(A)(iii)’s warning provides, under federal immigration law, “convictions” include admissions to sufficient facts even when the result is a continuance without a finding (CWOF), if the continuance is conditioned on “some form of punishment, penalty or restraint” such as payment of costs or restitution. See DeVaga v. Gonzalez, 503 F.3d 45, 49 (1st Cir. 2007) (holding that a CWOF conditioned on payment of restitution satisfies 8 U.S.C. § 1101(a)(48)(A)(ii) ’s provision that an admission to sufficient facts constitutes a “conviction” if the admission results in “some form of punishment, penalty or restraint”); Matter of Cabrera, 24 I. & N. Dec. 459, 462 (BIA 2008) (holding that imposition of costs and surcharges following a plea is a “penalty” or “punishment” for purposes of § 1101(a)(48)(A)(ii)).

This noncitizen warning is not meant to displace the critical role of counsel in providing more particular advice concerning the immigration consequences of a particular plea. Quite the contrary, the warning is meant to trigger that advice if, under circumstances best known by counsel, a defendant is risking serious immigration consequences by pleading guilty or admitting to sufficient facts.  See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010); Commonwealth v. Clarke, 460 Mass. 30, 45-46, 48-49 & n. 20 (2011) (noting that then-Rule 12’s requirement of “[immigration] warnings is not an adequate substitute for defense counsel’s professional obligation to advise her client of the likelihood of specific and dire immigration consequences that might arise from such a plea”), partially abrogated on other grounds, Chaidez v. United States, 133 S. Ct. 1103 (2013); DeJesus, 468 Mass. at 182 (holding that counsel’s advice to a noncitizen defendant that he would be “eligible for deportation” and would “face deportation” if he pled guilty to possession of cocaine with intent to distribute ( a removable offense under the immigration statute) was constitutionally inadequate).

Rule 12(c)(3)(B) requires the prosecutor to present the factual basis of the charge. Unlike former Rule 12(c)(5)(A), Rule 12(c)(3)(B) does not exclude nolo contendere pleas from the requirement that the prosecutor present a factual basis for the tendered plea or admission. The factual basis of a nolo plea provides information essential to crafting an appropriate sentence, but, because the defendant is not called upon to acknowledge or admit those facts, they will not be admissible in any subsequent proceeding against the defendant. See, e.g., Mass. Guide to Evidence § 803(22) (2014) (explicitly excluding judgments based on nolo contendere pleas from the hearsay exception generally applicable to judgments of conviction).

The prosecutor can present the factual basis in the traditional manner, stating the facts that he or she expects to prove if the case goes to trial, but the rule also permits presenting sworn testimony, at the request of the judge or otherwise, as a way to satisfy this requirement. If the plea is an Alford plea, i.e., one in which the defendant declines to admit one or more elements of the offense to which he or she is nevertheless pleading guilty, the Supreme Court requires “strong evidence of [the defendant’s] guilt.” See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). In such a case, the prosecutor should give particular attention to this testimonial option. See E. Cypher, Procedure if Defendant pleads Guilty or Nolo Contendere but does not admit Participation in Crime, 30A Mass. Prac., Criminal Practice & Procedure, § 24:78 n. 4 (2014) (“[I]f an Alford plea is offered, the Commonwealth should . . . [offer] sworn testimony to show the case is strong against the defendant, his defense is non-existent, and the defendant has presented reasons why the plea should be accepted”).

As the final part of the colloquy, Rule 12(c)(3)(C) requires the judge to inquire of the prosecutor as to compliance with G.L. c. 258B. However, the judge is granted discretion concerning when to hear any victim-impact statements. The judge does not need this input until deciding whether to accept or reject the plea and then to impose sentence. However, hearing victim-impact statements at this stage of the proceeding – just before hearing the parties’ respective sentencing recommendations and arguments – may provide the judge with the proper perspective for considering those recommendations and deciding what is a just disposition in the case.

Rule 12(c)(4) disposition requests

Rule 12(c)(4) gives the parties the opportunity to make their respective sentencing recommendations.  This section has two subdivisions:  Rule 12(c)(4)(A) applies to cases in which there is no agreed-upon sentence recommendation, and Rule 12(c)(4)(B) applies to cases in which there is. Rule 12(c)(4)(A) requires a District Court judge to inform a defendant of the statutory right to withdraw the plea if the judge imposes a sentence that exceeds the defendant’s request, see G.L. c. 278, § 18, and a Superior Court judge to inform a defendant of the right to withdraw the plea if the disposition imposed exceeds the prosecutor’s recommendation. If the parties have agreed on a sentence recommendation, Rule 12(c)(4)(B) requires the judge to inform the defendant that the plea may be withdrawn if the sentence imposed exceeds the agreed-upon recommendation. However, unlike Rule 12(d)(4)(B)(ii), which applies to binding plea agreements, Rule 12(c)(4)(B) does not give the prosecution the right to withdraw from the plea agreement and the plea if the judge announces an intent to impose a sentence more lenient than the sentence jointly recommended.

If in considering the parties’ joint or respective recommendations the judge decides that he or she needs more information or time to determine a just disposition in the case, both subsections of Rule 12(c)(4) allow the judge to continue the plea hearing for that purpose. Among the factors pertinent to the judge’s sentencing decision are the nature of the offense committed, the manner in which it was committed, the impact that the offense had on any victims, the defendant’s criminal history, and the defendant’s circumstances (e.g., his or her mental health, substance abuse, and/or psychological issues). The judge, in consultation with probation where appropriate, should take the time and consider the facts necessary to craft a sentence, including any term and conditions of probation, that is fair, appropriate to the crime, and designed to diminish the risk of recidivism.

Rule 12(c)(5) findings of judge; acceptance of plea

Rule 12(c)(5) requires the judge to inquire if the defendant still wishes to plead guilty or admit to sufficient facts. At this point, the defendant has received the notice of consequences of the plea or admission, has heard the factual basis for the charged offense(s), and is aware of the respective sentencing recommendations of the parties. The defendant may have also heard the victim-impact statement(s), if any. The defendant must now elect to go forward with his or her tendered plea or admission, or choose to withdraw it and go to trial. If the defendant elects to go forward, the judge then makes the necessary inquiries to ensure that the plea or admission is knowing and voluntary. The amended rule is intended to make no change to former Rule 12(c)(5)’s provision for this voluntariness hearing, either in its form or substance.

The rule also requires the judge to find that there is an adequate factual basis for the plea or admission. As did its predecessor, Rule 12(c)(5) provides that the defendant’s failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea.  The rule is not intended to work any change to former Rule 12(c)(5)(A) in this regard. 

If the judge is satisfied that the plea or admission is knowing, voluntary, and supported by an adequate factual basis, the judge is then in a position to accept the tendered plea or admission. Of course, if the judge is not satisfied in this regard, or, if for some other reason the judge determines that the plea or admission would not result in a just disposition of the case, the judge is permitted to reject the plea or admission. Nothing in the rule is meant to deprive the judge of this longstanding discretion. See Commonwealth v. Dilone, 385 Mass. 281, 285 (1982) (acceptance of a guilty plea is “wholly discretionary with the judge”), citing Santobello v. New York, 404 U.S. 257 (1971); E. Cypher, 30A Mass. Prac., Criminal Practice & Procedure, Judge may refuse to accept guilty plea, plea of nolo contendere or admission to sufficient facts, § 24:60 (4th ed. 2014).

Rule 12(c)(6) sentencing

If the judge accepts the plea or admission, the judge then imposes sentence under Rule 12(c)(6). As required by G.L. c. 278, § 18, Rule 12(c)(6)(B) explicitly permits a District Court defendant to withdraw his or her tendered plea or admission if the intended sentence exceeds the defendant’s requested disposition. Similarly, in Superior Court a defendant may withdraw his or her plea if the intended sentence exceeds the parties’ agreed-upon recommendation or, if there is no agreed-upon recommendation, the recommendation of the prosecutor. In either event, the judge may indicate to the parties what sentence the judge would impose if the plea were to go forward.

Rule 12(d) procedure if plea agreement includes both a specific sentence and a charge concession

The procedure set out in Rule 12(d) applies to pleas and admissions conditioned on a plea agreement that includes both an agreed charge concession by the prosecutor and an agreement to a specific sentence. See Rule 12(b)(5)(A), discussed above. Under Rule 12(d)(6), discussed below, if the judge accepts such a plea agreement, the judge is bound to impose the agreed sentence. If, however, the judge rejects the plea agreement, either party may withdraw from the agreement. See Rule 12(d)(4)(B), discussed below. Because jeopardy attaches when the judge accepts a tendered plea or admission, at that point foreclosing the prosecutor’s withdrawal from any plea agreement, see  Commonwealth v. Dean-Ganek, 461 Mass. 305, 312-313 (2012), the rule requires that the judge accept or reject a Rule 12(b)(5)(A) plea agreement prior to accepting the plea or admission. And, because such a plea agreement binds the judge if accepted, Rule 12(d) is structured to ensure that, at the time the judge must accept or reject the agreement, the judge has the necessary information to determine if the agreed disposition would be just and appropriate for the case.

Rule 12(d)(1) disclosure of the terms of the plea agreement

Rule 12(d)(1) requires disclosure of the plea agreement at the beginning of the plea hearing. Because acceptance of the agreement binds the judge to sentence according to its terms, it is essential that this disclosure include a clear explanation on the record of those terms.

Rule 12(d)(2) tender of plea

Rule 12(d)(2) moves the tender of plea to the beginning of the plea procedure so that the terms of the plea or admission are clear at the outset. In District Court, if the plea agreement includes any probationary terms or conditions, the parties must consult with the probation department before tendering the plea so that probation will be in a position to provide any assistance that the judge may require in considering the plea or the plea agreement. See Dist./Mun. Ct. R. Crim. P. 4(c). The plea tender precedes Rule 12(d)(3)’s colloquy, which includes the notice of the consequences of the plea or admission, but Rule 12(d)(5) permits the defendant to withdraw the tendered plea or admission subsequent to being informed of its consequences and prior to the judge’s acceptance of it.

Rule 12(d)(3) colloquy

Rule 12(d)(3)(A) provides for the notice of consequences in terms substantively identical to those of 12(c)(3)(A). The above discussion of Rule 12(c)(3)(A) thus applies here with equal force.

Rule 12(d)(3)(B) and (C) respectively require the prosecutor’s presentation of the factual basis for the charge and any victim-impact statements mandated by G.L. c. 258B. As with Rule 12(c)(3)(B), the prosecutor can satisfy this obligation to inform the judge of the factual basis of the charge in the traditional manner, stating the facts that he or she expects to prove if the case goes to trial, but the rule also permits presenting sworn testimony, at the request of the judge or otherwise. Rule 12(d)(3)(C) provides for the receipt of any victim-impact statements at this time. While in some instances it may not be necessary for the judge to hear the victim-impact statements before deciding whether to accept the plea agreement, the judge should not defer hearing from the victims absent the most unusual circumstances. Victim-impact statements delivered after the judge accepts the plea agreement can have no effect on the sentence.

Rule 12(d)’s placement of the facts describing the offense and its impact on the victims at this point in the procedure is necessary because, as noted, the rule requires that the judge accept or reject the plea agreement prior to accepting the plea itself, and that, if accepted, the plea agreement binds the judge to sentence according to the agreement.  It is thus essential that a judge have access to all of the facts pertinent to a just and appropriate disposition in the case prior to deciding whether to accept or reject the plea agreement under Rule 12(d)(4).

Rule 12(d)(4) review; acceptance or rejection of plea agreement

As noted, to avoid the double-jeopardy bar to the prosecutor’s withdrawal from a rejected plea agreement, the judge must accept or reject the plea agreement before accepting the plea or admission. See Dean-Ganek, 461 Mass. at 312-313. Rule 12(d)(4) imposes that timing requirement. At this point in the procedure, the judge has heard the facts of the charged offense and its impact on any victims. Moreover, in reviewing the plea agreement, the judge will hear from the parties concerning the agreed disposition and will have access to the probation department concerning the defendant, including any criminal history. See Rule 12(e), discussed below. However, if the judge believes that there might be other information pertinent to a just disposition in the case, the rule permits the judge sua sponte to continue the plea hearing in order to obtain and consider that information.  Once the judge accepts the agreement, he or she is bound by its terms, and it is therefore essential that at this point the judge be fully satisfied that the agreed-upon sentence is fair, appropriate to the crime, and designed to diminish the risk of recidivism. The only timing requirement imposed by Rule 12(d)(4) is that the judge accept or reject such a plea agreement prior to accepting the guilty plea.

If the judge accepts the plea agreement, Rule 12(d)(4)(A) requires the judge to inform the defendant that the judge will impose the sentence provided in the agreement. If the judge rejects the agreement, Rule 12(d)(4)(B) requires that the judge so inform the parties and permit either party to withdraw from the plea agreement and further permit the defendant to withdraw the tendered plea. Rule 12(d)(4)(B)(i) here gives the judge discretion to inform the parties what sentence he or she would impose if the plea were to go forward. The judge's doing so gives the parties the opportunity to proceed on that basis without agreement under Rule 12(c), to re- fashion their plea agreement to conform to the judge’s suggestion (thus binding the judge if the judge accepts that amended agreement), or to forego the plea and try the case.  If the judge has doubts concerning the wisdom or fairness of the agreed disposition and believes that additional information might help to resolve those doubts, Rule 12(d)(4)(B)(i) permits the judge so to inform the parties. This gives the parties the opportunity, if one or the other has the requested information and is in a position to divulge it, to do so before the judge decides whether to accept or reject the agreement.

Rule 12(d)(5) findings of judge as to plea agreement and plea; acceptance of plea

If the judge accepts the plea agreement, Rule 12(d)(5) provides that the judge ask the defendant if the defendant wishes to go forward with the tendered plea or admission. At this point, the judge has informed the defendant of the consequences of the plea, including what the sentence will be, and the defendant has heard the factual basis of the charged offense and any victim statements as to its impact. If the defendant elects to go forward with the plea, the judge must then make the necessary inquiries to satisfy the judge that the plea agreement and the plea or admission are knowing and voluntary. Rule 12(d)(5) is intended to make no change to former Rule 12(c)(5)’s provision for a voluntariness hearing except that the hearing also applies to the plea agreement on which the plea or admission is conditioned.

Rule 12(d)(5) requires the judge to find that there is an adequate factual basis for the plea or admission. Rule 12(d)(5) preserves the former Rule 12(c)(5)(A)’s provision that the defendant’s failure to acknowledge all aspects of the factual basis shall not preclude a judge from accepting a guilty plea, and the rule is not intended to work any change on its predecessor in this regard.

Once satisfied that the plea agreement and the plea or admission are knowing and voluntary, and that the plea or admission is supported by an adequate factual basis, the judge is in a position to accept the tendered plea or admission. Of course, if the judge is not satisfied in this regard, or, if for some other reason the judge determines that the plea or admission is not just, the judge is permitted to reject the plea or admission. Rule 12(d)(5) is not intended to deprive the judge of this longstanding discretion, even if the judge has accepted the plea agreement on which the plea or admission is conditioned. See Commonwealth v. Dilone, 385 Mass. 281, 285 (1982) (acceptance of a guilty plea is “wholly discretionary with the judge”), citing Santobello v. New York, 404 U.S. 257 (1971); E. Cypher, 30A Mass. Prac., Criminal Practice & Procedure, Judge may refuse to accept guilty plea, plea of nolo contendere or admission to sufficient facts, § 24:60 (4th ed. 2014).

Rule 12(d)(6) sentencing

If the judge accepts the plea or admission, the judge must impose a sentence according to the terms of the plea agreement, including any agreed-upon probationary term. It lies with the judge, however, in consultation with probation where appropriate, to decide what conditions of probation are appropriate. To the extent that the plea agreement contains agreed-upon recommended conditions of probation, they are not binding on the judge; rather, they are to be considered as joint recommendations for the judge to consider, and neither party has the right to withdraw the plea or from the agreement if the judge declines to follow such recommendations. Unlike Rule 12(c)(6), Rule 12(d)(6) does not provide for the defendant’s right to withdraw his or her plea in District Court. That right, afforded by G.L. c. 278, § 18, does not here apply. Under Rule 12(b)(5), the defendant agreed to and thus requested the sentence set forth in the plea agreement. A sentence that comports with that agreement therefore cannot exceed the defendant’s requested disposition.

Rule 12(e) availability of criminal record and presentence report

Rule 12(e) is amended to recognize an admission to sufficient facts in District Court as the equivalent of a guilty plea, see, e.g., Rule 12(a)(2), and to omit the requirement that the parties must file a written motion to obtain a presentence report. The former amendment conforms Rule 12(e) to Rule 12(a)(2) as it was amended in 2004, and the latter amendment achieves consistency between Rule 12(e) and Rule 28(d)(2). Further, the rule is amended to ensure that a judge considering whether to accept a binding plea agreement under Rule 12(d)(4) has both an updated record of the defendant’s criminal record and any presentence report prepared by probation under Rule 28(d)(2).

Rule 12(f)  inadmissibility of pleas, offers of pleas, and related statements

The 2015 amendments made no changes to Rule 12(f).

(Revised, 2004). Although analogous to Fed. R. Crim. P. 11, in its original form in 1979 this rule was drawn from a number of sources. See, e.g., A.B.A. Standards Relating to Pleas of Guilty (Approved Draft, 1968); A.L.I. Model Code of Pre-Arraignment Procedure §§ 350.1-.9 (POD 1975); National Advisory Commission on Criminal Justice Standards & Goals, Courts, Standards 3.1 et seq. (1973); President's Commission on Law Enforcement & Administration of Justice, Task Force Report: The Courts 4-13 (1967). The rule was amended in 1987 to remove the option, contained in original subdivision (c)(2)(B), which allowed a judge to sentence a defendant more harshly than the terms of a prosecutor's sentence recommendation without giving the defendant an opportunity to withdraw the plea. In 2004, the rule was further amended, retaining its basic structure but bringing the details of the process up to date, in light of the abolition of trial de novo and other developments in the law.

As the United States Supreme Court has observed:

Whatever may be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned.

Blackledge v. Allison, 431 U.S. 63, 71 (1977). Accord, Bordenkircher v. Hayes, 434 U.S. 357, 361-62 (1978). Rule 12 is intended to guarantee the proper administration of the guilty plea and plea bargaining process.

The proffer by a defendant of a guilty plea is a significant step in the criminal process. It represents a decision by the defendant not to put the Commonwealth to the test of proving his or her guilt beyond a reasonable doubt. Plea bargaining, of course, flows from the "mutuality of advantage" to defendants and prosecutors, each with their own reasons for wanting to avoid trial, Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), but the Commonwealth and the public have an interest in promoting fairness by insuring that each plea is an accurate reflection of guilt and a fair termination of criminal proceedings against a defendant. Rule 12 is intended to promote attainment of those goals.

Subdivision (a)

(a)(1). This subdivision is adopted from A.B.A. Standards Relating to Pleas of Guilty § 1.1 (Approved Draft, 1968), which substantially accords with Fed R. Crim. P. 11(a)-(b).

Under criminal practice prior to the adoption of rule 12, former G.L. c. 227, § 47A (St 1978, c. 478, § 298) provided that the defendant could plead not guilty, guilty, or nolo contendere. Rule 12 preserves these options.

The Rule does not establish the precise words a defendant must use in order to plead guilty. While the absence of the actual phrase "I plead guilty" or the word "guilty" is not sufficient by itself to invalidate a purported guilty plea, see Commonwealth v. Cavanaugh, 12 Mass. App. Ct. 543 (1981), in order to avoid confusion, a judge should clarify the intent of any defendant who does not use clear language to identify a desire to enter a guilty plea. Stipulations by the defendant to the truth of facts that are conclusive of guilt are the functional equivalent of a guilty plea and fall within the confines of Rule 12. See Commonwealth v. Hill, 20 Mass. App. Ct. 130 (1985). On the other hand, if all the defendant stipulates to is that the Commonwealth's witnesses would testify in the manner described by the prosecutor, then the defendant's act would not be the complete waiver that a guilty plea entails, see Commonwealth v. Garcia, 23 Mass. App. Ct. 259 , 265 (1986).

The requirements of this subdivision are to insure that the fact that the plea was the informed and voluntary act of the defendant appears upon a contemporaneous record of the proceeding, thus reducing the likelihood of a post-conviction attack on the validity of a plea of guilty or nolo contendere. See, e.g., Commonwealth v. Foster, 368 Mass. 100 (1975).

Therefore, except where a corporation is the defendant, or where the defendant is permitted by the General Laws to pay a fine by mail or by appearing before a clerk personally or by authorized agent, the defendant personally must plead if the plea is to be guilty or nolo contendere. The defendant must also personally plead not guilty except where his or her appearance is excused pursuant to Mass. R. Crim. P. 7(a)(2) and the court enters the plea on the defendant's behalf. Mass. R. Crim. P. 7(d)(2).

The requirement that the plea be accepted in open court is based upon G.L. c. 263 § 6, and furthers the goal that it be free from the suspicion of coercion and that it is a knowing and intelligent waiver of the defendant's right to a trial. Thus, all pleas should be entered under the scrutiny of the judge in formal proceedings and be recorded, whether by stenographic or electronic means.

(a)(2). An admission to sufficient facts to warrant a finding of guilty is a procedural device that had its genesis in the trial de novo system. Rather than entering a guilty plea, which would have had the consequence of limiting the de novo trial to the issue of the sentence, a defendant in the first tier of the de novo system could admit to sufficient facts and preserve his option of a full trial de novo. Admissions to sufficient facts have proved useful for another reason however. They offer a way to allow the defendant's case to be continued without a guilty finding, something that a traditional guilty plea is ill suited to accomplish. As the Supreme Judicial Court has recognized, a continuance without a finding (cwof) is a procedure that often serves the best interests of both the Commonwealth and the defendant. See Commonwealth v. Duquette, 386 Mass. 834, 840 (1982). Admissions to sufficient facts and cwofs were common at both levels of the trial de novo system in the District Courts. After the abolition of trial de novo, they continue to be prevalent in the District Court and Juvenile systems. See G.L. c. 278 § 18 (allowing a District Court defendant to request that a case be continued without a finding and requiring that an admission to sufficient facts be treated as the equivalent of a guilty plea for purposes of the "defense capped plea" procedure discussed infra in subsection (c)(2)(B)).

If a defendant desires to admit to sufficient facts, the judge should interrogate the defendant personally to insure that the defendant understands the nature and consequences of such an admission. In the years since Rule 12 was originally promulgated, the Supreme Judicial Court has held that an offer to admit to sufficient facts triggers essentially the same safeguards required when a defendant offers to plead guilty. See Commonwealth v. Lewis, 399 Mass. 761, 763 (1987); Commonwealth v. Duquette, 386 Mass. 834, 838 (1982).

(a)(3). Requiring the permission of the court to enter a guilty plea or plea of nolo contendere accords with the practice that prevailed prior to the adoption of Rule 12. By court rule, no defendant was permitted to plead guilty or nolo contendere to a complaint for which a sentence of imprisonment may be imposed unless the judge was fully satisfied that certain conditions had been met. See District Court Initial Rules of Criminal Procedure 4 (1971); Rules of the Mun. Ct. for the City of Boston Sitting for Criminal Business 4 (1971).

A defendant does not have a constitutional right to have a guilty plea accepted by the court, see North Carolina v. Alford, 400 U.S. 25, 38 n. 11 (1970); Commonwealth v. Dilone, 385 Mass. 281 (1982); Commonwealth v. Kelliher, 28 Mass. App. Ct. 915 (1989). An admission to sufficient facts is very much like an Alford plea or a plea of nolo contendere, in that the defendant does not explicitly admit guilt. The same considerations that may inform a judge's decision to refuse to accept that latter two pleas apply equally in the case of the former.

A judge may refuse to accept a guilty plea, admission to sufficient facts, or plea of nolo contendere for a variety of reasons. So long as the judge's decision is not arbitrary or based on an impermissible factor, the sound exercise of discretion supports a decision to refuse to accept a plea. See Rossman, Guilty Pleas, 2 Criminal Law Advocacy, P8.04(3)(a). Among the common reasons to refuse to accept plea are: the plea is involuntary; the defendant does not understand the nature of the charge [c] [5] [A], infra or the consequences of the plea [c] [3], infra; there is no factual basis for the plea [c] [5] [a], infra; or there is a factual dispute that should be litigated at trial.

Subdivision (b)

Section (e)(1)-(5) of Federal Rule of Criminal Procedure 11 is the prototype for this subdivision.

(b)(1). This subdivision outlines the scope of agreements as to concessions or other actions which the defendant and the prosecution may arrive at prior to plea proceedings before a judge. It must be emphasized that these negotiations are to be between defense counsel, or the defendant in an appropriate case, and the prosecution. Judges should not "participate as active negotiators in plea bargaining discussions," Commonwealth v. Gordon, 410 Mass. 498, 501 n. 3 (1991).

When a judge takes part in plea negotiations, it raises several troubling possibilities:

[it] 1) can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to the trial before this judge; (2)... makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3)... is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent.

Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 618 n.7 (1982) (quoting § 3.3(a) of the A.B.A. Standards, supra). For the type of participation that a judge should avoid, see Commonwealth v. Carter, 50 Mass. App. Ct. 902 (2000) (judge's statement at side bar that if defendant proceeded with trial and was found guilty, he would impose sentence of 18-20 years, but that if defendant pleaded guilty, sentence would be six years to six years and one day was coercive, making defendant's guilty plea involuntary).

The list of actions set out in this subsection that a prosecutor may include in a plea agreement is not exhaustive and allows for considerable flexibility. For example, the parties may agree to a joint sentence recommendation or to present disparate positions, and may propose that the agreement either does not bind the judge or to one that allows the defendant to withdraw the plea if the judge does not agree. Some of the concessions a prosecutor may make in plea negotiations relate to action over which the judge has control, such as the imposition of a particular sentence. Other concessions, as in an agreement not to bring additional charges, are totally within the purview of the prosecutor. Since the doctrine of separation of powers gives the prosecutor the authority to decide what criminal charge the Commonwealth should bring against a defendant, a judge may not accept a guilty plea to a lesser included offense over the prosecutor's objection. See Commonwealth v. Gordon, 410 Mass. 498, 503 (1991).

(b)(2). Early and full disclosure of a plea arrangement reduces the risk of an unfair agreement-unfair to the public because of an unwarranted concession by an overburdened prosecutor anxious to avoid trial, or unfair to the defendant because the concession is either illusory, or so irresistible in light of the inevitable risks of trial as to induce an innocent defendant to plead guilty. E.g., Jones v. United States, 423 F.2d 252, 255 (9th Cir 1970). Disclosure of the terms of a plea agreement also will allow the court to monitor the prosecutor's performance. In addition, placing the agreement on the record will avoid disputes that may arise in an attack on the validity of the guilty plea. For these reasons and to expedite the proceedings, this subdivision requires that the court be informed at the outset of the existence of any agreement. If upon inquiry under subdivision (c)(1), infra, the defendant denies any such agreement, it is incumbent upon the prosecutor to notify the court if an agreement in fact has been made. For an example of the difficulties that can arise when the parties do not disclose the terms of a plea agreement, see Commonwealth v. Johnson, 11 Mass. App. Ct. 835 (1981).

A judge does not improperly participate in plea negotiations simply by having the parties disclose the substance of a plea arrangement pursuant to this subdivision.

Subdivision (c)

Subdivision (c)(1) is a product of Santobello v. New York, 404 U.S. 257 (1971), where it was held 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.

Id. at 262. The Court stated further that the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances and if a plea is induced by promises, their essence must in some way be known. 404 U.S. 261, 262.

If upon inquiry the defendant replies that no promises have been made, the judge should instruct the defendant that any promises relating to the imposition of sentence are in no way binding on the court. See Subdivisions (b)(1)-(2), supra. This is because defendants are often loathe to disclose such promises, although it is believed that the increased acceptability of the plea arrangement procedure of this rule will obviate such difficulties.

The effect of such an instruction will depend on the facts of each case, but in no case can it cure the prejudice resulting from a broken promise.

The words of the Supreme Court as to the binding character of defense-prosecution agreements deserve repetition:

when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262 (1971). This accords with established doctrine in the Commonwealth long before the adoption of Rule 12. The Supreme Judicial Court, in 1899, stated that:

When ... promises are made by the public prosecutor or with his authority, the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept.

Commonwealth v. St. John, 173 Mass. 566, 569 (1899). See also, Commonwealth v. Benton, 356 Mass. 447 (1969); Commonwealth v. Harris, 364 Mass. 236, 238 (1973); Commonwealth v. Santiago, 394 Mass. 25 (1985); Commonwealth v. Parzyck, 41 Mass. App. Ct. 195 (1996).

Whether a plea bargain actually exists that obligates the prosecutor to perform a promise upon which the plea is contingent depends on an objective evaluation of the underlying circumstances that led to the plea. See Blaikie v. District Attorney for Suffolk County, 375 Mass. 613, 616 n. 2 (1978) (the prosecutor's subjective understanding of the bargain is irrelevant); Commonwealth v. Santiago, 394 Mass. 25, 28 (1985) ("The touchstone for determining whether a defendant has been improperly denied the advantages he expected from a plea bargain is whether that defendant has reasonable grounds for reliance on his interpretation of the prosecutor's promise."); Rossman, Guilty Pleas, 2 Criminal Law Advocacy, P7.05(1) (subjective impressions alone never entitle the defendant to the benefit of an illusory agreement).

If the court determines that a plea agreement existed, and that the defendant has fulfilled his or her part of the bargain, the defendant is entitled to the benefit of the prosecutor's performance of the countervailing promise. If the Commonwealth seeks to avoid performance on the ground that the defendant has not lived up to the terms of the agreement, then the prosecutor bears the burden of proof on this issue. See Doe v. District Attorney for Plymouth Dist., 29 Mass. App. Ct. 671, 677 n.6 (1991). In the usual course of events, all the defendant need do to fulfill his or her obligation under a plea agreement is to offer a guilty plea. However, the right to enforce a plea agreement may arise beforehand, if the defendant has relied to his or her detriment on a prosecutor's promise. See id. at 674 ("concerns about fairness which underlie the requirement that the government abide by its agreements are solidly engaged once an accused person has relied to his detriment upon a plea agreement, even if that occurs before entry of a guilty plea.") Compare Blaikie v. District Attorney for Suffolk County, 375 Mass. 613, 618 (1978) (Specific performance is in no sense mandated where no guilty plea has been entered, and the defendant's position has not been adversely affected).

The purposes of subdivision (c)(1) are fourfold. First, airing plea agreements in open court enhances public confidence in the administration of justice. E.g., Jones v. United States, 423 F.2d 252, 255 (9th Cir 1970). Secondly, disclosure of prosecutorial promises is the best way to test the voluntariness of the plea. By testing the strength of the inducement, the court obtains the best available evidence of its effect upon the defendant. Thirdly, this helps to implement the "factual basis" requirement of subdivision (c)(5)(A), for promises that offer unusual leniency to a defendant are suspect. Finally, this requirement will help to uncover promises that are by their nature improper and thus help to eliminate whatever incentive the prosecution might have to offer improper inducements.

Pursuant to this subdivision and subdivision (b)(2), supra, the prosecutor and defense counsel have the duty to come forward and disclose the existence and terms of a plea arrangement if the defendant balks at his opportunity to do so (even if the court does not specifically question the prosecutor or defense counsel on this issue). See Commonwealth v. Santon, 2 Mass. App. Ct. 614 (1974). This is important practically because often the defendant will not fully disclose the terms of the arrangement. It is important legally because the prosecutor and defense counsel should inform the court whenever they are aware that testimony offered in court is not in full accord with the truth as they know it. See Supreme Judicial Court Rule 3:07, Mass. Rules of Pro. Conduct, R. 3.3.

(c)(2). Under subdivision (c)(2)(A) the judge may inform the defendant that the court is disposed to accept the prosecutor's sentence recommendation, pending the outcome of the hearing required by subdivision (c)(5), and that the judge will not exceed that recommendation without giving the defendant an opportunity to withdraw the plea. As originally promulgated, subdivision (c)(2)(b) allowed the judge an alternative course of action, indicating that the court did not intend to entertain or consider any recommendation, in which event the judge's sentencing discretion would be unrestricted. In 1987, this provision was eliminated from the Rule. The effect of the amendment was to provide defendants pleading guilty pursuant to a sentencing bargain more certainty about their fate.

Prior to the 1987 amendment, a judge could force a defendant who chose to plead guilty on the strength of a plea agreement specifying that he or she should receive a particular sentence to "plead in the dark." If the judge took advantage of option (B) of the original subsection, he or she could categorically refuse to tell a defendant who entered a negotiated plea whether the court would abide by the recommendation or not. Such a judge forced the defendant to bear the risk of waiving the right to trial and receiving nothing in return. After 1987, defendants entering plea agreements based on a joint sentence recommendation knew where they stood prior to irrevocably waiving their right to a trial.

In 2004, this subsection was amended to add new subdivision (c)(2)(B), to reflect the "defense capped plea" procedure provided for by statute in the District and Juvenile Courts. Part of the legislation that abolished the trial de novo system, G.L. c. 278 § 18, gave defendants in District Court who did not reach an agreement with the prosecutor the right to offer a guilty plea or admission to sufficient facts contingent upon the judge's accepting any disposition of the case within the court's jurisdiction. The new subdivision (c)(2)(B) reflects this practice. The defense capped plea procedure applies in all District, Municipal and Juvenile courts. See G.L. c.119, § 55B. Neither Rule 12 nor G.L. c. 278 § 18 establish how many times a defendant may tender a defense capped plea. Individual judges are free to formulate their own policy on this issue as the needs of their particular courts dictate. A District or Juvenile Court judge has the power to accept a proposed disposition under this procedure even if it entails continuing the case without a finding over the objection of the prosecutor. Although ordinarily the separation of powers doctrine prevents a judge from foreclosing the prosecution's effort to conclude a case with either a conviction or acquittal on the original charge, the legislature's specific sanction of the cwof option in the defense capped plea procedure legitimates it. Compare Commonwealth v. Pyles, 423 Mass. 717 (1996) (grant of authority by G.L. c. 278 § 18 specifically gives District Court judges authority to continue a case without a finding over the objection of the prosecutor) with Commonwealth v. Cheney, 440 Mass. 568(2003) (Superior Court judge lacks power to dismiss case in the interest of justice over the objection of the prosecutor as this procedure is only available under G.L. c. 278 § 18 which applies only to District and Juvenile Courts); Commonwealth v. Tim T., 437 Mass. 592 (2002) (without statutory authority akin to G.L. c. 278 § 18 , Juvenile Court judge lacks power to place defendant on pretrial probation over the objection of the prosecutor). However, if a judge does accept the defendant's proposal to continue a case without a finding over the prosecutor's objection, the record should reflect the reasons for the conclusion that this action is in the best interests of justice. See Pyles, supra, at 723.

If the defendant has offered a plea or admission under either subdivision (c)(2)(A) or (c)(2)(B), the judge may not impose a sentence harsher than the one upon which the defendant's action is predicated. Judges should pay careful attention to dispositions involving probationary terms or a suspended sentence to ensure that they conform to the legitimate sentence expectation of the defendant. See e.g., Commonwealth v. Glines, 40 Mass. App. Ct. 95 (1996) (where District Court judge imposed a sentence of probation with a suspended term of five years, it was more severe than the defendant's request for probation with 2 1/2 years suspended); Commonwealth v. Barber, 37 Mass. App. Ct. 599 (1994) (where pursuant to a plea agreement, prosecutor recommended the defendant receive a 12-15 year sentence concurrent with other sentences the defendant received, and the judge imposed a suspended sentence of 12-15 years, consecutive to the other sentences the defendant received, and placed the defendant on probation for two years, the judge exceeded the terms of the prosecutor's recommendation).

(c)(3). This subdivision was originally patterned after Fed R. Crim. P. 11(c)-(d). In addition, it drew upon District Court Initial R. Crim. P. 4 (1971); Sections 1.4 and 1.5 of the ABA Standards Relating to Pleas of Guilty (Approved Draft, 1968); A.B.A. Standards Relating to the Function of the Trial Judge § 4.2 (Approved Draft, 1972); Rules of Criminal Procedure (U.L.A.) rule 444(b) (1974); A.L.I. Model Code of Pre-Arraignment Procedure § 350.4 (POD 1975); and the National Advisory Commission on Criminal Justice Standards & Goals, Courts, standard 3.7 (1973).

In 2004, this subdivision was amended to eliminate a provision allowing defense counsel to conduct the colloquy with the defendant. The Supreme Judicial Court has disapproved of defense counsel conducting guilty plea colloquies, as far back as Commonwealth v. Morrow, 363 Mass. 601 (1973) ("the spontaneity and flexibility of the dialogue, which supports a conclusion of voluntariness, can best be achieved where the judge asks the questions. This also avoids even the appearance that the colloquy is but a prearranged script. Therefore, we think it would be better practice for the judge to ask the questions.") By statute, defense counsel cannot conduct the part of the colloquy dealing with warnings of immigration consequences, see Commonwealth v. Villalobos, 437 Mass. 797 (2002).

The responsibility for conducting a meaningful colloquy with the defendant properly rests on the judge's shoulders. This requires "a continuing effort on the part of trial judges, with the help of counsel, so to direct their questions as to make them a real probe of the defendant's mind ... It is not to become a 'litany' but is to attempt a live evaluation of whether the plea has been sufficiently meditated by the defendant with guidance of counsel, and whether it is not being extracted from the defendant under undue pressure." Commonwealth v. Fernandes, 390 Mass. 714, 716 (1984) quoting Commonwealth v. Foster, 368 Mass. 100, 107 (1975) (emphasis added). The colloquy should include an inquiry into any mental illness from which the defendant may be suffering, and whether the defendant is under the influence of alcohol or drugs. See Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717-718 (1997).

The Supreme Judicial Court has suggested the utility of using a checklist to ensure that a plea colloquy is both comprehensive in scope and meaningful in substance. See Commonwealth v. Colon, 439 Mass. 519, 530 (2003) quoting Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 501-502 (1985):

"[Post conviction attacks on the validity of a plea can] be minimized if not wholly avoided, and justice better and more humanely administered in the first instance, if judges permitted themselves to be assisted by the carefully drafted and fully inclusive model questionnaires that have long been available ... We do not suggest that any model should be followed mechanically; indeed such a practice would be unwise because it could interfere with a probing exchange. Nevertheless a model can serve as a guide and checklist. We would suggest, as well, that a duty is cast on the lawyers on both sides to be alert and helpful if it appears that the judge through inadvertence may not be carrying out the full requirements of the rule. (Footnote omitted)".

The information about the consequences of a conviction should be part of the oral dialogue between the judge and the defendant. It is not sufficient for a judge to rely on the defendant's acknowledgment of this information on a written form. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572 (2001); Commonwealth v. Hilaire, 51 Mass. App. Ct. 818, 823 (2001) ("During a colloquy, the judge has the opportunity to observe and interact with the defendant and can communicate the warnings to the ... defendant with greater assurance than can be supplied by the preprinted ... form.").

While the judge is the one who conducts the colloquy, all the parties share the responsibility to make certain that defendants are informed of the consequences of a plea or admission. As the United States Supreme Court said, with respect to the obligation of defense attorneys in federal criminal cases:

Apart from the small class of rights that require specific advice from the court under Rule 11(c), it is the responsibility of defense counsel to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo.

Libretti v. United States, 516 U.S. 29, 50-51 (1995). The prosecutor also has a role to play in ensuring that the court is aware of any information that might bear on the legitimacy of the plea and that the colloquy covers all of the necessary topics. See State v. Rodriguez, 112 Ariz. 193, 540 P.2d 665 (1975).

Subdivision (c)(3)(A) enumerates the plea's immediate consequences of which a defendant must be specifically informed. It imposes a responsibility on the judge not only in cases where the defendant has tendered a traditional guilty plea or a nolo contendere plea, but also where a defendant has offered to admit to sufficient facts to warrant a finding of guilty. The Rule was amended in 2004 to cover this last category in recognition of the fact that in the years since Rule 12 was originally promulgated, the Supreme Judicial Court held that an offer to admit to sufficient facts triggers the essentially the same safeguards required when a defendant offers to plead guilty. See Commonwealth v. Duquette, 386 Mass. 834, 838 (1982) (an admission to sufficient facts is the functional equivalent of a guilty plea and the record must reflect the defendant waived the right to trial knowingly and voluntarily); Commonwealth v. Lewis, 399 Mass. 761, 763 (1987).

The United States Supreme Court held in Boykin v. Alabama, 395 U.S. 238, 243 (1969) not only that a defendant must understand that he or she waives the privilege against self incrimination, the right to trial by jury, and the right to confront one's accusers by entering a guilty, but also that a court could not presume a waiver of these rights from a silent record. Prior to the adoption of Rule 12 in 1979, the Supreme Judicial Court held in  Commonwealth v. Morrow, 363 Mass. 601, 604-05 (1973), that "it would be better practice to include specific inquiry as to the defendant's understanding waiver of the three constitutional rights.".

In 2004, this subdivision was amended to require an additional warning of rights be given to the defendant, concerning the right to be presumed innocent until proved guilty beyond a reasonable doubt. Although not constitutionally required, it is sound practice to include it. The Supreme Judicial Court has recommended its use in cases where the defendant is willing to plead guilty but does not acknowledge all of the elements of the factual basis. See Commonwealth v. Earl, 393 Mass. 738, 742 (1985) ("when a judge concludes that he is satisfied that there is a factual basis for a charge to which a defendant is willing to plead guilty, but the defendant does not acknowledge all the elements of the factual basis, it would be better practice for the plea judge to advise the defendant that his guilty plea waives his right to be presumed innocent until proved guilty beyond a reasonable doubt.").

It has been recommended that the proper formulation for advising a defendant as to his waiver of a jury trial is that "by pleading guilty he [gives] up his right to a 'trial with or without a jury,'" Commonwealth v. Hamilton, 3 Mass. App. Ct. 554, 557 n. 4 (1975). This instruction will serve to emphasize that, upon acceptance of a guilty plea, no trial will be held and all that remains is the imposition of sentence. However, the judge does not have to include information about the difference between a jury trial and a bench trial. See Commonwealth v. Gonsalves, 57 Mass. App. Ct. 925 (2003). Nor does the colloquy have to include information about the loss of the opportunity to appeal issues, such as the court's action in denying a suppression motion. See Commonwealth v. Quinones, 414 Mass. 423 , 435 (1993); Commonwealth v. Hamilton, 3 Mass. App. Ct. 554 , 558 n. 6 (1975) (if such information is given, it will "require careful formulation to avoid creating confusion as to the right to appeal to the Appellate Division of the Superior Court and the right to post-conviction remedies under special circumstances.").

Pursuant to subdivision (c)(3)(B), the defendant is to be informed of the sentencing consequences of a conviction based upon the tender of a plea or admission. The judge should inform the defendant of the maximum sentence of each offense to which the defendant is offering a plea or admission. In some circumstances, the maximum sentence will depend on whether the defendant has previously been convicted. The judge must take this possibility into account. General Laws c. 279, § 25, which mandates the maximum sentence for a felony defendant who has been previously convicted of two felonies and sentenced to more than three years on each, is an example of that type of provision contemplated by the "second offense" language of (c)(3)(B).

If probation is not a sentencing option, the judge must inform the defendant of any applicable mandatory minimum sentence as well. If the judge imposes a sentence of straight probation (one without a concomitant suspended term), the judge must inform the defendant of the maximum term, and any mandatory minimum term, that could be imposed if probation is revoked. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572 (2001). In 2004, this subsection was amended to eliminate the requirement that the judge inform the defendant of the maximum sentence possible if the defendant received consecutive sentences. See United States v. Kikuyama, 109 F.3d 536 (9th Cir. 1997) (where it is not mandatory to impose consecutive sentences, defendant need not be informed of that possibility in order to enter a knowing and intelligent guilty plea); United States v. Hamilton, 568 F.2d 1302 , (9th Cir.) cert. denied 436 U.S. 934 (1978) (the possibility of consecutive sentences was implicit in the separate explanation of the possible sentence on each charge).

Conviction of certain sex crimes carries with it three consequences that also must be included in the plea colloquy in a relevant case. First, if the defendant is subject to commitment as a sexually dangerous person, see G.L. c.123A, the judge must include notice of that possibility prior to accepting the plea or admission. This provision has been part of Rule 12 since its adoption, changing the practice that prevailed prior to 1979. See  Commonwealth v. Morrow, 363 Mass. 601, 606 (1973) (being subject to the "sexually dangerous person" provision "is but one of many contingent consequences of being confined" after conviction, and therefore need not be explained to a defendant). Since a 2004 amendment to G.L. c. 123A § 12 makes a defendant subject to commitment as a sexually dangerous person despite the nature of the offense to which the defendant is pleading guilty, so long as the defendant has been convicted any time in the past of a designated sex offense, a warning of the possibility of commitment under c. 123A should be included as a matter of routine unless it is clear from the defendant's prior record that it is not relevant.

Second, if the defendant is tendering a plea or admission to an offense which might subject him or her to the possibility of community parole supervision for life, a 2004 amendment to this subsection requires the judge to notify the defendant of this possibility. Because the prospect of life time parole is an additional form of punishment, it should be part of the information the defendant receives about the maximum sentence he faces. G.L. c. 265 § 45 specifically refers to community parole supervision for life as punishment.

Third, a 2004 amendment incorporated into this subsection the requirement of G.L. c. 6, § 178E(d), that a court accepting a plea for a sex offense inform the defendant that the plea may result in the defendant's being subject to the provisions of the sex offender registration statute. The statute states that failure to provide this information shall not be grounds to vacate or invalidate the plea, and the inclusion of this requirement in Rule 12(c)(3)(B) does not enlarge the grounds on which a defendant can invalidate a plea after the fact.

The failure to inform the defendant of the sentencing consequences of a plea may result in the conviction being set aside because the plea was not a knowing and intelligent waiver. E.g., Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572 (2001) (failure to inform the defendant of the maximum sentence and mandatory minimum sentence upon revocation of probation). However, "not every omission of a particular from the protocol of the rule ... entitles a defendant at some later stage to negate his plea and claim a trial." Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 494 (1984). E.g.,  Commonwealth v. Cavanaugh, 12 Mass. App. Ct. 543, 545-546 (1981) (where defendant received the sentence recommended by the prosecutor, the judge's failure to inform him of the maximum possible sentence was harmless beyond a reasonable doubt).

While there are consequences beyond those enumerated in this subdivision that might influence a defendant's decision to plead guilty, if they are collateral, in the sense of being contingent upon some future event or subject to discretion or under the control of the federal government or that of another state, they need not be incorporated into the plea colloquy. For example, ordinary parole consequences need not be part of the judge's warnings, see  Commonwealth v. Santiago, 394 Mass. 25, 30 (1985), nor is ineligibility to receive good time deductions from a sentence being served after conviction of certain crimes, see Commonwealth v. Brown, 6 Mass. App. Ct. 844 (1978) (rescript).

Subdivision (c)(3)(c) was added in 2004, and is based on the requirement in G.L. c. 278, § 29D, that a defendant who pleads guilty or nolo contendere must be advised that if he or she is not a United States citizen, a conviction may have the consequences of deportation, exclusion of admission, or denial of naturalization. This subdivision, however, is broader than the statute. The Supreme Judicial Court has held that this warning is also required when the defendant offers an admission to sufficient facts, see Commonwealth v. Mahadeo, 397 Mass. 314 (1986), and so the Rule requires an "alien" warning in those cases as well. In addition, the Rule requires the defendant to be warned of the potential adverse impact of the plea or admission, rather than of a conviction, as the statute requires. Under current immigration law, the statute's warning may be misleading since adverse consequences can flow from an admission to sufficient facts not followed by a conviction. See Commonwealth v. Villalobos, 437 Mass. 797 (2002). By warning the defendant that a plea or admission can have adverse immigration consequences, the court necessarily conveys not only the message about the effect of an ensuring conviction but also alerts the defendant to the possibility of adverse consequences from the plea or admission itself.

(c)(4). To this point the court has been informed of the existence of and substance of a plea arrangement, has indicated a willingness to entertain that arrangement, and has informed, or caused, the defendant to be informed of the consequences of acceptance of the plea. The defendant now formally tenders a plea or admission to the court, which then conducts a hearing to determine whether it is a knowing, intelligent, and voluntary waiver.

(c)(5). By requiring an inquiry into the "voluntariness" of the plea or admission, this subdivision requires the judge to ensure two basic foundations for a valid waiver. First is that the defendant understands the consequences of his or her act. Courts often refer to this standard as requiring the plea to be a knowing and intelligent act. In addition, the defendant's decision must be free from improper influence. As the Supreme Court, in Johnson v. Zerbst, 304 U.S. 458(1938), declared, a waiver is "an intentional relinquishment or abandonment of a known right or privilege." Id. at 464 (emphasis supplied).

In order to enter a valid guilty plea, the defendant must be competent. Under both the federal and state constitutions, the test of competence to plead is the same as that for standing trial. See Godinez v. Moran, 509 U.S. 389 (1993); Commonwealth v. Blackstone, 19 Mass. App. Ct. 209 (1985). The standard for determining competency to stand trial is "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Commonwealth v. Russin, 420 Mass. 309, 317 (1995) quoting Dusky v. United States, 362 U.S. 402, 402 (1960). The substituted judgment doctrine, by which the court appoints a guardian to act, is not an appropriate vehicle for an incompetent defendant who offers to plead guilty. See Commonwealth v. Del Verde, 398 Mass. 288 (1986).

In Huot v. Commonwealth, 363 Mass. 91, 99-101 (1973), the court recognized that Boykin v. Alabama, 395 U.S. 238(1969) placed the burden of establishing on review that a guilty plea is made voluntarily and intelligently is on the prosecution. The Commonwealth must meet that burden and the hearing that this subsection establishes is designed to meet that end.

The Supreme Judicial Court, in Commonwealth v. Lopez, 426 Mass. 657, 660, (1998), stated the appropriate standard:

As a general proposition of constitutional law, a guilty plea may be withdrawn or nullified if it does not appear affirmatively that the defendant entered the plea freely and voluntarily.  Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). See Brady v. United States, 397 U.S. 742, 748 (1970);  Commonwealth v. Foster, 368 Mass. 100, 106 (1975). Rule 12 (c) (3) of the Massachusetts Rules of Criminal Procedure, requires that a defendant be informed on the record of the three constitutional rights which are waived by a guilty plea: the right to trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, supra at 243;  Commonwealth v. Lewis, 399 Mass. 761, 764 (1987). Moreover, the plea record must demonstrate either that the defendant was advised of the elements of the offense or that he admitted facts constituting the unexplained elements. See Henderson v. Morgan, 426 U.S. 637, 646, (1976); Commonwealth v. Colantoni, 396 Mass. 672 , 678-679 (1986). Finally, the plea record must demonstrate that the defendant pleaded guilty voluntarily and not in response to threats or undue pressure. See Commonwealth v. Foster, supra at 107.

The first distinct requirement is that the defendant understand the nature of the charge. A plea may be involuntary because the defendant has such an incomplete understanding of the charge that the plea is an unintelligent admission of guilt. Without adequate notice of the nature of the charge against him, or an indication that the defendant in fact comprehends the charge, the plea cannot stand as voluntary. See Smith v. O'Grady, 312 U.S. 329 (1941). In Henderson v. Morgan, 426 U.S. 637 (1976), the Supreme Court held that a guilty plea to a charge of second-degree murder was involuntary because the defendant was not informed that intent to cause death was an element of that crime. The Court assumed, without deciding, that notice of the true nature, or substance, of a charge does not always require a description of every element of the offense, however. Id. at 647 n. 18. The Court agreed with the government that in the usual case, the reviewing court should examine the totality of the circumstances and determine whether the substance of the charge, as opposed to its technical elements, was conveyed to the defendant, rather than testing the voluntariness of his plea according to whether a ritualistic litany of the formal legal elements of the offenses was read to him.

There are three ways that the record of a plea or admission can serve as satisfactory evidence that the defendant had the requisite knowledge of the elements of the charge: 1) the judge can explain the elements of the crime; 2) counsel may represent that he or she has explained them to the defendant; or, 3) the defendant may admit or stipulate to facts constituting the elements. See  Commonwealth v. Colantoni, 396 Mass. 672, 679 (1986). The defendant's signature on a form that he or she is aware of the elements of the charge is not sufficient. See Commonwealth v. Jones, 60 Mass. App. Ct. 88 (2003).

While in a post-conviction context it may suffice for the record to reflect that counsel stated that the defendant was advised of the elements, or for the defendant to have admitted an act constituting the elements, the judge should not rely on these means as the primary method of establishing the requisite knowledge. See Colantoni, supra, 396 Mass. at 679 n. 5. The best way to ensure that the defendant knows the elements of the crime is for the judge to explain them as part of the colloquy. This can be fairly easily done in most cases by reading to the defendant the indictment or complaint. However, in some cases, it may require more than a simple statement of the crime itself. E.g.  Commonwealth v. Jones, 60 Mass. App. Ct. 88 (2003) (simply telling the defendant that he is charged with assault and battery does not sufficiently apprise him of the elements of the crime); Commonwealth v. Pixley, 48 Mass. App. Ct. 917(2000) (telling the defendant only that he was charged with possession of cocaine with intent to distribute did not satisfy requirement of explaining the elements as mandated by this subsection).

For an example of the scope of the examination conducted to satisfy the Boykin requirement of an affirmative showing of understanding and voluntariness, see Commonwealth v. Taylor, 370 Mass. 141, 144-45 n. 5 (1976). In conducting the examination, the judge is to rely on his or her own observations and discernment in concluding that the defendant understands the questions. See Commonwealth v. Leate, 367 Mass. 689, 696 (1975).

In order for the plea or admission to be voluntary, the defendant's decision to waive a trial must be free from the influence of factors that have no legitimate role to play in the process. See Rossman, Guilty Pleas, 2 Criminal Law Advocacy, ¶ 2.03 (listing improper threats, such as physical abuse). Therefore, the judge should inquire whether the defendant's decision to waive a trial is a result of any threats or inducements apart from those identified in the plea agreement. See Commonwealth v. Fernandes, 390 Mass. 714, 719 (1984). While no particular form of words need be used to make this inquiry, see  Commonwealth v. Lewis, 399 Mass. 761, 764 (1987), a brief colloquy that does not probe the defendant's mind will not do. See Commonwealth v. Quinones, 414 Mass. 423, 434 (1992); Fernandes, supra, 390 Mass. at 717-719. It is useful, however, for the judge to include in the colloquy a question about whether the defendant has consulted with counsel about the decision to waive a trial and is satisfied with counsel's assistance. Cf. Fernandes, supra, 390 Mass. at 718.

The pressure of a plea bargain that holds out no more than the possibility of a harsher sentence if the defendant goes to trial and is convicted is not by itself an improper influence that would render a guilty plea not voluntary. See Commonwealth v. Tirrell, 382 Mass. 502, 510 (1981):

neither this court nor the Supreme Court has required total absence of psychological or emotional pressure. In any plea bargaining situation the defendant is necessarily put to a difficult choice -- the risk of a more serious sentence after trial and conviction against the probabilities of the trial judge's accepting the prosecutor's recommended leniency. The defendant's fond hopes for acquittal must be tempered by his understanding of the strength of the case against him, his prior record, and the completely unknowable reaction of the trier of fact. See  Commonwealth v. Leate, 367 Mass. 689, 694 (1975). Without some showing of peculiar susceptibility, which rendered the defendant so gripped by fear of the ... penalty or hope of leniency that he ... could not...rationally weigh the advantages of going to trial against the advantages of pleading guilty," Brady v. United States, 397 U.S. 742, 750 (1970). We cannot say that the pressure of the decision per se destroys voluntariness. Contrast Pate v. Robinson, 383 U.S. 375, 385-386 (1966) (record of irrational conduct required hearing on defendant's incompetency to stand trial).

(c)(5)(A). This subdivision is based upon A.B.A. Standards Relating to Pleas of Guilty § 1.6 (Approved Draft, 1968) and accords with District Court Initial R. Crim. P. 5 (1971). See Fed R. Crim. P. 11(f).

The "factual basis" standard can be met by having the prosecutor state for the record the evidence that the Commonwealth would have presented had the case gone to trial. In addition, the court may require sworn testimony from a prosecution witness or of the defendant. See 8 J. Moore, Federal Practice ¶ 11.03 [3] at 11-75 (1978); A.B.A. Standards Relating to Pleas of Guilty § 1.6, comment at 32 (Approved Draft, 1968).

North Carolina v. Alford, 400 U.S. 25, (1970), establishes that the United States Constitution does not prohibit the court from accepting a guilty plea from a defendant who nevertheless asserts his or her innocence. An Alford plea is a permissible way to establish a defendant's guilt without a trial. See Commonwealth v. Nikas, 431 Mass. 453 (2000); Huot v. Commonwealth, 363 Mass. 91 (1973). "Under Alford, a defendant who professes innocence may nevertheless plead guilty and 'voluntarily, knowingly and understandingly consent to the imposition of a prison sentence,' if the State can demonstrate a 'strong factual basis' for the plea."  Commonwealth v. Del Verde, 398 Mass. 288, 297 (1986), quoting North Carolina v. Alford, 400 U.S. 25, 38 (1970). If a factual basis for such a plea exists, it is only fair to allow a defendant who is aware of the law, the facts, and the consequences of his plea, to attempt to reduce the severity of his or her punishment by pleading guilty. See Commonwealth v. Hubbard, 371 Mass. 160 (1976). The defendant is free to weigh the strength of the Commonwealth's evidence and on this basis to waive the right to trial. If the waiver is voluntary and intelligent it should be upheld.

Subdivision (c)(5)(A) is not made applicable to nolo pleas. The purpose of permitting a nolo plea is to relieve the defendant of the adverse repercussions that can result from the introduction of evidence from the present criminal proceedings. This purpose would be undermined to the extent that disclosures led to subsequent civil proceedings or evidence to be used at such proceedings, notwithstanding the fact that the disclosures themselves could not be used in evidence. The Federal Rules Advisory Committee stated in its note to Fed R. Crim. P. 11: "it is desirable in some cases to permit entry of judgment upon a plea of nolo contendere without inquiry into the factual basis for the plea.".

(c)(5)(B). At the conclusion of the hearing, if the judge finds that the plea "is the defendant's own, guided by reasonable advice of his counsel, his own knowledge of what he has done, and a fair understanding of the alternatives," it will be considered voluntary. Commonwealth v. Manning, 367 Mass. 699, 706 (1975). The judge may then accept the plea or, notwithstanding the fact that it is voluntary, reject it. See subdivision (c)(6), infra.

(c)(5)(C). If the plea or admission is accepted, the judge shall proceed with sentencing as after a verdict or finding of guilty under Mass. R. Crim. P. 28(b).

(c)(6). This subdivision is drawn in part from Fed R. Crim. P. 11(e)(3)-(4) and from A.B.A. Standards Relating to Pleas of Guilty § 2.1 (Approved Draft, 1968). See Rules of Criminal Procedure (U.L.A.) rule 444(e) (1974). Compare Fed R. Crim. P. 32(d) (plea may be withdrawn after sentence only "to correct manifest injustice") with A.L.I. Model Code of Pre-Arraignment Procedure § 350.6 (POD 1975) (defendant may withdraw plea if sentence to be imposed is more severe than that provided in plea agreement).

Previously existing statutes relative to the withdrawal of pleas after imposition of sentence are intended to be unaffected by this rule. General Laws c. 278 §§ 29A (St 1962, c. 310, § 2) and 29C (St 1959, c. 167, § 1) permitted the retraction of any sentence and the withdrawal of any plea upon which the sentence was imposed within sixty days of sentencing if justice has not been done. Now see Mass. R. Crim. P. 29. In a case where the defendant has the right to counsel and is neither represented nor validly waived counsel, General Laws c. 278, § 29B grants the defendant an absolute right to withdraw a plea prior to sentencing.

This subdivision addresses two classes of cases. One is where the defendant's plea or admission is contingent upon a prosecutor's sentence recommendation. The other, referred to in language added in 2004, occurs where the defendant has tendered a defense capped plea. In either case, the judge has many available options. After reviewing the arrangement and, if desired, the probation report, the judge may concur in the disposition; concur in the disposition, but condition the concurrence upon facts being found consistent with representations made by the parties; refuse to accept the disposition; or propose an alternative disposition, giving the defendant a reasonable opportunity to consider the alternative before deciding whether to persist in the plea or admission or proceed to trial. If the judge intends to vary from the recommended or tendered disposition in a manner which is detrimental or prejudicial to the interests of the defendant, the defendant has an absolute right to withdraw the plea or admission.

It should be noted that where a plea or admission is predicated on a promise by the prosecutor to take unilateral action over which the judge has no control, such as entering a nolle prosequi to certain charges, this subsection is not applicable. The "[p]ower to enter a nolle prosequi is absolute in the prosecuting officer ... except possibly in instances of scandalous abuse of the authority." Commonwealth v. Dascalakis, 246 Mass. 12 , 18 (1923). See Mass. R. Crim. P. 16. In a case such as this, disclosure to the court prior to the tender of the plea serves no purpose other than determining whether the plea is knowingly and voluntarily made.

While this subdivision is the only provision in Rule 12 that explicitly addresses the issue of a defendant's withdrawing a plea, a judge has authority to entertain such a motion on other grounds. Prior to its amendment in 1987, Rule (c)(2)(B) contained an explicit statement that if the defendant persisted in pleading guilty despite notice of the judge's intention to exceed the prosecutor's recommended sentence, the defendant could not thereafter withdraw the plea except "in the discretion of the judge." This provision was eliminated in 1987. The former subsection (c)(2)(B) gave the judge "broad discretion to allow a defendant to withdraw [a] plea before ... sentence [has been] imposed." Commonwealth v. DeMarco, 387 Mass. 481, 484 (1982); see also Commonwealth v. Clerico, 35 Mass. App. Ct. 407, 413 n. 7(1991). The removal from Rule 12 of the reference to a judge's discretion to allow the defendant to withdraw a plea does not alter the law that otherwise controls in this situation. If the defendant can show that the plea was not voluntary or tendered knowingly, then a motion for withdrawal should be granted, for these requirements are constitutional prerequisites to the validity of the plea. If, on the other hand, the defendant seeks to withdraw a plea prior to sentencing despite its being knowing and voluntary, the judge should balance the reason put forward by the defendant against any prejudice to the Commonwealth. Cf. Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 494 (1984). After sentencing, however, the proper vehicle to seek to withdraw a guilty plea is a motion under Rule 30 (b).

The 2004 revision of Rule 12 deleted subdivision (d), which was designed to discourage the practice of "judge shopping" by tendering, withdrawing, and retendering a guilty plea until a judge is found who will agree to the disposition favored by the defendant. A uniform policy on whether a defendant may ask more than one judge to accept a sentence recommendation or defense capped plea is unnecessary. Individual judges still retain the discretion to refuse to entertain such requests.

(e)

The conditions governing the availability to the defendant of the probation report are the same as those which control under Mass. R. Crim. P. 28(d)(3) . It is important for the defendant to have access to this information so that he or she can more effectively bargain with the prosecutor and more accurately predict how the court will react to proposed dispositions. The judge need not always view the probation report to properly decide whether it should be released to the defendant. The judge can rely on representations made by the probation department or by the prosecutor in reaching this decision. The judge may examine the defendant's criminal record before accepting a plea or admission. See Commonwealth v. Whitford, 16 Mass. App. Ct. 448, 453 (1983).

Subdivision (f)

In its original form, this subdivision changed the prior rule in Massachusetts that a plea that has been withdrawn may be introduced in subsequent proceedings as an admission by the defendant. See Morrisey v. Powell, 304 Mass. 268 (1939). The current position reflected in this subdivision is consistent with the modern trend and with the rule in federal courts. See A.B.A. Standards Relating to Pleas of Guilty, §§ 2.2, 3.4 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) rule 444(f) (1974); A.L.I. Model Code of Pre-Arraignment Procedure § 350.7 (POD 1975). It is drawn from Fed. Cr. Crim. P. 11(e)(6), although it is broader in scope, since unlike the federal rule, its application to statements made in the course of plea negotiations is not limited only to circumstances where the defendant is negotiating with a government attorney. See Commonwealth v. Wilson, 430 Mass. 440 , 443 (1999). However, simply expressing a desire to plead guilty to a police officer who does not have any authority to bind the Commonwealth does not bring a defendant's statement within the scope of this subdivision. Id.

In 2004, the subdivision was amended to include admissions to sufficient facts among the category of actions by the defendant that are not admissible if later withdrawn.

Permitting a prosecutor to offer evidence that a defendant unsuccessfully tendered a plea or admission undermines the rationale behind the decision allowing the plea or admission to be withdrawn in the first place. See Kercheval v. United States, 274 U.S. 220 (1927). Additionally, juries tend to give undue weight to the introduction of prior pleas. Of course, if the reason why the plea or admission was withdrawn was that it was not knowing and voluntary, then the federal Constitution prohibits its use in a subsequent proceeding. Cf. White v. Maryland, 373 U.S. 59 (1963) (barring use of evidence that the defendant had entered a guilty plea without the assistance of counsel, where the defendant did not validly waive the right to counsel).