Commonwealth v. Christopher L. Kennelly.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-27

COMMONWEALTH

vs.

CHRISTOPHER L. KENNELLY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Christopher L. Kennelly, appeals from a

District Court judge's orders denying his petitions for

expungement. He argues that the hearing judge abused her

discretion in denying his petitions for expungement and that his

testimony, and therefore the entire proceeding, was invalid

because he was not sworn under oath. We affirm.

Background. We summarize the relevant procedural history.

The defendant's petitions for expungement concern three separate

cases. In 1998, the defendant was charged with operating a

motor vehicle with a suspended license; operating a motor

vehicle without his license in his possession; and speeding. He

was found responsible on the operating without a license charge

and the other two charges were dismissed on payment of a fine.

In 2000, the defendant was charged with operating a motor
vehicle with a suspended license and speeding. The operating

with a suspended license charge was dismissed on payment of

court costs and he was found not responsible on the speeding

charge. In 2006, the defendant was charged with "shoplifting by

container switching." He provided a voluntary and signed

statement to the police admitting guilt and the shoplifting

charge was dismissed on payment of court costs.

On September 23, 2022, the defendant sought expungement of

the charges from the 1998, 2000, and 2006 cases in separate

petitions filed pursuant to G. L. c. 276, § 100K. For the

petitions related to the 1998 case and the 2000 case, the

defendant alleged "[e]rrors by law enforcement" and stated that

"[m]y license was not suspended, the court agreed and the charge

was dismissed." For the petition related to the 2006 case, the

defendant alleged "[e]rrors by civilian or expert witness(es)"

and stated, "I informed the officer I did not switch containers.

I was still charged, and after the court reviewed they agreed I

did not switch containers and I was not convicted." The

defendant signed the 1998 and 2006 petitions under the pains and

penalties of perjury and did not submit any supporting

documentation with the three petitions. 1

1 Although the petition filed in the 2000 case is unsigned, the
judge considered the information contained therein which was the
same as the information in the signed petition filed in the 1998
case.

2
At a hearing on October 24, 2022, the defendant provided

argument, but did not make any statements to the court under

oath. He argued that his motor vehicle charges should be

expunged because they were the product of a "computer system

issue." As to the shoplifting charge, he argued that the police

were mistaken when they identified him on video footage as the

individual shoplifting.

During the hearing, the judge asked the defendant whether

it was his signature on a written statement given to a detective

in relation to the shoplifting charge. The judge asked the

clerk whether the defendant had been sworn. The clerk stated

that he would swear the defendant in, after which the defendant

responded, "I wasn't sworn in. So let me read this." The clerk

asked the defendant, "[D]o you swear to tell the truth and

nothing but the truth so help you God?" The defendant did not

answer the clerk and instead stated, "I wasn't sworn in so I'll

read this. That looks like my signature, yes."

The judge denied all three petitions, stating that the

record did not support the defendant's testimony regarding the

computer system issue. The judge also explained that the

written statement by the defendant to the detective in relation

to the shoplifting charge contradicted the defendant's

allegations of mistaken identification. The defendant filed

timely notices of appeal on all three petitions.

3
Discussion. There are two pathways to expungement: "time-

based expungement" and "reason-based expungement." Matter of

Expungement, 489 Mass. 67, 69 (2022). The defendant's arguments

in the District Court were solely related to "reason-based

expungement." A judge has the discretion to order the

expungement of a criminal record if the court determines, based

on clear and convincing evidence, that the record was created as

a result of "demonstrable errors by [a] civilian . . .

witness[]," and if expungement is "in the best interests of

justice." G. L. c. 276, § 100K (a), (b).

"[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.'"
Matter of Expungement, 489 Mass. at 68. "In reviewing a

decision on a motion to expunge, we consider whether the judge

abused his or her discretion." Commonwealth v. K.W., 490 Mass.

619, 624 (2022).

In deciding whether to allow the petitions for expungement,

the judge was permitted to make factual findings, which

necessitated making determinations regarding the credibility of

the evidence. We accordingly see no abuse of discretion in not

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crediting the defendant's statements. 2 Without any other

credible evidence offered by the defendant, it was also proper

for the judge to conclude that the defendant had not satisfied

his threshold requirement of providing 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).

Regarding the 2006 shoplifting case, the defendant argues

that the expungement hearing should be declared invalid because

the "testimony" at the hearing was not taken under oath. See

generally Mass. G. Evid. § 603 (2023) ("Before testifying, a

witness must give an oath or affirmation to testify

truthfully"). The clerk attempted to swear the defendant in,

yet he would not give an oath or affirmation that he would

testify truthfully. It was the defendant's burden to present

clear and convincing evidence and because he willfully refused

to be sworn in, he in fact provided no sworn evidence at the

hearing at all; his unsworn statements could properly have been

struck. He therefore suffered no prejudice from the judge's

2 The defendant also claims that the judge's order is invalid
because it incorrectly cites "petitioner's misrepresentation on
docket [no.] 0657CR2402," which he correctly states he is not a
party to. The context makes clear that the judge was referring
to the 2006 shoplifting case and the error made by the judge,
who appears to have utilized the last four digits of the 1998
case rather than the 2006 case, was simply a scrivener's error.

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consideration of his unsworn statements at trial. In any event,

the judge was allowed to, and did, consider the statements made

by the defendant under the pains and penalties of perjury in his

applications for expungement, which, although quite brief, are

substantially the same as the arguments made by him during the

hearing. Accordingly, we affirm.

Orders dated October 24,
2022, denying petitions for
expungement affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ. 3),

Clerk

Entered: November 15, 2023.

3 The panelists are listed in order of seniority.

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