Opinion
19-P-1662
01-06-2021
COMMONWEALTH v. JOHN DOE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from the denial of his motion and petition to seal record (motion), which consists of criminal charges that were dismissed without prejudice for failure to prosecute. We affirm.
In Commonwealth v. Pon, 469 Mass. 296, 321 (2014), the Supreme Judicial Court "announce[d] . . . a lower standard for sealing" a criminal record under G. L. c. 276, § 100C. A defendant's petition and accompanying documents should "set[] forth facts that demonstrate good cause for overriding the presumption of public access to court records." Id. at 322. For efficiency's sake, "a judge may determine on the pleadings whether a prima facie showing has been made," and, if so, "the petition should proceed to a hearing on the merits." Id. However, if a prima facie case is not made in the petition, "a preliminary hearing may be desirable." Id. at 322 n.39. The court also held that, "[g]iven the evidence of long-term collateral consequences of criminal records, judges may take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities." Id. at 315-316.
In making the determination whether to seal, a judge should evaluate, at minimum, the following six factors:
"the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal or nolle prosequi; and the nature of and reasons for the particular disposition."Pon, 469 Mass. at 316. If a judge concludes that, on balance, sealing would best serve substantial justice, the judge may grant the petition and seal the record. Id. at 314.
Here, the motion judge held a nonevidentiary hearing that she described as a "Stage 1" hearing, which we take to mean a hearing on whether the motion made out a prima facie case to seal the only criminal charges ever brought against Doe and which were dismissed for failure to prosecute. The judge took the matter under advisement, and on October 17, 2019, she denied the motion, finding "that no prima facie case in favor of sealing has been shown." We review the motion judge's decision for abuse of discretion or error of law. Commonwealth v. Doe, 90 Mass. App. Ct. 793, 795 (2016).
Passing over the significance of the fact that the affidavit was not signed until the judge raised the issue at the hearing, it is troubling that when Doe did sign the affidavit, the date was not corrected. Signing an affidavit under the penalties of perjury is not an empty formality.
We cannot reasonably conclude on this record that the judge abused her discretion. Although Doe "need not establish a risk of specific harm," he must allege "with sufficient particularity and credibility some disadvantage . . . that exists at the time of the petition or is likely to exist in the foreseeable future." Pon, 469 Mass. at 316. Doe's showing here fell short of this measure.
Doe's affidavit stated that he "works full time in construction" for a masonry company and that Doe "has been not allowed to work on two specific projects in the past month alone," at a high school and an elementary school. Doe inquired of his employer why he could not work on one of the school projects and was told it was because of the dismissed case. Doe then averred that "[t]his inability to maintain steady employment is putting [him] at risk of losing his livelihood." In a subsequent paragraph, the motion alleges that Doe "is at danger of losing employment because of this case."
Doe does not allege any loss of pay or underemployment other than being unable to work these two specific projects. Defense counsel represented at the motion hearing that "[Doe] has not been able to work," but this allegation is contradicted by Doe's affidavit stating he was employed full time. Similarly, the motion and counsel's representation are inconsistent in claiming that Doe has been employed by the same company for seventeen years, which would include employment while the criminal charges were pending, but after dismissal he now "is at danger of losing employment because of this case." Nor did counsel or Doe explain whether Doe, whom counsel represented to be a licensed mason, made any efforts to secure other work.
Nothing in this decision precludes Doe from filing another motion with a more robust factual record.
Order entered October 17, 2019, denying motion to seal affirmed.
By the Court (Milkey, Blake & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 6, 2021.