Commonwealth v. Gomez

• Decision Date: 10 August 2018
• Docket Number: SJC-12437
• Citation: 104 N.E.3d 636,480 Mass. 240
• Parties: COMMONWEALTH v. Franke GOMEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

480 Mass. 240

104 N.E.3d 636

COMMONWEALTH

v.Franke GOMEZ.¹

SJC-12437

Supreme Judicial Court of Massachusetts, Middlesex..

Argued April 2, 2018

Decided August 10, 2018

Dana Alan Curhan, Boston, for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

LOWY, J.

In response to a reported question from a Superior Court judge, we decide whether a defendant may enter a guilty plea expressly conditioned on his or her right to appeal from the denial of a motion to suppress evidence, otherwise known as a conditional guilty plea. Although Mass. R. Crim. P. 12, as appearing in 470 Mass. 1501 (2015), does not specifically authorize a conditional guilty plea and nothing in the language of the rule or its amendments contemplates this approach, neither does the rule or any statute prohibit such a plea. In response to the reported question, we exercise our superintendence power to conclude that a conditional guilty plea is permissible if it is entered with the consent of the court and the Commonwealth and identifies the specific ruling from which the defendant intends to appeal. In light of our decision, we ask this court's standing advisory committee on the rules of criminal procedure (standing advisory committee) to propose a suitable amendment to rule 12 to delineate the requirements for conditional guilty pleas. In the interim, we instruct judges and parties to follow the approach taken in Fed. R. Crim. P. 11(a)(2).²

1. Background. a. Factual summary. After a hearing on the defendant's motion to suppress, the motion judge found the following facts. On October 6, 2014, a Framingham police sergeant and detective stopped for dinner at a restaurant in Framingham. Inside, they saw two men who were known to them, the defendant and another man who they believed had an outstanding warrant for his arrest. They then determined that the man did not have an outstanding warrant, and left the restaurant to return to their unmarked police cruiser.

From the cruiser, the officers continued to observe the defendant as he left the restaurant and met a man later identified as Alcides Zimmerman. The defendant reached into his front right pants pocket; Zimmerman then did the same, and handed the defendant some money. The officers saw the defendant touch Zimmerman's hand two times, after which Zimmerman drove away in his motor vehicle. The officers followed Zimmerman's vehicle for one mile before executing an investigatory stop. The sergeant asked Zimmerman, "Where is it?" and Zimmerman responded, "In my pocket." Zimmerman reached his hand toward his pocket, but the sergeant grabbed it and then reached his own hand into Zimmerman's pocket, retrieving a small glassine bag with a white powdery substance.

The officers arrested Zimmerman and then returned to the restaurant where they had seen the defendant. They entered the restaurant with two additional officers. The defendant was standing with another person, counting a large amount of money. As the officers approached, the defendant reached toward his waistband. The officers each grabbed one of the defendant's arms and escorted him from the restaurant. The defendant was "sweating profusely and appeared to be weak in the knees." He moved and shook his body as if trying to remove something from his waist. The officers pat frisked him and found a loaded handgun. On searching him further, they found ammunition and seven glassine bags, one of which had a substance resembling heroin. The defendant was then arrested.

b. Prior proceedings. The defendant was indicted for narcotics and firearm offenses.³ He moved to suppress the evidence seized following the search of his person. A Superior Court judge denied the motion after an evidentiary hearing; the judge reasoned that the officers had conducted a proper investigatory stop because they had reasonable suspicion that a crime was being committed, and also reasonably suspected that when they approached the defendant, he was reaching for a weapon. Prior to the scheduled trial date, the defendant "indicated he wishe[d] to plead guilty and avoid the costs of trial, provided he [were] able to secure appellate review of the ruling on the motion to suppress and to withdraw his plea if he prevail[ed] on appeal." He argued that "the outcome of the trial is a fait accompli, effectively determined by the suppression ruling." The Commonwealth was initially amenable, but ultimately would not agree to a conditional guilty plea. A second Superior Court judge stayed the trial date and reported the case to the Appeals Court in order to obtain an answer to the following question:⁴

"To avoid a trial that is otherwise only required to preserve appellate review of the denial of a dispositive pretrial motion, may the Superior Court, with the Commonwealth's agreement or over the Commonwealth's objection, accept a defendant's guilty plea and sentence the defendant expressly conditioned on [the] defendant's rights to appeal the denial of the specific dispositive pretrial motion and to withdraw his/her plea if defendant prevails on appeal?"

We transferred the case from the Appeals Court to this court on our own motion.

2. Discussion.⁵ Ordinarily, a guilty plea "by its terms waives all nonjurisdictional defects." Commonwealth v. Cabrera, 449 Mass. 825, 830, 874 N.E.2d 654 (2007). "This is because a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case" (citation, quotations, and alterations omitted). Commonwealth v. Fanelli, 412 Mass. 497, 500, 590 N.E.2d 186 (1992). Accordingly, this court has repeatedly denied a defendant's attempt to appeal from the denial of a suppression motion after he or she has entered a guilty plea. See, e.g., Cabrera, 449 Mass. at 830-831, 874 N.E.2d 654 ; Commonwealth v. Quinones, 414 Mass. 423, 432, 435, 608 N.E.2d 724 (1993) ; Garvin v. Commonwealth, 351 Mass. 661, 663-664, 223 N.E.2d 396, cert. denied, 389 U.S. 13, 88 S.Ct. 119, 19 L.Ed.2d 12 (1967). These decisions, however, were made in the context of unconditional guilty pleas. See generally Cabrera, supra ; Quinones, supra ; Garvin, supra. See also United States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007) (pleas are presumptively unconditional). This court has not yet considered whether a defendant may preserve his or her right to appeal from the denial of a motion to suppress at the time the defendant tenders a guilty plea.

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

regarding conditional guilty pleas. The rule permits a defendant to enter a guilty plea, with or without an agreement with the Commonwealth, and details the procedural requirements in each circumstance. With regard to pleas that involve an agreement with the Commonwealth, Mass. R. Crim. P. 12 (b) (5) (A) expressly permits a plea agreement conditioned on a particular sentence and charge concessions. The judge may accept or reject such a plea agreement. If the judge accepts the plea agreement and the defendant's plea, Mass. R. Crim. P. 12 (d) requires the judge to sentence the defendant according to the terms of the plea agreement. Mass. R. Crim. P. 12 (d) (4) (A). Therefore, rule 12 only explicitly recognizes pleas conditioned on dispositional terms, such as sentences and charge concessions, as outlined in Mass. R. Crim. P. 12 (b) (5) (A).⁶

The language of rule 12 also differs significantly from Fed. R. Crim. P. 11(a)(2), which has expressly permitted conditional guilty pleas since 1983.⁷ See Advisory Committee Notes to Rule 11 (1983), Federal Criminal Code and Rules, Rules of Criminal Procedure, at 68-69 (Thomson Reuters 2018 rev. ed.). The Federal rule states: "With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea." Fed. R. Crim. P. 11(a)(2).

Where rule 12 expressly differs from the comparable Fed. R. Crim. P. 11, we have declined to interpret rule 12 according to Federal standards. For example, in Commonwealth v. Dean-Ganek, 461 Mass. 305, 312, 960 N.E.2d 262 (2012), we recognized that, " ‘[i]n contrast with Fed. R. Crim. P. 11, our rule 12 does not identify any plea agreement where the recommendation shall bind the judge,’ and Fed. R. Crim. P. 11(c)(3) requires a judge at the plea hearing to accept or reject a ‘plea agreement’ while our rule 12 (c) (5) (B) requires a judge at the plea hearing to accept or reject ‘the plea or admission,’ not the plea agreement." See Commonwealth v. Wilson, 430 Mass. 440, 442-443, 720 N.E.2d 464 (1999) (rejecting Commonwealth's argument that Mass. R. Crim. P. 12 [f], which prevents statements made in course of plea negotiations from being admissible against accused, be interpreted to exclude only statements from government attorneys, as is case under Federal rules).

It is doubtful, then, that rule 12 can reasonably be interpreted to allow for conditional pleas, particularly because there is already an existing statute and rule that allows for a defendant to seek leave from a single justice of this court to take an interlocutory appeal from the denial of a motion to suppress. See G. L. c. 278, § 28E ; Mass. R. Civ. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016). At the same time, "[a] defendant only may apply for leave to pursue such an appeal, and a single justice of this court, as a matter of discretion, may allow such an application if the single justice determines ‘that the administration of justice would be facilitated.’ " Commonwealth v. Ringuette, 443 Mass. 1003, 1004, 819 N.E.2d 941 ...