In re Expungement

• Decision Date: 31 January 2022
• Docket Number: SJC-13120
• Citation: 179 N.E.3d 1081
• Parties: In the MATTER OF EXPUNGEMENT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 N.E.3d 1081

In the MATTER OF EXPUNGEMENT.

SJC-13120

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 10, 2021

Decided January 31, 2022.

Hadler E. Charles, for Commissioner of Probation.

The petitioner, pro se.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

This case requires us to construe the relationship between the subsections in one part of the expungement statute, G. L. c. 276, § 100K. The crux of the parties’ dispute is whether a judge ordering expungement under this statute may skip the conditions enumerated in G. L. c. 276, § 100K (a ), and expunge a record solely because doing so is in "the best interests of justice," pursuant to G. L. c. 276, § 100K (b ).

We conclude that a judge ordering expungement under this statute must employ a two-part procedure. First, the judge must make findings based on clear and convincing evidence that the relevant criminal record was created because of one or more of the reasons listed in G. L. c. 276, § 100K (a ). Second -- and only after making such findings -- a judge may consider whether expungement would be "in the best interests of justice," see G. L. c. 276, § 100K (b ). Accordingly, the order of expungement at issue here must be vacated and set aside.

1. Background. In this section, we first set forth the details of the defendant's convictions and the events that transpired before he petitioned to have his criminal record expunged. We then describe the statutory scheme at some length, as knowledge of the intricacies of that scheme is essential to understanding the nature of the disagreement that arose after the defendant filed his petition. Finally, we discuss the postfiling proceedings and the Superior Court judge's order of expungement.

a. Convictions and sealing. The essential facts are undisputed. In 1986, the defendant pleaded guilty to one count of assault with intent to commit rape and one count of robbery. He was sentenced to a term of twenty years of incarceration, suspended, and a concurrent two-year term of probation. The probationary period was completed without incident, and in 1988, the case was closed. In 2003, the defendant successfully moved in the Superior Court to have his criminal record sealed.¹ The following year, the Sex Offender Registry Board notified the defendant of his obligation to register as a level one sex offender, pursuant to G. L. c. 6, § 178K (2) (a ). Pursuant to the sex offender registration scheme, sex offenders who are "required to register" must do so within five days of being sentenced, G. L. c. 6, § 178E, and those classified as level two or three offenders must reregister at least annually, see G. L. c. 6, § 178F.

In July of 2019, the defendant successfully moved in the Superior Court to be relieved of his obligation to register as a sex offender. In allowing the defendant's motion, the judge concluded that the defendant posed no risk of reoffending nor any danger to the community. In November of 2019, the defendant filed a petition for expungement under G. L. c. 276, § 100K.

b. The expungement scheme. In 2018, the Legislature enacted an omnibus package of criminal justice reforms entitled, "An Act relative to criminal justice reform" (act).² St. 2018, c. 69. One of these reforms involved changes to the expungement of criminal records. Specifically, the act created two distinct pathways for the expungement of two different kinds of criminal records. These pathways often are referred to as "time-based expungement" and "reason-based expungement."

i. Time-based expungement. Broadly speaking, time-based expungement, as set forth in G. L. c. 276, §§ 100F - 100J, is a pathway available to petitioners who were under the age of twenty-one at the time of the relevant offenses. Their offenses or alleged offenses must have been lower level, and at least three years (for a misdemeanor) or seven years (for a felony) must have elapsed since the time of the offenses and the successful completion of any sentences imposed. See G. L. c. 276, §§ 100I (a ) (1)-(3).

A petitioner is eligible for time-based expungement if he or she is able to clear three different hurdles. First, the petitioner must fall into one of three categories; the petitioner must have (1) "not more than [two] records as an adjudicated delinquent or adjudicated youthful offender," G. L. c. 276, § 100F (a ) ; or (2) "not more than [two] records of conviction," G. L. c. 276, § 100G (a ), or (3) "not more than [two] records that do not include an adjudication as a delinquent, an adjudication as a youthful offender or a conviction," G. L. c. 276, § 100H (a ).

A petitioner who meets this threshold requirement then must clear the hurdle imposed by G. L. c. 276, § 100I, which requires the Commissioner of Probation (commissioner) to certify that the record sought to be expunged is eligible for expungement, meaning that

"(1) any offense resulting in the record or records that are the subject of the petition is not a criminal offense included in [§] 100J;

"(2) all offenses that are the subject of the petition to expunge the record or records occurred before the petitioner's twenty-first birthday;

"(3) all offenses that are the subject of the petition to expunge the record or records, including any period of incarceration, custody or probation, occurred not less than [seven] years before the date on which the petition was filed if the record or records that are the subject of the petition include a felony, and not less than [three] years before the date on which the petition was filed if the record or records that are the subject of the petition include a misdemeanor or misdemeanors;

"(4) other than motor vehicle offenses in which the penalty does not exceed a fine of [fifty dollars] and the record or records that are the subject of the petition to expunge, the petitioner does not have any other criminal court appearances, juvenile court appearances or dispositions on file with the commissioner; provided, however, multiple offenses arising out of the same incident shall be considered a single offense for the purposes of this section;

"(5) other than motor vehicle offenses in which the penalty does not exceed a fine of [fifty dollars], the petitioner does not have any criminal court appearances, juvenile court appearances or dispositions on file in any other state, United States possession or in a court of federal jurisdiction; and

"(6) the petition includes a certification by the petitioner that, to the petitioner's knowledge, the petitioner is not currently the subject of an active criminal investigation by any criminal justice agency.

"Any violation of [ G. L. c. 209A, § 7,] or [ G. L. c. 258E, § 9,] shall be treated as a felony for purposes of this section."

Finally, pursuant to G. L. c. 276, § 100I (a ) (1), an otherwise eligible petitioner is ineligible for time-based expungement if the record sought to be expunged resulted from the disposition of an offense that falls into any of twenty categories of offenses enumerated in G. L. c. 276, § 100J. Those categories encompass any felony included in G. L. c. 265. See G. L. c. 276, § 100J (a ) (18).

If a petitioner satisfies all three requirements, the judge may order the criminal record expunged. The judge, however, "shall have the discretion to grant or deny the petition based on what is in the best interests of justice." See G. L. c. 276, §§ 100F (d ), 100G (d ), 100H (c ).

ii. Reason-based expungement. The second path to expungement, set forth in G. L. c. 276, § 100K, is known as reason-based expungement. The reason-based pathway provides:

"(a ) Notwithstanding the requirements of [§] 100I and [§] 100J, a court may order the expungement of a record created as a result of criminal court appearance, juvenile court appearance or dispositions if the court determines based on clear and convincing evidence that the record was created as a result of:

"(1) false identification of the petitioner or the unauthorized use or theft of the petitioner's identity;

"(2) an offense at the time of the creation of the record which at the time of expungement is no longer a crime, except in cases where the elements of the original criminal offense continue to be a crime under a different designation[;]

"(3) demonstrable errors by law enforcement;

"(4) demonstrable errors by civilian or expert witnesses;

"(5) demonstrable errors by court employees; or

"(6) demonstrable fraud perpetrated upon the court.

"(b ) The court shall have the discretion to order an expungement pursuant to this section based on what is in the best interests of justice.... Upon an order of expungement, the court shall enter written findings of fact.

"(c ) The court shall forward an order for expungement pursuant to this section forthwith to the clerk of the court where the record was created, to the commissioner and to the commissioner of criminal justice information services appointed pursuant to [ G. L. c. 6, § 167A ]."

c. Defendant's petition for expungement. In November of 2019, the defendant petitioned to have his criminal record expunged. On the physical copy of his petition, the defendant checked the box for "Errors by law enforcement," invoking one of the reason-based grounds for expungement. See G. L. c. 276, § 100K (a) (3).

The following month, a Superior Court judge held a hearing on the defendant's petition. Present at the hearing were the defendant and an assistant district attorney. Initially, the assistant district attorney opposed the petition on the ground that G. L. c. 276, § 100K, "has narrowly prescribed parameters and I'd say those parameters have not been met in this case." The judge responded that G. L. c. 276, § 100K (b ), appeared to include a "catchall" provision authorizing her to expunge the defendant's criminal record if doing so "would be in the best interest of justice." Ultimately, the assistant district attorney reversed course and agreed with the judge's interpretation; following the hearing, the judge...