Opinion
16-P-8
04-10-2017
COMMONWEALTH v. M.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the Commissioner of Probation from an order expunging from the defendant's court activity record information (CARI) a criminal charge that was amended to a civil infraction. The Commissioner argues that the judge erred in expunging the record rather than sealing it pursuant to G. L. c. 276, § 100C, as amended by St. 2010, c. 256, §§ 131 & 132 ( § 100C ). We agree.
Despite the fact that the Appeals Court Clerk's office made numerous attempts to reach the defendant (see the docket sheet in 2016-P-8), the defendant failed to appear at oral argument in this case.
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Background. On September 18, 2013, a criminal complaint issued from Newton District Court charging the defendant with possession with intent to distribute a class D drug (marijuana). On January 28, 2014, the charge was amended to possession of less than one ounce of marijuana. The criminal complaint was dismissed at the Commonwealth's request, and the charge was reduced to a civil infraction. The judge ordered that the charge be "deleted from the defendant's B[oard] of P[robation] record." The Commissioner moved for reconsideration of the order expunging the record, which motion was denied after a hearing.
In her written decision, the judge cited to the second paragraph of G. L. c. 94C, § 32L, inserted by St. 2008, c. 387, § 2 ( § 32L ), which states that "[i]nformation concerning the offense of possession of one ounce or less of marihuana shall not be deemed ‘criminal offender record information,’ ... and shall not be recorded in the Criminal Offender Record Information system." Quoting from Commonwealth v. Pon, 469 Mass. 296, 304 (2014), the judge held that inclusion of information that the defendant was charged with possession of a class D controlled substance on the defendant's CARI, and that the charge later was dismissed, "constitutes a ‘penalty, sanction or [potential future] disqualification’ in violation of G. L. c. 94C, § 32L." She considered § 100C inapplicable to the case because the charge was converted to a civil infraction.
Discussion. "[T]he Legislature has prescribed that sealing a record is the appropriate remedy when a criminal case is terminated by" a judgment of dismissal. Commonwealth v. Alves, 86 Mass. App. Ct. 210, 212 (2014). See § 100C, second par. In addition, "[a]ny recorded offense which is no longer a crime shall be eligible for sealing" under G. L. c. 276, § 100A, inserted by St. 1973, c. 533, § 3 ( § 100A ). A judgment of dismissal was "entered by the court" in this case because the offense with which the defendant was charged "is no longer a crime." §§ 100A and 100C. "[P]roceedings were begun by a deliberate act of prosecution against the [defendant]," Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996), who was in possession of marijuana. Compare Commonwealth v. Moe, 463 Mass. 370, 376 (2012) (defendant "should not have been charged with assault by means of a dangerous weapon because no such assault ever occurred"); Commonwealth v. Alves, supra at 211 (defendant was "factually innocent"). "[T]he criminal records reflect accurately the pertinent underlying facts, namely, that [the defendant] was charged with this crime, and that the case was later disposed of by entry of [judgment of dismissal]." Commonwealth v. Moe, supra.
We are mindful that under § 32L, records of civil infractions for possession of less than one ounce of marijuana are not to be recorded in the criminal offender record information (CORI) system. The Commissioner explains that there is a distinction between the CARI system maintained by the probation department and the CORI system maintained by the Department of Criminal Justice Information Services, see Commonwealth v. Boe, 456 Mass. 337, 341 n.8 (2010), and that safeguards exist to ensure that CARI records of civil infractions are not transmitted to the CORI system. See G. L. c. 6, § 167, inserted by St. 1972, c. 805, § 1 (CORI "shall not include information concerning any offenses which are not punishable by incarceration"). Because expungement is not required in order to comply with § 32L, §§ 100A and 100C are "directly on point, and [they] provide the sole remedy." Commonwealth v. Moe, supra. "Accordingly, and despite the unfortunate consequences," ibid., "exercise of the judicial power of expungement [wa]s no longer within the authority of the judge." Commonwealth v. S.M.F., supra. See Commonwealth v. Moe, supra at 373.
The order expunging the record is reversed. The case is remanded to the District Court for entry of an order to seal the defendant's CARI information in accordance with G. L. c. 276, § 100C .