Commonwealth v. A.B.

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

21-P-117

COMMONWEALTH

vs.

A.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, A.B., appearing pro se, appeals from the

denial of a petition for expungement under G. L. c. 276, § 100K.

The petitioner was charged in June, 2015, with assault and

battery on a family or household member under G. L. c. 265,

§ 13M (a). In December, 2015, the petitioner filed a motion to

suppress. In January, 2016, upon the request of the petitioner,

the case was dismissed for failure to prosecute. After hearing,

a motion to seal was allowed. On October 13, 2020, the instant

petition for expungement was filed. Fourteen days later it was

denied without hearing.

Under G. L. c. 276, § 100K, the court may order expungement

of the records of a criminal case if the court, first,

determines, based on clear and convincing evidence, that the

record was created as a result of one of six itemized reasons.
Once that threshold showing has been made, the court then has

discretion to order an expungement "based on what is in the best

interests of justice." G. L. c. 276, § 100K (b). We review the

judge's decision for abuse of discretion. See Commonwealth v.

K.W., 490 Mass. 619, 624 (2022).

The statutorily enumerated reason supporting the

expungement alleged by the petitioner in his petition, signed

under the penalties of perjury, was that the record was created

as a result of "demonstrable errors by law enforcement." See

G. L. c. 276, § 100K (a) (3). In the petition, the petitioner

maintained that on the date of his arrest, June 17, 2015, he was

questioned without Miranda warnings by "uniformed, armed law

enforcement officers" in an office at his workplace with a

closed door. He asserted that any statements he made were not

freely or voluntarily given. He also stated that his arrest was

based on accusations made during a separation leading to a

divorce from the alleged victim, perhaps intending to imply that

she lacked credibility. He asserted that the record of this

charge against him is "available to criminal justice, municipal,

and state agencies, thereby limiting [his] full participation in

society[,]" and that the expungement of the record would be "in

the interest of justice."

Before us, the petitioner argues that he "has demonstrated

that the arrest violated his Fifth and Sixth Amendment [to the

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United States Constitution] rights. Furthermore, the

allegations against the [p]etitioner made by [the alleged

victim] lack credibility, particularly in light of her own

history of using the criminal justice system to manipulate

others."

We conclude that the petition did not contain sufficient

factual allegations, even accepting them as true, to demonstrate

by clear and convincing evidence that the charges against the

petitioner were brought (and thus the records at issue created)

as a result of "demonstrable errors by law enforcement."

Consequently, we conclude that the judge committed no abuse of

discretion in denying the petition.

The threshold issue that the petitioner was required to

demonstrate by clear and convincing evidence was that the

criminal record of this case was created as a result of

demonstrable errors by law enforcement. Before us, the only

"error" by the police explicitly alleged is an unlawful arrest.

Even if we assume that the petitioner was arrested unlawfully,

something that has not been found by any court, the petitioner

does not explain how it was his unlawful arrest that resulted in

the creation of these criminal records. It appears that the

alleged victim made the allegations against him. Nothing either

in the petition or before us demonstrates that the criminal

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charges were not issued as a result of those allegations, rather

than his arrest.

The petitioner suggests that he was unlawfully interrogated

in his office without required Miranda warnings, again something

that has not been found by any court, and, at least below, that

any statements he gave during interrogation were not freely and

voluntarily given.

Even if we were to treat obtaining incriminating statements

through violation of Miranda and obtaining such statements in a

manner in which they were not given freely and voluntarily, as

an "error by law enforcement" within the meaning of the statute,

a question we need not reach, the petition does not describe

either what statements, if any, the petitioner provided to

police in his office, or how they resulted in the creation of

the criminal records that he seeks to have expunged.

The petitioner does also state that the allegations made by

the alleged victim were not credible, but he does not explain

how that demonstrates that the records at issue in this case

were created as a result of demonstrable errors by law

enforcement.

Thus, even assuming everything in the petition is true, the

petitioner has not shown by clear and convincing evidence that

the records were created as a result of demonstrable errors by

law enforcement. Given this, we see no abuse of discretion in

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the judge's order denying the motion. We note that the judge's

denial was without prejudice, meaning the petitioner is

permitted in the future to file another motion for expungement

-- which presumably might be successful should he be able to

present a stronger or different case.1

Order denying petition
for expungement affirmed.

By the Court (Rubin, Ditkoff
& Grant, JJ.2),

Assistant Clerk

Entered: March 5, 2024.

1 We note that the records have previously been ordered sealed,
and that a judge ordered them unsealed and resealed for purposes
of docketing an appeal. Those records thus remain sealed. To
the extent any unsealed copies of any of the covered records
exist in either the trial court or this court, consistent with
the original trial court order, the clerks of both courts shall
ensure they are sealed.
2 The panelists are listed in order of seniority.

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