Commonwealth v. Kenny, 051019 MACA, 17-P-1536

Docket Nº:17-P-1536
Judge Panel:Rubin, Sacks & Shin, JJ.
Case Date:May 10, 2019
Court:Appeals Court of Massachusetts




No. 17-P-1536

Appeals Court of Massachusetts

May 10, 2019

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).


The defendant, formerly a teacher, was charged on June 24, 2011, with nine counts of statutory rape, G. L. c. 265, § 23, and three counts of procuring alcohol for a minor, G. L. c. 138, § 34. On March 26, 2014, approximately ten days before trial, the parties agreed that the Commonwealth would nol pros all twelve charges in exchange for the defendant's entering an Alford plea to two counts of unnatural and lascivious acts with a child under sixteen, G. L. c. 272, § 35A, one of his students. See North Carolina v. Alford, 400 U.S. 25 (1970). The matter was continued without a finding for three years. He was sentenced to a three-year term of probation with conditions that included that he complete any evaluations, programs, and therapies recommended by the probation department other than sex offender counselling; that he have no unsupervised contact with any child under the age of sixteen other than his biological children; that he not be employed or participate in any volunteer activity where he would have direct, substantial, unsupervised contact with any child under the age of sixteen; and that he not be employed as any kind of teacher.

Seven months after his Alford plea, the defendant filed a petition under G. L. c. 276, § 100C (first petition), to seal the charges that had been nol prossed, which was opposed by the Commonwealth and denied by a judge. After he successfully completed probation, he filed the instant petition to seal his entire record, which the Commonwealth again opposed. A different judge held a nonevidentiary hearing and denied that petition, holding in full, "After hearing, the...

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