Can I request an appeal if a judge disallows my petition to seal an arrest record?

Asked about 3 years ago - New Bedford, MA

I was arrested for B&E, A&B / wadw in April 2007. The case was dismissed due to the fact that my ex-girlfriend plead the 5th and the prosecution had no witness. I petitioned the court to seal the record in October 2011 so I can find a job but the judge disallowed the motion without giving a reason. Can I have this decision overturned? Does the fact that it was a felony mean anything?

Attorney answers (4)

  1. Dominic L. Pang

    Contributor Level 17

    1

    Lawyer agrees

    Answered . There are 2 ways to seal a dismissed case. One is to petition the court that issued the charges; another is to wait the requisite time period for the charges to age out and petition the Commissioner of Probation directly. You did a direct petition to the court, pursuant to G.L. ch. 276, s. 100C. The judge denied your petition, but probably did so "without prejudice". Aside from an appeal of this decision to the appellate court (an expensive and technical process, which has only a small chance of success), you can re-petition the court to seal the record.

    It could be that the the judge denied your petition at the first hearing, because he did not feel you made out a prima facie case for sealing. This often happens for defendants who represent themselves in sealing petitions and submit only the sealing form supplied by the court without sufficiently articulating the reasons necessary to make out a prima facie case. It is also possible that the judge denied your petition at the second hearing because he felt you did not satisfy the tests for sealing. Regardless of which stage the petition was denied, it is common for unrepresented petitioners to lose their sealing petitions. I would advise that you hire an attorney who has performed sealing petitions to assist you in the renewed petition, in order to increase you chances of a better result.

    Best of luck,

    Dominic Pang (617-538-1127)

  2. John E DeVito

    Pro

    Contributor Level 12

    Answered . In Massachusetts, a defendant can seal a felony record 15 years from the date the case is closed. Effective May of 2012 a defendant can seal a felony record 10 years from the date the case is closed. That procedure can be done administratively through the Office of the Commissioner Probation. In your case you attempted to seal your record prior to the administrative time by motion with the trial court. The judge in the trial court has the discretion to seal your record by balancing your need to seal the record with the public's right to know about your record. The judge denied your motion. You can appeal his decision to the Appeals Ct. but you are not likely to succeed. It may be wise to consult an attorney who may be able to ask the trial court to reconsider your Motion to Seal.

  3. Phil A. Taylor

    Contributor Level 14

    Answered . Sealing a record for a dismissed case is in the judge's discretion. It is unlikely that a discretionary decision will be overturned, but it would be possible for the appeals court to order the judge to give reasons.

    You state that you want it sealed to assist getting a job, but have you been denied a job based on your CORI? Employers are restricted in what criminal information they can ask an applicant about and what they would be on a CORI report they obtain (conviction details). The information you are trying to keep privstr, may already be private.

    DISCLAIMER: This answer is provided in response to a "hypothetical" question and provided for general,... more
  4. Christine C McCall

    Pro

    Contributor Level 20

    Answered . It is not clear from your statement of facts that you were eligible for "sealing" under california's limited statutory bases for sealing of criminal history info. In all events, denials of petitions to seal criminal records can be appealed, but such appeals are rarely successful because the law leaves the critical factual determination up to the discretion of the judge. Appellate courts rarely overturn a court's exercise of discretion. Talk with a local criminal appeals attorney for a candid assessment of your prospects for success.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more

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