Opinion
21-P-540
04-15-2022
COMMONWEALTH v. D.M.T.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, D.M.T., petitioned the Boston Municipal Court under G. L. c. 276, § 100K, for expungement of drug charges from his criminal record. The Commonwealth initially opposed the petition, and after hearing arguments, a judge (motion judge) denied it. Now on appeal, both D.M.T. and the Commonwealth claim that the motion judge committed an abuse of discretion. Because the ruling does not adequately explain the motion judge's rationale for concluding that the "best interests of justice" require D.M.T.'s record to remain intact, we vacate the denial of the petition and remand for findings consistent with this memorandum and order.
We acknowledge the amicus brief filed by Lawyers for Civil Rights, Massachusetts Fair Housing Center, Boston Society of Vulcans of Massachusetts, Jewish Alliance for Law and Social Action, Massachusetts Employment Lawyers Association, Justice at Work, Massachusetts Association of Minority Law Enforcement Officers, and Rights Behind Bars. We also acknowledge the amicus brief filed by Greater Boston Legal Services, The CORI Initiative of the Center for Law & Social Responsibility at New England Law Boston, and the Human Rights at Home Clinic at the University of Massachusetts School of Law.
Background. On June 23, 2003, D.M.T. was arraigned in the Boston Municipal Court and charged with three drug-related offenses. He was represented by counsel and admitted to sufficient facts, and the matters were continued without a finding. D.M.T. successfully completed probation in 2006, and the charges were dismissed.
Over ten years later, in 2017, D.M.T. successfully moved to have the records of his charges sealed pursuant to G. L. c. 276, § 100C, for reasons including that their public availability adversely affected his employability.
In 2018, D.M.T. moved to temporarily unseal his record of the charges and vacate his admission to sufficient facts because the charges had triggered immigration consequences. A judge (not the motion judge) allowed the motions to unseal and to vacate, and the Commonwealth moved to dismiss the charges.
We note that the motion judge mistakenly found that the motion to vacate the plea was based on false identity. The record reflects, and the Commonwealth and defense counsel agree, that it was based on immigration consequences.
In 2020, D.M.T. filed the present petition for expungement, claiming for the first time that he was not involved in the crimes at all, and had been charged only because his younger brother, T.T., had fraudulently used his identity when apprehended by the police. The Commonwealth initially opposed the expungement, and the motion judge denied it. The motion judge later denied D.M.T.'s motion for reconsideration.
In his affidavit, D.M.T. noted that at the time of the crimes in 2003, his relationship with his brother, T.T., was strained. When stopped by the police, T.T. gave police D.M.T.'s identifying information as his own, and T.T.'s companion claimed to police that he was T.T.
The motion judge found by clear and convincing evidence that the criminal record was created as a result of either theft or unauthorized use of D.M.T.'s identity. Despite this finding, the judge found that "[t]he court does not believe that destroying all records of this offense is in the interest of justice." In denying the motion to reconsider, the motion judge elaborated that "[t]he court has no issue with clearing this offense from [D.M.T.'s] record, however, the court will not order the Boston Police Department, the Clerk's office, or the District Attorney to destroy all records of this offense."
Discussion. Under G. L. c. 276, § 100K, otherwise known as "reason-based" expungement, "a court may order the expungement of a record created as a result of [a] criminal court appearance ... 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." G. L. c. 276, § 100K (a ) (1). See Matter of Expungement, 489 Mass. 67, 71 (2022). If so, the judge has the discretion to order expungement based on "the best interests of justice." G. L. c. 276, § 100K (b ). Written findings of fact are required. Id.
The Supreme Judicial Court recently explained that a legislative goal of § 100K was to make the criminal justice system more equitable by "expanding access to expungement." Matter of Expungement, 489 Mass. at 78-79. To be eligible for an order of expungement under § 100K, the creation of the record must fall within one of the factors enumerated in G. L. c. 276, § 100K (a ). See Matter of Expungement, supra at 76. In the present case, the motion judge found that the record was created due to the unauthorized use of D.M.T.'s identity. Thus, the next step of the analysis was whether ordering expungement was in the best interests of justice under § 100K (b ). See id. at 68.
Here, the motion judge, who did not have the guidance of Matter of Expungement, did not provide a clear reason for denying the petition. From the motion judge's findings, we cannot determine if he denied expungement because he disagreed with the scope of the remedy provided by the Legislature -- which would amount to an abuse of discretion -- or whether he concluded that the expungement of a criminal record, albeit for a crime that was not committed by D.M.T., was not in the best interests of justice. While we do not express any opinion as to what the outcome ought to be, and we have been made aware of certain information that may have influenced the motion judge's decision, the record is inadequate for us to determine whether the judge abused his discretion.
In a postargument letter, counsel for D.M.T. commendably informed this panel that, contrary to D.M.T.'s affidavit in support of expungement averring that he had not been "arrested for, charged with, or convicted of a crime" since the 2003 offenses, roughly five months before signing the affidavit, D.M.T. in fact had been charged with a misdemeanor offense which was later dismissed. Counsel indicated that the motion judge was aware of this information at the expungement hearing.
However, we note that Commonwealth v. S.M.F., 40 Mass. App. Ct. 42 (1996), a case heavily relied on by D.M.T., may be instructive in the "best interests of justice" analysis on remand. In S.M.F., the request for expungement was fueled by the uncontroverted fact that S.M.F.'s identity had been stolen, and that she was not the person arrested. See id. at 42-43. Although § 100K was not yet on the books, this court noted in S.M.F. that
"[t]here is ... no utility in records that are false and misleading. As the records of the Department of Probation now stand, they give the impression that S.M.F. -- not a person using that name as an alias -- was arrested, arraigned, tried, and acquitted. None of that happened. No rational public policy favors the preservation of a fictitious record. Yet the capacity of a fictitious record to do mischief is considerable."
Id. at 46.
Nevertheless, we caution that the facts of this case are not exactly on all fours with S.M.F., as D.M.T. would like us to believe. The petitioner in S.M.F. was not involved at all in the criminal proceedings -- beginning with the arrest and ending with the trial. See id. at 45. Here, D.M.T., despite not having been involved in the crimes, appeared in court several times beginning in June 2003, had an attorney appointed to represent him, and in April 2005 admitted to sufficient facts under oath before a judge. On the other hand, the public policy rationales against preserving fictitious records remain as relevant now as in 1996 when S.M.F. was decided. The matter is remanded so that the motion judge can properly balance these considerations to assess whether expungement is in "the best interests of justice."
Conclusion. The order denying the petition for expungement is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded