Commonwealth v. John Doe. ( 2023 )

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-1079
COMMONWEALTH
vs.
JOHN DOE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John Doe, was charged with assault and
battery on his daughter in August of 2020. The case was
dismissed for lack of prosecution on November 19, 2020. Some
110 days after the dismissal, Doe filed a petition to seal his
criminal record. See G. L. c. 276, § l00C; Commonwealth v. Pon,
469 Mass. 296 (2014). After a hearing in which a judge of the
District Court considered the arguments of counsel and
affidavits and documents filed by Doe, the judge denied the
request on the grounds that neither the passage of time nor
nature and reason for the disposition militated in favor of its
allowance.1 We affirm.
1 The Commonwealth took no position on the request.
Discussion. We review the motion judge's decision for an
abuse of discretion or error of law. Pon, 469 Mass. at 299. In
Pon, supra 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 defendant's petition
should "set[] forth facts that demonstrate good cause for
overriding the presumption of public access to court records."
Doe carried the burden, id. at 314, 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.
We are confident that the judge did not abuse her
discretion based on the record before her. The police reports
before the motion judge stated that Doe, a father of three in
his mid-fifties, had an argument with his then-eighteen year old
daughter, that she threw a metal cup of water at him, that he
ran up the stairs demanding that she pick it up, and that he
pushed her to the ground when she did not. The daughter called
2
the police, but subsequently declined to press charges.2 Doe
sought sealing on the grounds that he had no criminal history,
his actions were uncharacteristic and borne of a fraught family
dynamic based on his daughter's history, and the impact of the
availability of this record on his career in health care. We
consider these arguments in turn.
Doe maintains that the incident was isolated and would not
be repeated, that he had no criminal record of any kind, and
that sealing was therefore in order. While there is some force
to this argument, the judge was not required to accept it,
particularly when the motion was brought less than four months
after the dismissal of the charges. To the extent that the
judge's decision reflected a preference for evaluating Doe's
risk of recidivism over a longer span of time, we cannot say
that that determination fell outside the range of reasonable
alternatives or demonstrated "a clear error of judgment in
weighing the factors relevant to the decision" (quotation and
citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
Doe also contends that he risks losing important
professional certifications as a health care provider if his
2 Although Doe now suggests that the judge should not have
credited the police report, it was attached as an exhibit to his
petition, and he did not seek to testify or challenge it.
3
record is revealed to licensing authorities, thus imperiling his
career of nearly three decades. In essence, this is a challenge
to the judge's decision not to find in Doe's favor on the first
three Pon factors. "As explained in Pon, 469 Mass. at 316, a
defendant seeking to seal his record 'need not establish a risk
of specific harm, [so long as] he . . . allege[s] with
sufficient particularity and credibility some disadvantage
stemming from [criminal offender record information (CORI)]
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)." Commonwealth v. Doe, 90
Mass. App. Ct. 793, 797 (2016), quoting Pon, supra at 316-317.
However, as the Commonwealth points out on appeal, the
relevant licensing authorities have "standard" CORI access, and
therefore would not be privy to a record of a charge that was
dismissed. See G. L. c. 6, § 172 (a) (3); 803 Code Mass. Regs.
§ 2.05(4) (2021). Doe has not cited any authority to the
contrary.3 Doe's showing therefore fell short of demonstrating
3 Doe also alleges that the Drug Enforcement Administration would
seek his criminal record in the course of the renewal of his
controlled substances registration, that a record of a dismissed
charge would result in nonrenewal of this registration, and that
his ability to prescribe would be limited as a result. However,
G. L. c. 6, § 172 (a) (1), provides that "[c]riminal justice
agencies may obtain all criminal offender record information,
including sealed records, for the actual performance of their
4
"with sufficient particularity and credibility" that he would be
disadvantaged in the licensing process. Pon, 469 Mass. at 316.
The judge was charged with determining whether there was
good cause to seal Doe's record by carefully balancing Doe's
interest in privacy against the public right of access. Pon,
469 Mass. at 316. In the absence of a demonstrated risk of
harm, together with the short span of time in which the petition
was filed and the fact that the dismissal was based on the
noncooperation of the daughter, we cannot say the judge abused
her considerable discretion in striking that balance here.
Order denying motion to seal
affirmed.
By the Court (Sullivan,
Shin & Hodgens, JJ.4),
Clerk
Entered: February 10, 2023.
criminal justice duties" (emphasis added). Thus, Doe has not
met his burden to show that sealing would ameliorate any risk
regarding loss of registration.
4 The panelists are listed in order of seniority.
5