COMMONWEALTH v. KENNY (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, formerly a teacher, was charged on June 24, 2011, with nine counts of statutory rape, G. L. c. 265, § 23, and three counts of procuring alcohol for a minor, G. L. c. 138, § 34. On March 26, 2014, approximately ten days before trial, the parties agreed that the Commonwealth would nol pros all twelve charges in exchange for the defendant's entering an Alford plea to two counts of unnatural and lascivious acts with a child under sixteen, G. L. c. 272, § 35A, one of his students. See North Carolina v. Alford, 400 U.S. 25 (1970). The matter was continued without a finding for three years. He was sentenced to a three-year term of probation with conditions that included that he complete any evaluations, programs, and therapies recommended by the probation department other than sex offender counselling; that he have no unsupervised contact with any child under the age of sixteen other than his biological children; that he not be employed or participate in any volunteer activity where he would have direct, substantial, unsupervised contact with any child under the age of sixteen; and that he not be employed as any kind of teacher.

Seven months after his Alford plea, the defendant filed a petition under G. L. c. 276, § 100C (first petition), to seal the charges that had been nol prossed, which was opposed by the Commonwealth and denied by a judge. After he successfully completed probation, he filed the instant petition to seal his entire record, which the Commonwealth again opposed. A different judge held a nonevidentiary hearing and denied that petition, holding in full, “After hearing, the petition is denied.” The defendant now appeals from the denial of his second petition.

Because all charges against him have been nol prossed or dismissed, the defendant is eligible for the discretionary sealing of his entire record under G. L. c. 276, § 100C.² The standard that judges must employ in deciding whether to seal a defendant's criminal record under that statute was articulated in Commonwealth v. Pon, 469 Mass. 296 (2014). The ultimate question is “whether the defendant has established good cause for sealing his or her record.” Id. at 314. In making this determination, judges should evaluate, at a minimum, 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 review the motion judge's decision for abuse of discretion or error of law. Commonwealth v. Doe, 90 Mass. App. Ct. 793, 795 (2016).

The defendant avers that “[s]ince [his] plea, [he has] applied to obtain many jobs, but [has] been shut out from all of them, from the menial to the professional,” has only been able to obtain sporadic work that was “not sufficient to provide a living,” and has had to “rely upon income from [his] wife as well as assistance from family members.” Now that the charges against him have been dismissed, however, most employers examining his criminal record will not be able to access the charges that were made against him. To most employers, his record will appear clear. See 803 Code Mass. Regs. § 2.05(4)(a)(1) (2017) (“Standard Access” to criminal offender record information is available to employers, and includes continuances without a finding “until they are dismissed”). The availability of his criminal record to these employers will not disadvantage the defendant, nor with respect to them, would sealing it have any effect.

The defendant argues, however, that “[p]rior to this episode, [he] was a well regarded career teacher, and had planned to continue in that vocation until retirement.” The record of the charges against him will apparently remain available to public and private schools as well as other agencies that work with children. He also avers that it would be impossible to obtain a teaching position unless these records were sealed.

We grant that it is unlikely that a prospective school employer who could access the defendant's record would hire him, and we will assume that schools would not have access to the record if they were sealed (entities at certain “Required Access” levels may obtain even sealed records, see 803 Code Mass. Regs. § 2.05[3][a][4] [2017] ). The question before us, then, is whether the motion judge abused his discretion in declining to seal the defendant's records in order to allow him to overcome the disadvantage of being unable to obtain a teaching position because of his guilty pleas under Alford to two counts of unnatural and lascivious acts with a child under sixteen, his own student, as well as the other charged conduct.

The Commonwealth argues, among other things, that, since the defendant pleaded guilty to these charges, public safety requires that the record not be sealed. It argues that the disadvantages imposed by the availability of his record to schools are just, that more evidence of rehabilitation was needed, see Pon, 469 Mass. at 319, and that schools and agencies that work with children should know of the charges against him.

The defendant argues that this is not the case because his was an Alford plea. He argues that he has consistently maintained that he was wrongfully accused of the crimes by the alleged victim, that he has never admitted guilt, did not commit the crimes, and has nothing to rehabilitate. He claims the victim was paid $ 600 by the mother of his children to make these false accusations so that the mother could gain custody of their children, and argues, also citing Pon, that “[d]efendants who were subject to wrongful accusations present the strongest case for sealing.” Id. He included in his motion a transcript of a telephone call and a photograph, both of which, he claims, corroborate his theory. He also states in an affidavit that, two years before he was indicted, “[a]fter a full review of the same evidence in the Probate and Family Court at a multi-day trial in June of 2009, [he] obtained custody of [his] two daughters. The judge did not credit the allegations of abuse of this neighbor child, which were a central issue in the case.”

The Commonwealth argues, citing the characterization of its representations by the judge who denied the defendant's first petition, that it nol prossed the initial charges because the alleged victim was reluctant to testify, not because the charges were fabricated, and that the prosecutor continued to believe that the alleged victim's allegations were credible.

The mere fact that the defendant entered an Alford plea does not mean that the judge was bound to conclude that he was innocent of the crimes to which he pleaded, rather than guilty. And unless the defendant was, in fact, innocent, on all the facts and circumstances here, the decision not to seal his records was well within the scope of the judge's discretion. We may assume without deciding that there would be strength in the defendant's argument if a court of competent jurisdiction entered a factual finding based on all the evidence that the precise allegations by the child that formed the basis of all the charges against the defendant in this case were fabricated. But no records from the Probate and Family Court that might indicate any such finding have been provided, and the defendant's affidavit, even if credited, which the judge was not bound to do, falls short of asserting that any such finding was made in the Probate and Family Court. In these circumstances, then, the defendant has not demonstrated any abuse of discretion or other error of law in the judge's decision.³ The order denying the defendant's petition to seal his criminal record is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   Although the docket shows that the defendant was discharged when probation terminated, it does not say explicitly that the unnatural and lascivious acts charges were dismissed. Because dismissal results when the defendant has successfully completed probation, see Commonwealth v. Powell, 453 Mass. 320, 327 & n.9 (2009), and no party has suggested otherwise, we conclude that those charges were dismissed.

3.   We also reject the defendant's claim that the judge abused his discretion by giving only “superficial consideration” to his arguments. Although the order itself was short, the judge at the hearing indicated that he had read all the written submissions, and the transcript makes clear that he was familiar with the facts and the arguments before him.