Opinion
22-P-72, 22-P-281, 22-P-284
12-05-2022
COMMONWEALTH v. Jeffrey RIVARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Through multiple petitions, the petitioner sought to seal or expunge certain entries on his criminal record pursuant to G. L. c. 276, § 100C, and G. L. c. 276, § 100K. He now appeals from the denial of three such petitions. For the reasons that follow, we affirm.
Background. The petitions each address cases that were dismissed prior to conviction, involving the same alleged victim, the petitioner's wife. The petitioner was first arrested in 2012 based on allegations that he repeatedly hit his wife with a wiffle ball bat and pushed their daughter to the floor. The resulting assault and battery charges were dismissed upon the petitioner's completion of pretrial probation. The petitioner was then arrested in 2015 and again in 2017 on separate assault and battery charges after police responded to reports of physical disputes between the petitioner and his wife. These two cases were dismissed when the wife invoked her marital privilege.
In 2020, the petitioner filed a petition to seal the 2012 and 2015 cases, citing housing discrimination in Massachusetts and Vermont as the basis for requested relief. Specifically, he claimed that due to his criminal record, a Massachusetts housing authority had attempted to take away his family's Section 8 housing voucher and that he and his family had also "experienced housing discrimination while homeless." Following a hearing, at which the petitioner reiterated these and other housing issues, the judge denied the petition on three grounds: the insufficient passage of time since the charges were dismissed; the nature and the reasons for the dispositions of the cases; and that the more recent 2017 case, although not covered in the sealing petition, involved similar issues and the same parties.
The petitioner appears to have filed a second petition to seal these cases in the Boston Municipal Court on July 21, 2021, which was denied (without a hearing) on July 26, 2021. That judge noted the "petition [had been] denied twice in the past."
The petitioner testified that when he submitted a housing application in Vermont, he was asked if he had ever been arrested. He also testified that a certain Massachusetts management company "refused to rent to [his family] based on [the] dismissed conviction."
The petitioner then sought expungement of the 2012 and 2017 charges, filing separate petitions for each case. Each petition alleged error in what the petitioner characterized as inaccurate statements in the police reports. After hearings in each case, the judges denied his petitions.
The petitioner filed timely notices of appeal on all three petitions.
Specifically, the petitioner appeals the denial of his petition to expunge his 2017 case in 22-P-72, the denial of his petition to expunge his 2012 case in 22-P-284, and the denial of his petition to seal his 2012 and 2015 cases in 22-P-281.
Discussion. 1. Expungement. We start first by examining the petitioner's claims for expungement in his 2012 and 2017 cases, as expungement would provide him greater relief. See Matter of Expungement, 489 Mass. 67, 68 n.1 (2022) (noting that expungement "goes further" than sealing, in that "it entails the permanent erasure or destruction of a record so that the record is no longer accessible to, or maintained by, the court, any criminal justice agencies or any [government agency]" [citations and quotations omitted]). Due to these broad ramifications, a judge has discretion to expunge a criminal record only, as applicable here, "if the court determines based on clear and convincing evidence that the record was created as a result of: ... demonstrable errors by law enforcement; ... civilian or expert witnesses; ... [or] by court employees ..." G. L. c. 276, § 100K (a ). Should this showing of "reason-based" expungement be made, the judge may then consider whether expungement would be "in the best interests of justice." § 100K (b ). See Matter of Expungement, 489 Mass. at 68. We review the judge's decision for abuse of discretion. See Commonwealth v. K.W., 490 Mass. 619, 624 (2022).
Regarding the 2012 case, the basis of the petitioner's claim is that the police report mischaracterizes what he and his wife told the responding officers. However, the police were not required to credit the petitioner's version of events, and the altercation provided probable cause for his arrest. See Commonwealth v. Geordi G., 94 Mass. App. Ct. 82, 83-86 (2018) (probable cause for assault based on police report in which witnesses described juvenile "pushing" and "hip-bumping" victims, despite juvenile's alternative version of incident). The fact that the Commonwealth eventually dismissed the case after the defendant completed pretrial probation hardly establishes that the prosecution was based on a false narrative, and the petitioner has not pointed to anything else in the record suggesting this either. See K.W., 490 Mass. at 628 (noting that the "Legislature conceived of expungement as likely appropriate in those rare cases in which the record exists because of ‘fraud,’ ‘false identification,’ or ‘demonstrable error,’ ... [and thus] is a pathway for which few will meet the threshold qualifications").
As to the 2017 case, the primary thrust of the petitioner's claim likewise appears to be that the police report mischaracterized the incident leading to his arrest, which he claims amounted to "selective enforcement" by the police. He specifically alleges that the police wrongly credited his wife's timeline of the events over his own. Here, too, the police were not required to believe his version. See Geordi G., 94 Mass. App. Ct. at 83-86. As the petitioner has not articulated any "demonstrable error" by the witnesses, officers, or court, the judge did not err in denying his petition. See Matter of Expungement, 489 Mass. at 68.
The petitioner has submitted directly to this court a transcript of a September 14, 2022 Vermont court hearing on a motion he filed to modify a restraining order against him in Vermont. That transcript was not before the Massachusetts judge and therefore is not part of the record before us. We note, however, that consideration of the transcript would hurt the petitioner at least as much as help him. To be sure, the transcript does include a general statement by the petitioner's wife of sixteen years that "[t]he exact details in that [2017 police] report, I'm -- I do not believe that they were reported accurately." However, she did not explain how the "exact details" were inaccurate, and the transcript confirms that the petitioner committed multiple assaults against her (including at least one assault in Vermont that resulted in criminal charges there), albeit with the wife seeking to minimize these assaults. For example, she refers to the 2015 assault as the petitioner's having "very gently shoved [her] head into a bookcase."
2. Sealing. In the 2012 and 2015 cases, the petitioner argues that due to the housing discrimination he and his family has faced, sealing would best serve the interests of justice.
Where a dismissal has entered in a criminal case, a judge may seal the record upon determining that doing so would best serve substantial justice. See G. L. c. 276, § 100C. The sealing petition and accompanying documents should "set[ ] forth facts that demonstrate good cause for overriding the presumption of public access to court records." Commonwealth v. Pon, 469 Mass. 296, 322 (2014). In making this determination, a judge should evaluate, at minimum, the following six factors:
"the particular disadvantages identified by the [petitioner] arising from the availability of the criminal record; evidence of rehabilitation suggesting that the [petitioner] could overcome these disadvantages if the record were sealed; any other evidence that sealing would alleviate the identified disadvantages; relevant circumstances of the [petitioner] 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."
Id. at 316. A hearing is required where the petitioner makes a prima facie showing of good cause. Id. at 322 & n.38, 39. We review for abuse of discretion or error of law. Commonwealth v. Doe, 90 Mass. App. Ct. 793, 795 (2016).
In his written findings, the judge concluded that none of the six Pon factors was satisfied and reiterated that the 2017 case weighed against sealing. With respect to the petitioner's claim of housing discrimination, we note that now that the charges against him have been dismissed, most landlords accessing his criminal record would not see these entries on his criminal record. See 803 Code Mass. Regs. § 2.05(4)(a)(1) (2017) ("Standard Access" to criminal offender record information available to "landlords, property management companies, real estate agents, [and] public housing authorities" includes only pending criminal charges and certain convictions).
Even if we were to assume that the petitioner alleged "with sufficient particularity and credibility" the housing challenges he has faced due to these cases, we would nevertheless conclude that in light of the application of the other factors, the judge did not err in finding that the petitioner failed to make out the prima facie showing necessary to require further inquiry. Pon, 469 Mass. at 316. The judge examined the reasons for the dispositions of the criminal charges -- specifically, the petitioner's completion of pretrial probation and the wife's invocation of the marital privilege -- and concluded that they weighed against sealing, as did the recency of the two cases at issue and the similar 2017 case. He also appears to have accepted the Commonwealth's argument that the nature of the domestic violence charges and the petitioner's mental health issues (which directly related to the offenses) weighed against sealing. We conclude that the judge did not abuse his discretion in ruling that the petitioner failed to establish a prima facie case of good cause necessary to overcome the common-law presumption of public access. See Pon, supra, at 322.
We acknowledge that "[g]iven the evidence of the 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." Pon, 469 Mass. at 315-316.
We recognize that the pendency of the similar 2017 case did not, by itself, preclude sealing. See Doe, 90 Mass. App. Ct. at 798 ("Nothing in Pon suggests that the mere existence of a pending similar case is a justification for denying a petition to seal").
Orders denying petitions for expungements and sealings of criminal record portions affirmed.