Opinion
13-P-1997
11-19-2014
CANDACE LEE STRITOF v. KEVIN JOHN BARRY (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kevin Barry is appealing from an order denying his motion to expunge a G. L. c. 209A order from the domestic violence registry (trial docket no. 9713R0302) and, in what appears to be a separate proceeding, from an order denying his motion to expunge his criminal record. We affirm.
Discussion. A c. 209A abuse prevention order was entered ex parte against Barry by a District Court judge in 1997. After a hearing the order was extended, and then extended again for one year. The order expired by its own terms on March 6, 1998. There is no indication that Barry ever appealed.
We first address Barry's appeal from a July 5, 2013, District Court order denying his motion to expunge the G. L. c. 209A order. He relies on our decision in Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006) (Adams), to argue that the District Court judge improperly denied his motion to expunge the G. L. c. 209A order from the domestic violence registry. He contends that this inclusion in the registry was the result of fraud.
Adams allows the court to expunge a 209A domestic violence order in "the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court." Id. at 737. However, the defendant must present this argument to the court at either the c. 209A hearing or the subsequent hearing to extend the c. 209A order beyond one year. Ibid. The time restriction in Adams is also set forth at Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974), which gives a party up to one year after an order is entered to make a claim of fraud on the court. "If the judge does not make a finding of fraud on the court, the defendant will have no basis for a subsequent motion to expunge the record of the order from the system." Adams, supra. Here, Barry's fraud claim is barred by the statute of limitations. In any event, we note that he has not provided "clear and convincing" evidence to meet his burden and prove fraud on the court.
At the hearing the judge noted, "I do believe that . . . 16 years later, if you did not take an appeal at the time and . . . the restraining order expired on its own . . . terms there's not any legal thing that I can do on the matter."
This standard effectively "limit[s] the number of instances when expungement may even be considered as an appropriate remedy." Adams, supra at 737. After a determination that the order is fraudulent, the court will conduct a balancing test in deciding whether to proceed and expunge the record. Adams, supra at 735. The court "must ensure that the government's interest in maintaining the record does not outweigh the harms suffered by the maintenance of the record." Ibid.
We also address the motion to expunge Barry's criminal record pursuant to G. L. c. 6, § 171. The criminal record is currently sealed, but Barry claims that merely sealing his criminal record is inadequate. He asserts that in the event that he has a "run-in" with law enforcement officials, and they make false assumptions about his innocence based on his criminal history -- comprised of several case dismissals and acquittals -- that he will be deprived of his due process rights. This is not a viable argument. When sealing is available under G. L. c. 276, § 100C, it is generally the only remedy available, and the sealed records are not rendered inaccessible to law enforcement authorities. Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996). The record before us on appeal does not warrant a different result. See generally Commonwealth v. Boe, 456 Mass. 337, 342-343 (2010); Commonwealth v. Moe, 463 Mass. 370, 375-376 (2012). Barry's attempt to argue that under Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640 (1978), a juvenile case, the court has the authority to expunge his criminal record is similarly unavailing.
General Laws c. 276, § 100C, requires the sealing of court and probation records when a "defendant . . . has been found not guilty, . . . a grand jury has returned a 'no bill,' or . . . a judge has made a finding of no probable cause." Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996).
In conclusion, to the extent that either of Barry's motions was an attempt to invoke Mass.R.Civ.P 60(b)(6) (as it is not entirely clear upon review of the record), both of these motions would be time-barred. See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 776 n.12 (2005) ("Rule 60 . . . does not provide for general reconsideration of an order or judgment, and does not provide an avenue for obtaining relief from errors correctable on appeal").
Order denying motion to expunge G. L. c. 209A order affirmed.
order
Order denying motion to expunge criminal record affirmed.
By the Court (Green, Graham & Katzmann, JJ.),
Panel members appear in order of seniority.
Clerk Entered: November 19, 2014.