Opinion
14-P-16
10-10-2014
COMMONWEALTH v. MARK D. BROUILLARD.
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
On November 23, 1999, the defendant was arraigned on charges of breaking and entering in the nighttime, larceny over $250, and malicious destruction of property over $250. On March 21, 2000, the date scheduled for jury trial, the Commonwealth dismissed the charges. The docket sheet indicates that the charges were dismissed for lack of evidence. While incarcerated on separate charges, the defendant, on July 22, 2013, moved to seal the records of the 1999 charges pursuant to G. L. c. 276, § 100C. On November 18, 2013, a judge of the District Court denied the motion, finding that there was no "compelling interest [in sealing the records], given the defendant's record of convictions and state prison incarceration." The motion was denied without prejudice, "subject to renewal if the defendant successfully seals his entire record in the future." On appeal, the defendant argues that the motion judge was required to seal his record under G. L. c. 276, § 100C, first par., contending that his case was dismissed for lack of probable cause. We affirm the denial of the defendant's motion.
We review the denial of the motion for an abuse of discretion. Commonwealth v. Pon, 469 Mass. 296, 297 (2014). "Under G. L. c. 276, § 100C, second par., inserted by St. 1973, c. 322, § 1, a former criminal defendant whose case resulted in the entry of a nolle prosequi or a dismissal may obtain discretionary sealing of his or her criminal record where a judge determines that 'substantial justice would best be served' by sealing." Ibid.
The defendant argues that G. L. c. 276, § 100C, first par., which requires mandatory sealing of a criminal record if the court found lack of probable cause, applies to this case. However, as noted above, the docket sheet indicates that the case was dismissed on the date the case was scheduled for a jury trial for "lack of evidence." As such, the discretionary standard of G. L. c. 276, § 100C, second par., applies.
To succeed on a motion to seal under the "substantial justice" standard, a defendant must show good cause to seal his records. Id. at 312. Here, the defendant did not point to any facts that could justify sealing his record for good cause. "[T]he defendant . . . must allege with sufficient particularity and credibility some disadvantage stemming from CORI availability that exists at the time of the petition or is likely to exist in the foreseeable future." Id. at 316.
The defendant did not provide any information about the harm he would suffer if his records were not sealed. Instead, he merely made a conclusory statement that sealing the records would help him gain employment and housing upon his release from State prison on other charges. We therefore conclude that the judge did not abuse her discretion in denying the defendant's motion to seal his record.
Order denying motion to seal record affirmed.
By the Court (Kantrowitz, Grainger & Hanlon, JJ.),
Clerk Entered: October 10, 2014.