Opinion
14-P-1647
11-19-2015
COMMONWEALTH v. ANDRE ROSADO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from the order denying his motion to expunge his criminal record, consisting of arrests and convictions pertaining to a specific Superior Court case. The underlying facts are not in dispute. The only issue is whether the judge had the authority to order expungement as the defendant requested. He did not. Although a judge may have authority to seal a defendant's record under G. L. c. 276, § 100C, a question which is not before us and one we do not decide, our case law makes clear that, in the circumstances presented here, a judge does not have the authority to order expungement of a criminal record. See Commonwealth v. Boe, 456 Mass. 337, 342-343 (2010), and cases collected.
"See Commonwealth v. Roe, 420 Mass. 1002 (1995) (where charges against defendant were dismissed for want of prosecution, court stated that defendant's motion to expunge was properly denied because existence of sealing statute, G. L. c. 276, § 100C, provided remedy to protect confidentiality of criminal records); Commonwealth v. Balboni, 419 Mass. 42, 44, 46-47 (1994) (although Department of Probation's motion to reconsider and vacate order allowing expungement of dismissed complaint deemed untimely, G. L. c. 276, § 100C, was controlling and provided for confidentiality of probation records by sealing, not expungement); Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 357-358 (1995) (where defendant sought to expunge record after criminal charge dismissed, judge erred in allowing expungement because judge was limited by statutory scheme described in G. L. c. 276, § 100C, to sealing defendant's record). Cf. Commonwealth v. Doe, 420 Mass. 142, 143, 152-153 (1995) (where charges against defendant resolved by prosecution's entry of nolle prosequi, judge properly denied defendant's petition to seal record where defendant failed factually to substantiate case for sealing); Commonwealth v. Vickey, 381 Mass. 762, 763-764, 766-767, 771-772 (1980) (where defendant pleaded guilty to crime, was granted full pardon by Governor, and sought to have record of conviction sealed, defendant's request did not come within provisions of G. L. c. 276, §§ 100A or 100C, and defendant could not rely on court's inherent or ancillary powers to bypass specific statutory language)."
Order denying motion for expungement of arrests and convictions affirmed.
By the Court (Katzmann, Vuono & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 19, 2015.
Commonwealth v. Boe, 456 Mass. at 342-343.