Commonwealth v. D.T.

• Court: Massachusetts Appeals Court
• Decided: October 11, 2024
• Docket: 23-P-1006
• Status: Unpublished

Opinion

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-1006

COMMONWEALTH

vs.

D.T.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, D.T., appeals from an order of a Boston

Municipal Court judge denying her request for expungement of the

record of a 1996 criminal complaint issued out of the Dorchester

District Court.1 We affirm.

The complaint that the petitioner seeks to have expunged,

issued in November 1996, charged a single count of assault and

battery by means of a dangerous weapon, in violation of G. L.

c. 265, § 15A. According to the police report, the petitioner

struck the alleged victim, her sister, with a plant pot. The

1The Dorchester District Court was not part of the Boston Municipal Court system in 1996. It was transferred to the Boston Municipal Court Department of the Trial Court in 2003. See St. 2003, c. 45, § 1, eff. July 1, 2003. petitioner was arrested and transported to the police station.

She was arraigned the next day, and the case was immediately

dismissed. The court record is silent as to the reason for the

dismissal. The record was sealed in 2013.

In the petitioner's first petition for expungement,

alleging errors by law enforcement and court employees, see

G. L. c. 276, § 100K (§ 100K), she claimed that she and her

sister had been arguing, but she did not throw any shoes or

possess any guns or "other nefarious items." She continued,

"The charge was wrong and we decided prior to [the] hearing to

have it dismissed." The judge denied the petition for

expungement for failure to demonstrate error by the police or

court employees. The petitioner filed a notice of appeal from

the denial of her petition.

In a subsequent petition for expungement, however, the

petitioner for the first time alleged false use, unauthorized

use, and theft of her identity, as well as fraud on the court,

contending that the case had been dismissed because the suspect

was "found not to be me." And in a later-filed motion for

reconsideration she alleged the discovery of new, exculpatory

evidence that she believes to demonstrate mistaken identity and

fraud on the court. The same judge denied the second petition

and the motion for reconsideration, finding that the petitioner

2 had failed to demonstrate "that her identity was used falsely

during this incident, that her identity was used without her

authorization, that someone stole her identity, that there were

errors by law enforcement, that there were errors by Court

employees, [or] that there was fraud perpetrated upon the

Court." The petitioner did not file any additional notices of

appeal.

As relevant here, to be entitled to reason-based

expungement under § 100K the petitioner must show "by clear and

convincing evidence that the record was created as the result of

(1) false identification of the petitioner or the unauthorized

use or theft of the petitioner's identity; . . .

(3) demonstrable errors by law enforcement; . . .

(5) demonstrable errors by court employees; or (6) demonstrable

fraud perpetrated upon the court." G. L. c. 276, § 100K (a).

See Commonwealth v. K.W., 490 Mass. 619, 621-622 (2022). We

review the judge's denial of a petition for expungement for

abuse of discretion. See id. at 624.

We agree with the motion judge that the petitioner failed

to show that the criminal complaint against her was issued as

the result of error by the police or court personnel. In her

initial petition, the petitioner did not claim mistaken

identity, but instead focused on the nature of the weapon

3 involved. The police report, however, demonstrated probable

cause that the petitioner assaulted the victim with a plant pot.

Though not a dangerous weapon per se, a plant pot could be

considered a dangerous weapon if used in an improper and

dangerous manner. See Commonwealth v. Sexton, 425 Mass. 146,

149-150 (1997).

The denials of the second petition for expungement and of

the motion for reconsideration are not properly before us

because the petitioner did not renew her notice of appeal. See

Custom Kits Co. v. Tessier, 97 Mass. App. Ct. 385, 388 n.7

(2020). In any event, we also agree with the judge that the

petitioner failed to demonstrate mistaken identity or fraud on

the court. To the extent the petitioner was mistakenly named in

Boston Municipal Court Docket No. 240203, that matter took place

in a different court, after the criminal complaint at issue in

this appeal had already been dismissed, and a judge ordered

deletion of the records of that case from the court activity

record information system. Nothing in the petition for

expungement or supporting materials suggests that the 1996

charges against the petitioner were the result of mistaken

identity or fraud.

The judge did not abuse his discretion in concluding that

the petitioner failed to demonstrate by clear and convincing

4 evidence that her record was the result of any of the reasons

set forth in § 100K.

Order denying petition for expungement affirmed.

By the Court (Massing, Hand & Smyth, JJ.2),

Clerk

Entered: October 11, 2024.

2 The panelists are listed in order of seniority.