Commonwealth v. A.S.

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

25-P-210

COMMONWEALTH

vs.

A.S.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a District Court judge's

order to seal the records of several nonconvictions at the

request of the petitioner, A.S. On June 5, 2017, A.S. was

charged with one count of assault by means of a dangerous weapon

in violation of G. L. c. 265, § 15B (b). The case was dismissed

one month later for lack of prosecution. On August 7, 2018,

A.S. was charged with one count of assault and battery on a

family or household member in violation of G. L. c. 265,

§ 13M (a), one count of assault and battery in violation of

G. L. c. 265, § 13A, and one count of assault and battery by

means of a dangerous weapon in violation of G. L. c. 265,

1 A pseudonym.
§ 15A (b). This case was scheduled for a jury-waived trial on

January 9, 2019; instead, it was dismissed on that date for lack

of prosecution. On December 21, 2022, A.S. was charged with one

count of assault and battery on a household or family member in

violation of G. L. c. 265, § 13M (a). A jury-waived trial was

scheduled for October 31, 2023, at which time the Commonwealth

filed a nolle prosequi, citing inability to sustain its burden

of proof because the alleged victim had failed to appear.

In July 2024, A.S. filed several petitions to seal certain

entries on his criminal record, including those mentioned above.

See G. L. c. 276, § l00C; Commonwealth v. Pon, 469 Mass. 296,

297 (2014). The judge conducted a hearing and considered

arguments from both A.S. and the Commonwealth. After taking the

matter under advisement, the judge found that good cause existed

to grant A.S.'s petition and sealed the nonconviction records at

issue. We affirm.

Discussion. We review the motion judge's decision to seal

a record for abuse of discretion or error of law. Pon, 469

Mass. at 299. "Under the abuse of discretion standard, the

issue is whether the judge's decision resulted from 'a clear

error of judgment in weighing the factors relevant to the

decision . . . such that the decision falls outside the range of

reasonable alternatives.'" Commonwealth v. Kolenovic, 471 Mass.

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664, 672 (2015), S.C., 478 Mass. 189 (2017), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

In Pon, 469 Mass. at 321-322, the Supreme Judicial Court

"announce[d] . . . a lower standard for sealing" a criminal

record under G. L. c. 276, § 100C, requiring that a petition to

seal should "set[] forth facts that demonstrate good cause for

overriding the presumption of public access to court records."

The petitioner has the burden to show good cause for sealing

based on the following factors:

"the particular disadvantages identified by the defendant
arising from the availability of the criminal record;
evidence of rehabilitation suggesting that the defendant
could overcome these disadvantages if the record were
sealed; any other evidence that sealing would alleviate the
identified disadvantages; relevant circumstances of the
defendant at the time of the offense that suggest a
likelihood of recidivism or of success; the passage of time
since the offense and since the dismissal or nolle
prosequi; and the nature of and reasons for the particular
disposition."

Id. at 316. The Pon factors are not exclusive, as the judge

"may consider any factors relevant to their weighing of the

interests at stake." Commonwealth v. J.F., 491 Mass. 824, 842

(2023). In the end, the judge must employ a balancing test to

determine whether the petitioner's right to privacy outweighs

the public's right of access. Pon, supra.

In this case, the judge, using the Trial Court form

entitled "Findings and Order of Court on Petition to Seal

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Record(s) under G. L. c. 276 § 100C," found that all six factors

articulated in Pon weighed in favor of sealing. Specifically,

the judge found that A.S. had shown, with sufficient

particularity, Pon factor one; that some disadvantage from the

records "exists at this time or is likely to exist in the

foreseeable future." The judge checked the box taking judicial

notice that the existence of a criminal record can present

barriers to housing and employment opportunities. The judge

also checked the boxes corresponding to a finding that the

petitioner established: (1) the risk of unemployment or

underemployment, denial of housing, and homelessness; (2) the

potential for reduced opportunities for economic or professional

advancement; and (3) reliance on public assistance for support

despite efforts to achieve gainful employment.

As to Pon factor two, rehabilitative efforts, the judge

considered that A.S., having struggled with substance use for a

significant portion of his life, was voluntarily participating

and residing in a substance abuse program, had maintained his

sobriety, successfully completed probation, and had no further

contact with the criminal justice system. In deciding the

applicability of the third Pon factor, alleviating an identified

disadvantage, the judge checked the boxes reflecting that the

nature of the underlying crimes, the stigma associated with the

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crimes, and the positive impact that sealing has on the sense of

privacy, weighed in favor of sealing. Finally, as to Pon

factors four, five, and six, the judge found that the ages of

the cases, the passage of time since the dates of the offenses,

the dates of dispositions of the cases, and the nature and

reasons for the dispositions all weighed in favor of sealing the

nonconvictions.

The Commonwealth argues that the judge abused his

discretion because A.S.'s charges showed a pattern of domestic

violence and that insufficient time had passed since the

dismissal of his most recent charge. It further argues that,

because of the dynamics of domestic violence, the weight applied

to nonconviction of a charge of domestic violence should be

heavier than is applied to nonconviction of other charges. The

Commonwealth also argues that the judge's use of the Trial Court

form for his decision lacked specificity because the judge

failed to explicitly state that he had considered (and rejected)

any of the Commonwealth's arguments opposing the petition.

After reviewing the record that was before the judge, we

are confident there was no abuse of discretion in sealing A.S.'s

nonconvictions. We disagree with the Commonwealth's contention

that the balancing of the Pon factors requires a different

result. The Commonwealth quarrels with certain of the judge's

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findings, such as the finding that A.S. adequately established

his reliance on public assistance. The docket entries before

the judge showed that, as recently as 2023, A.S. was represented

by a court-appointed attorney. Moreover, at his hearing, A.S.

was represented by an attorney from Community Legal Aid, which

the judge could take judicial notice represents low-income

residents. Finally, the judge learned at the hearing that A.S.

was working two part-time jobs at a local coffee house and a

hotel, respectively. Therefore, we cannot say that the judge's

finding that A.S. relied on public assistance despite efforts to

achieve gainful employment was erroneous. In any event, even if

the record did not support this particular finding, it was but a

single factor among many. Considering all the other facts in

the record that supported A.S.'s petition, we cannot say the

judge abused his discretion in determining that A.S.

"demonstrate[d] good cause for overriding the presumption of

public access to court records." Pon, 469 Mass. at 322.

Indeed, the evidence in the record more than amply

supported the judge's findings that A.S. had made strides in

rehabilitation after he voluntarily entered a recovery program

to address his longstanding struggle with substances and had

maintained his sobriety thereafter. In addition, A.S. enrolled

at a community college to pursue a career in counseling. The

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Commonwealth argues, in essence, that A.S.'s rehabilitation was

lacking because he did not successfully complete a program

addressing his pattern of domestic violence. This argument

misses the mark, however, as there is no one single method

required to demonstrate rehabilitation, nor any necessary

quantum of rehabilitative efforts that must be accomplished.

Rather, we leave the weighing of these facts to the sound

discretion of the judge. See Commonwealth v. K.W., 490 Mass.

619, 631 (2022) (weighing Pon factors in judge's discretion).

Next, the Commonwealth claims that the judge improperly

found that A.S. had met his burden of establishing the

particular disadvantages he faces due to his criminal record.

In essence, the Commonwealth claims that A.S. failed to show he

faced disadvantages because the judge heard evidence that A.S.

had graduated from a recovery program, found an apartment, and

secured employment. Pon makes clear, however, that a petitioner

need only make a credible allegation of "some disadvantage

stemming from [criminal offender record information]

availability that exists at the time of the petition or is

likely to exist in the foreseeable future. This can include,

but is not limited to, a risk of unemployment [or]

underemployment" (emphasis added). Pon, 469 Mass. at 316-317.

Moreover, while A.S. was employed, his employment was not full-

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time, and the judge could properly consider this fact when

balancing the interests of privacy with that of public access.

Likewise, the Commonwealth quarrels with the judge's conclusion

that A.S. presented sufficient evidence of rehabilitation,

arguing that, while he had enrolled in anger management, he had

not completed a domestic abuse program. While the Commonwealth

may be correct that participation in a domestic violence program

would have been more beneficial to reducing the risk of harm

presented by A.S., there was no evidence presented to the judge

to support the Commonwealth's contention, and we cannot say that

the judge abused his discretion by crediting the anger

management courses.

Citing J.F., 491 Mass. at 843, the Commonwealth argues that

the judge's failure to specify the reasons for his decision

should result in vacatur of the order and remand. We disagree,

as J.F. does not stand for the proposition that the judge must

specifically articulate the reasons he did not accept the

Commonwealth's opposition. Rather, J.F. stands for the

proposition that judges must establish that they have engaged in

the appropriate balancing of the interests and explicitly state

the factors that were considered. Id. at 844. In concluding

that A.S.'s nonconvictions should be sealed, the judge

considered the oral and written arguments of both parties. He

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was actively engaged in the hearing and asked questions of A.S.

and his counsel. The evidence presented at the hearing provided

ample support for the judge's findings and order, and the judge

was not required to specifically articulate why he did not

accept the Commonwealth's arguments.

Order allowing petition to
seal records affirmed.

By the Court (Walsh, Toone &
Tan, JJ.2),

Clerk

Entered: February 5, 2026.

2 The panelists are listed in order of seniority.

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