Commonwealth v. D.T. ( 2024 )

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
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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
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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.
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