COMMONWEALTH vs. DEVIN ROMAN.

LOWY, J. At the heart of this case are the different procedural protections afforded Superior Court criminal defendants -- as compared to District Court and Boston Municipal Court criminal defendants, as well as juveniles in the Juvenile Court -- when those defendants tender guilty pleas without agreeing with the Commonwealth on a sentence. [Note 1] When there is such an unagreed plea, both the defendant and the Commonwealth may provide

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their own recommendations with respect to sentencing to a judge. In these circumstances in the Superior Court, pursuant to Mass. R. Crim. P. 12 (c) (4) (A), as appearing in 470 Mass. 1501 (2015) (rule 12 [c] [4] [A]), a defendant tenders a "Commonwealth-capped plea": the defendant has a statutory right to withdraw the guilty plea if the trial judge would impose a sentence that exceeds the Commonwealth's recommendation. In contrast, in these circumstances in the District Court, a defendant tenders a "defendant-capped plea": the defendant has a statutory right to withdraw the guilty plea if the trial judge would impose a sentence that exceeds the defendant's own recommendation.

The defendant, Devin Roman, was charged, pleaded guilty, and was sentenced in the Superior Court. He seeks to withdraw his plea on the basis of a facial challenge to this procedural scheme, which is laid out in G. L. c. 278, § 18, [Note 2] and rule 12 (c) (4) (A). [Note 3]

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The defendant argues that denying Superior Court defendants the statutory right to a defendant-capped plea violates equal protection principles under both the Federal and State Constitutions. We disagree, and we therefore affirm.

Background. In April 2016, the defendant was indicted on eight charges: two counts of armed assault with intent to murder; two counts of assault by means of a dangerous weapon; one count of assault and battery by means of a dangerous weapon; one count of illegal possession of a firearm; one count of removal or mutilation of serial or identification numbers of firearms during the commission of a felony; and one count of unlawful possession of a loaded firearm. All charges stemmed from an incident on March 19, 2016, during which the defendant targeted and then repeatedly shot at three unarmed individuals, injuring one of them.

The defendant was arraigned in the Superior Court in May 2016, and he pleaded not guilty to all charges. In February 2017, the defendant appeared before a judge of the Superior Court (sentencing judge) to change his pleas. With counsel present -- and after a colloquy with the sentencing judge, during which the judge verified the defendant's capacity to make a voluntary and intelligent plea -- the defendant tendered guilty pleas for all charges. The Commonwealth and the defendant had not reached an agreement with respect to sentencing recommendations. Accordingly, pursuant to rule 12 (c) (4) (A), the sentencing judge informed the defendant of his statutory right to a Commonwealth-capped plea: "I will not impose a sentence any longer or more severe than what the prosecutor's recommending unless I tell you first and let you withdraw your guilty plea, if you want to."

The Commonwealth recommended a series of mostly concurrent sentences, the longest of which was from fourteen to fifteen years in State prison, [Note 4] while the defendant sought a sentence of

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from seven to nine years. [Note 5] The sentencing judge opted for a disposition that would impose a series of mostly concurrent sentences, the longest of which was from ten to twelve years in State prison.

In January 2020, the defendant filed a motion to withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) (rule 30 [b]). In September 2020, the defendant filed, and a different Superior Court judge (motion judge) granted, a motion to admit evidence of racial disparities in the Massachusetts criminal justice system. [Note 6] The defendant argued before the Superior Court judge, as he does on appeal, that he should be able to withdraw his plea because "[r]ule 12 (c) (4) (A) violates . . . equal protection guarantees by withholding the right to a defendant-capped plea from Superior Court defendants only." In November 2020, after a hearing, the motion judge denied the defendant's motion to withdraw his guilty plea. The defendant filed a notice of appeal, and we granted his application for direct appellate review.

Discussion. 1. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to [rule] 30 (b)." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). The defendant's argument focuses not on the particularities or adequacy of his plea but rather on the overarching procedural scheme under which it was tendered. Specifically, the defendant has raised a constitutional challenge to this scheme. When evaluating a trial judge's ruling on such a challenge, we "make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021).

2. Constitutional claims. In particular, the defendant argues that G. L. c. 278, § 18, together with Mass. R. Crim. P. 12 (rule 12), as amended, 482 Mass. 1501 (2019), discriminate against Superior Court criminal defendants in violation of the Fourteenth

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Amendment to the United States Constitution and cognate provisions of the Massachusetts Declaration of Rights. Together, G. L. c. 278, § 18, and rule 12 confer a right to defendant-capped pleas to defendants in the District Court. See Charbonneau v. Presiding Justice of the Holyoke Div. of the Dist. Court Dep't, 473 Mass. 515, 518 (2016). The defendant contends that the denial of this statutory right to Superior Court defendants constitutes a violation of equal protection principles. However, because there is a rational basis for this distinction between defendants in the Superior Court and those in the District Court, we disagree.

a. Defendant-capped and Commonwealth-capped pleas. A defendant may tender a guilty plea either having struck a bargain with the Commonwealth or not having done so. See G. L. c. 278, § 18; Mass. R. Crim. P. 12. Where a defendant has entered into an agreement with the Commonwealth, such an agreement may include a sentence recommendation acceptable to both parties. Mass. R. Crim. P. 12 (b) (5) (A). Defendants may withdraw their guilty pleas and choose instead to proceed to trial if a judge would impose a sentence that exceeds an agreed-upon recommendation. Mass. R. Crim. P. 12 (c) (4) (B).

At issue here is what happens when defendants plead guilty without an agreed-upon recommendation -- specifically in what circumstances may such defendants withdraw their guilty pleas in light of the sentences subsequently imposed upon them. In these situations -- where the Commonwealth and defendants have offered opposing sentence recommendations -- defendants in the District Court have a statutory right to withdraw their pleas if their sentences would exceed their own recommendations (i.e., they tender defendant-capped pleas), see G. L. c. 278, § 18; Mass. R. Crim. P. 12 (c) (4) (A), while defendants in the Superior Court have a statutory right to withdraw their pleas only if their sentences would exceed the Commonwealth's recommendations (i.e., they tender Commonwealth-capped pleas), Mass. R. Crim. P. 12 (c) (4) (A). See Charbonneau, 473 Mass. at 518-519 ("The statute, complemented by the rule, defines the two essential elements of a defendant-capped plea: [1] the defendant shall tender a guilty plea; and [2] on the tender of the plea, the judge shall inform the defendant of his or her unconditional right to withdraw the plea if the proposed disposition exceeds . . . that requested by the defendant"). See also Commonwealth v. Rodriguez, 461 Mass. 256, 258 n.4 (2012) ("The procedure set forth in

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G. L. c. 278, § 18, applies in the District Court, the Boston Municipal Court, the Juvenile Court, and a District Court sitting in a juvenile session, but not in the Superior Court").

b. Constitutional standards of review. The defendant argues that this procedural scheme, in which certain criminal defendants have a statutory right to defendant-capped pleas and others do not, is on its face violative of equal protection as guaranteed by both the Fourteenth Amendment of the Federal Constitution and cognate provisions of the Declaration of Rights of the Massachusetts Constitution. Our "review of an equal protection claim under the Massachusetts Constitution is generally the same as the review of a Federal equal protection claim, . . . although we have recognized that the Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution" (citation omitted). Commonwealth v. Freeman, 472 Mass. 503, 505 n.5 (2015).

We assess constitutional claims such as this one along "a continuum of constitutional vulnerability determined at every point by the competing values involved" (citations omitted). Chelsea Collaborative, Inc. v. Secretary of the Commonwealth, 480 Mass. 27, 36 n.22 (2018). For equal protection claims, "[w]here a statute either burdens the exercise of a fundamental right protected by our State Constitution, or discriminates on the basis of a suspect classification, the statute is subject to strict judicial scrutiny. . . . All other statutes . . . are subject to a rational basis level of judicial scrutiny" (citations omitted). Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 668-669 (2011), S.C., 461 Mass. 232 (2012). Under strict scrutiny, a State action "must be narrowly tailored to further a legitimate and compelling governmental interest and must be the least restrictive means available to vindicate that interest," id. at 669, while under rational basis a State action "will be upheld as long as it is rationally related to the furtherance of a legitimate [S]tate interest" (citations omitted). Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 393 (2018).

c. Strict scrutiny. The defendant urges us to apply strict scrutiny here. As defined supra, we apply strict scrutiny "[w]here a statute either burdens the exercise of a fundamental right . . . or discriminates on the basis of a suspect classification." Finch, 459 Mass. at 668-669. Because the procedural scheme of G. L. c. 278, § 18, and rule 12 (c) (4) (A) neither burdens the exercise of a

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fundamental right nor implicates a suspect class, [Note 7] we decline to apply strict scrutiny.

"A fundamental right is one that is deeply rooted in this Nation's history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed" (quotations and citations omitted). Gillespie v. Northampton, 460 Mass. 148, 153 (2011). There is no doubt that there is a fundamental right "to be free from physical restraint," Commonwealth v. Knapp, 441 Mass. 157, 164 (2004), and that this right is implicated here: on tendering a guilty plea, Superior Court defendants face a potentially significant amount of time of incarceration. However, strict scrutiny applies only where State action "'significantly interfere[s] with' the fundamental right at issue," Doe No. 1, 479 Mass. at 392, quoting Zablocki v. Redhail, 434 U.S. 374, 386 (1978), not simply where State action involves a fundamental right. There is no such interference here.

Our decision in Commonwealth v. Fernandes, 487 Mass. 770 (2021), is instructive. In that case, this court concluded that no "direct infringement [on fundamental rights] arises solely from the fact of being tried in the Superior Court rather than in a different court." Id. at 777. The defendant in Fernandes challenged a statute that required a subset of juveniles, aged fourteen

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to sixteen, be tried in the Superior Court rather than in the Juvenile Court. Id. at 776-777. As is the case for adult criminal defendants who are tried in the Superior Court rather than in the District Court, these juveniles were required to be tried in the Superior Court due to the seriousness of their alleged offenses. Id. at 776 (statute "provided that charges of murder in the first or second degree" against fourteen to sixteen year olds be brought in Superior Court). And as there are differences between the District Court and the Superior Court, see infra, so too are there differences between the Juvenile Court and the Superior Court. Indeed, "[t]he differences between being tried in the Superior Court and in the Juvenile Court are considerable" and are perhaps greater than those between being tried in the Superior Court and in the other Trial Court departments. Commonwealth v. Walczak, 463 Mass. 808, 827 (2012) (Lenk, J., concurring) (Juvenile Court "is not a punitive scheme strictly akin to the adult criminal justice system" [citation omitted]). Even so, we reasoned that this scheme did not interfere with defendants' fundamental rights because "[d]ue process protections . . . and the right to a fair trial apply in both" courts. Fernandes, supra at 777.

In addition, "[a] defendant has no right to insist that the prosecutor participate in plea bargaining," Commonwealth v. Smith, 384 Mass. 519, 522 (1981), nor does a defendant have a "constitutional right to have [a] plea accepted" (citation omitted), Commonwealth v. Ramos-Cabrera, 486 Mass. 364, 366 (2020). Thus, even if this procedural scheme were to affect defendants' or the Commonwealth's decision-making about pleas in any court, it would still not interfere with any fundamental right. [Note 8]

d. Rational basis. Accordingly, we apply a rational basis level

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of judicial scrutiny to the defendant's equal protection claims. [Note 9] "For equal protection challenges, the rational basis test requires that 'an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.'" Goodridge v. Department of Pub. Health, 440 Mass. 309, 330 (2003), quoting English v. New England Med. Ctr., 405 Mass. 423, 428 (1989). Because we conclude that this requirement is met, we hold that the procedural scheme under which Superior Court defendants are statutorily entitled to Commonwealth-capped pleas -- unlike those defendants in the District Court who are statutorily entitled to defendant-capped pleas -- is not in violation of equal protection principles.

The defendant seems to argue there can be no rational basis for the distinction between Superior Court defendants and other criminal defendants because G. L. c. 278, § 18, indicates an "expansive" Legislative intent to extend the statutory right to defendant-capped pleas to all criminal defendants. This argument misses the historical motivations that gave rise to the defendant-capped plea of G. L. c. 278, § 18. Indeed, this historical background provides not only a rebuttal to the defendant's argument about legislative intent but also a compelling reason in itself for the distinction between Superior Court defendants and District Court defendants.

Prior to 1994, there was a two-tier criminal trial de novo system in the District Court. Under this system, a criminal defendant in the District Court had "the [statutory] right to a jury waived bench trial which, if a verdict did not result in acquittal, could be appealed to a de novo jury trial with a different judge in a different session." Malone, Abolition of the District Court Trial

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De Novo System: One Year Later, 39 Boston B.J. 13 (Mar.-Apr. 1995). "In effect, this was a risk-free opportunity to put the Commonwealth to its proof of the crime charged." Charbonneau, 473 Mass. at 520. When the Legislature abolished the de novo system, it created the defendant-capped plea to offset that loss for District Court defendants. Id. Moreover, when the two-tier system was abolished, there was a serious "worry that the end of de novo would result in an avalanche of jury trials," as defendants would no longer be able to take their chances first with a bench trial -- which could result in acquittal -- while maintaining their right to a jury trial. Keough, Order in the Courts, CommonWealth Mag. (Jan. 1, 2000). Beyond preserving the balance between the Commonwealth and District Court defendants, defendant-capped pleas -- by providing risk-free opportunities for defendants to tender guilty pleas -- helped address this case-flow management concern. [Note 10] Defendant-capped pleas represented the Legislature's solution to problems that involved only District Court defendants and thus were intended only to be extended to District Court defendants.

Even without this historical background, an impartial lawmaker might reasonably decide to extend this procedural safeguard (i.e., defendant-capped pleas) specifically to defendants in the District Court. The defendant correctly points out that "Superior Court defendants typically receive greater procedural protections." For example, Superior Court defendants are charged via indictment, while District Court defendants are charged via complaint, G. L. c. 263, § 4, and District Court defendants are tried by a six-person jury, G. L. c. 218, § 26A, while defendants in the Superior Court are tried by a twelve-person jury, see G. L. c. 234A, § 68; Mass. R. Crim. P. 20, 378 Mass. 889 (1979). It is quite sensible to confer the right to defendant-capped pleas to defendants in those Trial Court departments that do not offer the same procedural protections as are provided in the Superior

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Court. The Legislature reasonably may seek to achieve a balance between the Commonwealth and defendants across the Trial Court departments, albeit by different means.

There are other reasons lawmakers affirmatively might choose not to extend the practice of defendant-capped pleas to the Superior Court. For one, lawmakers may choose to bolster prosecutorial discretion in the Superior Court due to the level of severity of the offenses typically prosecuted there. The maximum sentences are much higher in the Superior Court, see G. L. c. 218, § 26; District Court defendants cannot be sentenced to State prison, see G. L. c. 218, § 27; and those District Court defendants who are incarcerated are eligible for parole after only one-half of their term has elapsed, see 120 Code Mass. Regs. § 200.02(1) (2017). As the Superior Court judge noted in denying the defendant's motion to withdraw his plea:

"[G]iving some significance to prosecutorial recommendations during sentencing after acceptance of a guilty plea is a legitimate purpose. That policy may be most significant in the Superior Court, which handles the most serious cases . . . . In the other courts, . . . there is less room for differences in sentencing recommendations, lower potential consequences in incarceration lengths and, accordingly, less potential for seriously undermining prosecutorial authority and discretion."

That is, a lawmaker rationally may choose to create different dispositional processes, with varying degrees of deference for different parties' discretion, based on the severity of the underlying offense. Cf. G. L. c. 218, § 35A ("show cause" hearings); Eagle-Tribune Publ. Co. v. Clerk-Magistrate of the Lawrence Div. of the Dist. Court Dep't, 448 Mass. 647, 650 (2007) ("the implicit purpose of the § 35A hearings is to enable the clerk-magistrate to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system" [alterations and citation omitted]).

Moreover, as a sheer practical matter, a lawmaker might sensibly wish to afford a Superior Court prosecutor a greater degree of control over the plea process as compared to his or her counterparts in the District Court. [Note 11] Indeed, prosecutions in the Superior Court, as opposed to the District Court, generally are

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more complex. For example, Superior Court criminal trials are likely to involve more forensic evidence, more expert witnesses, and more complex evidentiary issues than prosecutions in other Trial Court departments. Preparation for a criminal trial in the Superior Court includes balancing complex scheduling issues with the effort to present a case of narrative richness in an orderly manner. Often, motions in limine or motions to sever are heard weeks or months before trial. Perhaps exacerbating the difference in complexity of the prosecutions, cases in the District Court typically are prosecuted horizontally, while cases in the Superior Court are prosecuted vertically. That is, a different prosecutor often handles the case on each respective date in the District Court, while a single prosecutor is responsible for the entire prosecution in the Superior Court. Allowing a defendant the statutory right to tender a plea at any time in the judicial process -- including on the trial date -- once the defendant sees the Commonwealth's case meticulously prepared, is a benefit available under rule 12. But allowing a defendant in the Superior Court the ability to enter a defendant-capped plea at any time, whether on a motion to suppress date, a Daubert-Lanigan [Note 12] hearing date, or on a trial date, has implications much different from those arising when such a plea is offered in the District Court. [Note 13]

Conclusion. In short, defendants are afforded different procedural

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protections in different Trial Court departments for a host of reasons rationally related to legitimate purposes within the purview of the Legislature. Because the procedural scheme of G. L. c. 278, § 18, and Mass. R. Crim. P. 12 survives rational basis scrutiny, we uphold the scheme and affirm the motion judge's denial of the defendant's motion to withdraw his guilty pleas. So ordered.