When a Massachusetts prosecutor takes an interlocutory appeal in a criminal case, Mass. R. Crim. P. 15(d) requires the Commonwealth to pay the defendant's appellate attorney's fees. The rule is mandatory. It applies whether the defendant wins the appeal or loses it. Yet most defense attorneys never file for the fees, and most criminal defendants never learn the entitlement exists.
This post explains what Rule 15(d) does, the four fact patterns in which it applies, why the rule survived a constitutional challenge, and how a fee application actually works in practice.
What is a Rule 15 interlocutory appeal?
Most appeals in Massachusetts criminal cases come after a conviction. A jury or judge finds the defendant guilty, the trial court enters judgment, and the defendant files a notice of appeal. That is the ordinary path.
Rule 15 is different. It gives the Commonwealth the right to appeal certain rulings before trial, in the middle of a live prosecution. Three categories:
- Motions to dismiss and motions for appropriate relief. If the trial judge dismisses an indictment or complaint, or grants a motion for appropriate relief under Rule 13(c), the Commonwealth may appeal as of right to the Appeals Court. Mass. R. Crim. P. 15(a)(1).
- Motions to suppress evidence. If the trial judge suppresses evidence, either side may apply to a single justice of the Supreme Judicial Court for leave to appeal. Mass. R. Crim. P. 15(a)(2). The single justice decides whether the interlocutory appeal will be allowed.
- Delinquency discharge under G.L. c. 119, § 72A. If the trial judge discharges the defendant, the Commonwealth may appeal to the Appeals Court. Mass. R. Crim. P. 15(a)(3).
All three categories share the same posture: the trial court ruled for the defendant, and the Commonwealth is asking the appellate courts to reverse and let the prosecution continue. The defendant is on defense. There is no trial verdict yet, and none will happen until the interlocutory appeal is resolved. Rule 15(e) stays the trial in the meantime.
What does Rule 15(d) do?
Rule 15(d) is the fee-shifting provision that accompanies the Commonwealth's right of appeal. It reads:
If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney's fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application.
Three words carry the weight. The rule says the appellate court shall determine and approve. Not may. Not consider. Not in appropriate cases. Shall.
The Supreme Judicial Court has held this word to mean what it says. In Commonwealth v. Lopez, 430 Mass. 244, 246 (1999), the Court described the rule as mandatory and the district attorney's discretion-to-deny arguments as failing against "the black letter of the rule which states what it means and means what it states." The Court repeated the point in Commonwealth v. Ennis, 441 Mass. 718, 720 (2004): "the award of attorney's fees to defendants is mandatory."
Four scenarios where the Commonwealth pays
The rule fires in four distinct fact patterns. All four are mandatory. The differences are procedural, not substantive.
1. The Commonwealth's application for leave to appeal is denied. This is the suppression pathway under Rule 15(a)(2). The trial judge suppresses evidence, the Commonwealth applies to a single justice of the SJC for leave to appeal, and the single justice denies the application. The defendant is entitled to fees for the work opposing the application. The single justice, not the full court, sets the amount. Ennis, 441 Mass. at 720 n.2.
2. The Commonwealth is granted leave and then voluntarily dismisses its own appeal. This scenario looks like a wash. It is not. In Commonwealth v. Lopez, the Appeals Court had ordered further findings on remand, and after those findings the Commonwealth concluded that its appeal was untenable and moved to dismiss "without costs." The Appeals Court dismissed the appeal "with prejudice and without costs to any party" and denied the defendant's fee motion. The SJC vacated the denial and remanded for a payment order. The Commonwealth's own decision to walk away does not extinguish the fee obligation.
3. The appeal is decided in the defendant's favor. This is the uncontroversial case. The defendant wins on the merits, the appellate court affirms the ruling below (or reverses in the defendant's favor), and the defendant's counsel is entitled to fees under Rule 15(d).
4. The appeal is decided in the Commonwealth's favor. This is the scenario that surprises most practitioners.
The Ennis rule: the defendant loses and still gets paid
Demetrius Ennis had prevailed on a motion to suppress evidence in the Superior Court. The Commonwealth applied for leave to appeal, was granted leave by the single justice, and won at the SJC. See Commonwealth v. Ennis, 439 Mass. 64 (2003) (reversing the suppression order). The defendant lost the appeal on the merits. The suppression ruling that had helped him was gone.
About seven months after the rescript issued against him, Ennis filed a Rule 15(d) motion for appellate attorney's fees. The Commonwealth opposed on multiple grounds: the motion was untimely, the court no longer had jurisdiction, the hourly rate was unreasonable, the hours claimed were excessive, and the request was oversized compared to other Rule 15(d) awards in an informal survey the Commonwealth submitted.
The SJC awarded Ennis $4,000. His counsel had asked for $12,921. The reduction reflected an inadequate affidavit, not any doctrinal exception. The Court held that counsel "failed to provide any basis as to why his $200 rate is reasonable for the services he provided in this case" and had not documented usual billing rate or peer comparators. 441 Mass. at 722. On the entitlement question, the Court was categorical: "the award of attorney's fees to defendants is mandatory and, moreover, the rule entitles a defendant to fees and costs not only when the Commonwealth is granted leave to file an interlocutory appeal, but also when the Commonwealth is denied such leave." 441 Mass. at 720. Outcome on the merits was simply not part of the analysis.
The Ennis fact pattern is the proof point. If the Commonwealth's win on the merits does not defeat a Rule 15(d) award, no lesser outcome will either. The rule is truly outcome-independent.
Why does this rule exist?
The Commonwealth once challenged the rule as unconstitutional. In Commonwealth v. Gonsalves, 432 Mass. 613 (2000), a district attorney argued that Rule 15(d) violated the separation of powers under Article 30 of the Massachusetts Declaration of Rights, and equal access to the courts under Article 11, by penalizing prosecutors financially for pursuing interlocutory appeals. The SJC rejected both claims.
The Court explained the rule's purpose plainly: "Rule 15 (d) provides a needed measure of protection to the rights of defendants by seeking to equalize the resources of the defendant with those of the Commonwealth. A defendant who is able to retain private counsel may not have the funds for an interlocutory appeal from a suppression motion on which he has prevailed. The lawyer should not be placed in the untenable position of either volunteering his services on the appeal or abandoning the defendant." 432 Mass. at 617.
The Gonsalves opinion also disposed of the argument that a fee obligation would chill legitimate prosecutorial appeals. The Court noted that budget constraints already force district attorneys to prioritize which cases warrant appeal, and that Rule 15(d) simply adds one line item to that same discretion. 432 Mass. at 621.
Who actually pays
The formal split is fifty-fifty. Half comes from the Administrative Office of the Trial Court line item; half comes from the district attorney's office that took the appeal. The statutory apparatus for the AOTC half sits in the annual General Appropriations Act.
The practical reality is different. The Trial Court routinely refuses to pay its share, treating the AOTC line item as insufficient and inviting the defendant to litigate. The Supreme Judicial Court has already answered that maneuver. In Commonwealth v. Murphy, 423 Mass. 1010, 1011 (1996), the Court held that where "AOTC funds are exhausted or if the Legislature has not appropriated funds to AOTC for this purpose, then prosecutors must bear these costs." The district attorney is the residual payor of the whole award.
If the DA's office resists the payment order itself, the enforcement fight moves to the Superior Court. The Gonsalves line (432 Mass. 613; 437 Mass. 1022; 441 Mass. 1007) is the enforcement playbook. Time spent on that fight is compensable too. Gonsalves, 437 Mass. at 1023 ("attorney's fees and costs incurred in connection with defending the original fee and cost award against the Commonwealth's motion for reconsideration are compensable").
How to actually get paid: the 30-day rule and the affidavit trap
Two procedural traps are easy to fall into.
The 30-day filing rule. A Rule 15(d) motion is due within thirty days of one of three events: the rescript from the appellate court that decided the appeal, the denial of the Commonwealth's application for leave, or the dismissal of the appeal. Ennis, 441 Mass. at 720. An extension is possible on good cause. Ennis itself accepted a seven-month late filing because the Commonwealth had suffered no prejudice, but the Court announced the 30-day rule prospectively and expected future defendants to follow it.
The affidavit trap. A bare rate-times-hours affidavit will not carry a Rule 15(d) motion at market value. Ennis slashed a $12,921 request to $4,000 precisely because the moving affidavit gave "no basis as to why his $200 rate is reasonable for the services he provided in this case" and did not describe the attorney's usual billing rate, the rates of peer attorneys with comparable criminal appellate experience, or a task-itemized time breakdown. 441 Mass. at 722. The model affidavit is the one the Court approved in Commonwealth v. Phinney, 448 Mass. 621, 627 (2007): usual billing rate documented, credentials laid out, comparable-rate representations from peers, and hours itemized by task.
The reasonableness inquiry runs through the eight factors of Mass. R. Prof. C. 1.5(a). Method: lodestar (hours times reasonable rate), with substantive discussion of the factors. Where the awarding court makes a "substantial adjustment" to the requested amount, it must state its reasons on the record. Gonsalves, 437 Mass. at 1023.
The rate is a market rate, not the Committee for Public Counsel Services bar-advocate rate. Phinney squarely rejected the CPCS-rate cap: "The determination of what constitutes a reasonable fee in this case must therefore be measured according to what would be reasonable for private counsel to charge in the circumstances." 448 Mass. at 626.
What this means for defense attorneys
Three practical takeaways.
Docket the fee motion the day the rescript issues. The 30-day clock runs from that date. If the Commonwealth voluntarily dismisses instead, the clock runs from dismissal. If the single justice denied the Commonwealth's application, the clock runs from that denial. Calendar every scenario at the same time so no clock gets missed.
Build the affidavit file during the appeal, not after. Peer rate representations, task-itemized time records, credentials, and comparable-award data are far easier to assemble contemporaneously than reconstruct months later. The Ennis slash was self-inflicted, and it is entirely avoidable.
Draft the proposed order to preempt the Trial Court stonewall. Rather than order the standard 50/50 split and then chase the Trial Court's half, propose an order that puts the whole payment on the district attorney under Murphy, or that shifts the Trial Court's half to the district attorney if unpaid within a stated period. Cite Gonsalves IV for the enforcement mechanics. This does not eliminate every fight, but it eliminates the easiest one.
What this means for defendants
If the prosecution has taken an interlocutory appeal in your case (from a dismissal, a suppression order, or a delinquency discharge), and you retained private counsel to defend against that appeal, the Commonwealth is likely obligated to reimburse your attorney's fees for that appellate work when the appeal ends. That is true whether the appellate court rules for you or against you.
Two caveats worth knowing.
First, the entitlement runs to fees for defending against the Commonwealth's appeal. It does not cover trial-court work, ongoing motion practice unrelated to the appeal, or later work in a different appellate posture (for example, a defendant's own direct appeal after a conviction). The reimbursement is bounded by "costs of appeal" in the rule text.
Second, the fee is a right of the defendant that runs to counsel. Depending on the engagement agreement with counsel, the fee award may be assigned directly to counsel and credited against the defendant's balance. This is a matter to work out in writing with the attorney before the fee motion is filed.
If the Commonwealth has taken an interlocutory appeal in your Massachusetts criminal case, or you are considering hiring private appellate counsel to defend against one, the fee-shifting provision under Rule 15(d) is one of the practical considerations worth discussing before the retention. Contact my office for a confidential consultation.