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13-P-1183                                             Appeals Court

                 COMMONWEALTH   vs.   OCTAVIANO ALVES.


                           No. 13-P-1183.

            Suffolk.     June 9, 2014. - August 27, 2014.

             Present:   Kantrowitz, Agnes, & Hines, JJ.1


Criminal Records. Practice, Criminal, Record, Complaint.
     Evidence, Identity. Mistake.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on March 7, 2012.

     A motion to expunge court and criminal records was heard by
James W. Coffey, J., and a motion for reconsideration was heard
by him.


     Hung Tran for the defendant.
     Amanda Teo, Assistant District Attorney, for the
Commonwealth.


     AGNES, J.    The single question before us is whether the

proper remedy for a clerical error that results in the issuance


     1
       Justice Hines participated in the deliberation on this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
                                                                    2


of a criminal complaint against a person who not only did not

commit the crime, but also was never the intended target of the

police investigation, is to seal the record pursuant to G. L.

c. 276, § 100C.   In the unusual circumstances of this case, we

conclude that even though the error was not corrected until the

eve of trial when the complaint was dismissed, the statutory

remedy of sealing the record was not the only option available

to the judge, and that an expungement order is appropriate.2

     Background. Due to a clerical error, Octaviano Alves (date

of birth:   1983) (Alves 1983), was charged with leaving the

scene of a motor vehicle accident after causing property damage

in violation of G. L. c. 90, § 24(2)(a) (criminal docket number

1207CR1074).   Alves 1983 did not commit the offense, nor was he

ever suspected of committing the offense.   The actual

perpetrator, i.e., the driver of the vehicle who left the scene,

was Octaviano Alves (date of birth:   1977) (Alves 1977).   Alves

1977, the correct defendant, was apprehended by the police, but

was not arrested.   A citation was delivered to him in hand.    The

     2
       We note that the office of the district attorney for
Suffolk County concurs with the view expressed by the aggrieved
party: that a judge is authorized to expunge a record in a case
like this in which the person charged is not only factually
innocent of the crime, but also was never the intended target of
the police investigation. In addition, we were informed at oral
argument that the office of the Commissioner of Probation, which
was served with copies of the trial papers and appellate brief
filed by the aggrieved party, and which is represented by the
Attorney General, was made aware of this appeal, but chose not
to file a motion to intervene.
                                                                    3


police accurately recorded Alves 1977's name, date of birth,

Massachusetts license number, and home address.    The police

filed a timely application for a criminal complaint against

Alves 1977.   After a "show cause" hearing attended by Alves

1977, see G. L. c. 218, § 35A, as amended through St. 2004,

c. 49, § 200, probable cause to issue process was found to

exist, but, due to a clerical error, the summons and the

complaint contained an incorrect date of birth that corresponded

to Alves 1983.

    Although the summons and complaint were mailed to Alves

1977's address, he did not appear for arraignment and was

defaulted.    However, due to the clerical error, the default was

recorded incorrectly on the record of Alves 1983, who learned

about it during a subsequent appearance in another court.     The

source of the error was not immediately apparent, and did not

become clear to all concerned until about one year after the

incident occurred, when, on February 5, 2013, the trial in the

case was set to begin.    At that time, the prosecutor, the

police, the judge, and the probation department agreed that

Alves 1983 was factually innocent of the crime and was never the

intended target of the police investigation.    The judge decided

against substituting the correct date of birth on the court and

probation records and, instead, decided to dismiss the criminal

complaint against Alves 1983, and to issue a new criminal
                                                                   4


complaint against Alves 1977.   The judge suggested that counsel

for Alves 1983 file a motion to expunge his criminal record.

Counsel filed such a motion, but when the matter came before a

different judge, he denied the motion.3

     Discussion.   General Laws c. 276, § 100C, second par., as

amended by St. 2010, c. 256, §§ 131 & 132, provides in part that

“[i]n any criminal case wherein a nolle prosequi has been

entered, or a dismissal has been entered by the court, and it

appears to the court that substantial justice would best be

served, the court shall direct the clerk to seal the records of

the proceedings in his files.   The clerk shall forthwith notify

the commissioner of probation and the probation officer of the

courts in which the proceedings occurred or were initiated who

shall likewise seal the records of the proceedings in their

files.”   The statute does not provide for alternative remedies


     3
       The motion filed by Alves 1983 requested the court to
order that his record "including but not limited to any and all
police reports, 'mug' shots, fingerprints, booking records,
booking sheets, computer records, and any and all other records
of any nature or description maintained by or created by the
court, Boston [p]olice [d]epartment, the Department of Probation
and the Department of Criminal Justice Information Services
[DCJIS]" relating to the incident in question of January 12,
2012, be expunged. The judge denied the motion to expunge and a
motion for reconsideration based on the view that he lacked the
authority to grant the relief requested on account of the
holding in Commonwealth v. Boe, 456 Mass. 337 (2010), which we
discuss in the text, infra. Nevertheless, the judge did observe
that "it is unfair to have this entry on his record, when by all
accounts he had nothing to do with the incident."
                                                                   5


such as expungement,4 and does not contain any suggestion that

under certain circumstances the Legislature intended that the

records to which it applies would be destroyed.   See

Commonwealth v. Gavin G., 437 Mass. 470, 482 (2002).

     When a motion to expunge a criminal record is filed on

behalf of a person who was charged with, but not convicted of, a

crime, the proper response in all but the most exceptional

circumstances will be to deny relief because the Legislature has

prescribed that sealing a record is the appropriate remedy when

a criminal case is terminated by a prosecutor filing a nolle

prosequi under Mass.R.Crim.P. 19, 378 Mass. 888 (1979), or a

judge dismisses the case.   See Commonwealth v. Boe, 456 Mass.

337, 344-346 & n.13 (2010).5   Thus, whether records subject to


     4
       "Expungement is a much stronger and more absolute remedy
than sealing. When a record is expunged, all traces of it
vanish, and no indication is left behind that information has
been removed. In contrast, when records are sealed under G. L.
c. 276, § 100C, they do not disappear; they continue to exist
but become unavailable to the public.” Commonwealth v. Boe, 456
Mass. at 338 n.2 (citations omitted).
     5
       "The second paragraph of G. L. c. 276, § 100C, authorizes
the sealing of a defendant's records only when 'it appears to
the court that substantial justice would best be served.' A
defendant seeking to have criminal records sealed must follow
the two-step procedure described in Commonwealth v. Doe, 420
Mass. 142, 149–151 (1995)." Boe, 456 Mass. at 348 n.15. The
procedure for discretionary sealing of a criminal record under
G. L. c. 276, § 100C, set forth in the Doe case has been
revised. The Supreme Judicial Court has established a new
standard for determining when substantial justice would best be
served by the sealing of certain criminal records under § 100C.
See Commonwealth v. Pon, 469 Mass. 296, 308-321 (2014).
                                                                      6


G. L. c. 276, § 100C,     pertain to charges dismissed prior to or

subsequent to arraignment makes no difference:     in either case,

the remedy for a charge that is dismissed or nol prossed because

it is discovered that the person charged did not commit the

offense is almost always to seal the record.6

         That sealing is the default position is illustrated by

Commonwealth v. Boe, supra at 338–339.     In Boe, the defendant

was the owner of the vehicle that reportedly left the scene of

an accident.     Even though the victim described the driver of the

vehicle as a short Hispanic male, the police charged the female

owner.     She was arraigned on the charge, but when the mistake

was discovered, the case was nol prossed and the judge ordered

that the records pertaining to the erroneous charge be expunged.

Ibid.     In reversing the order of expungement, the Supreme

Judicial Court explained that the sole remedy in such a case is

to seal the defendant's record in accordance with G. L. c. 276,

§ 100C.     See id. at 348 (“That Boe should not have been charged

with a crime in the first place does not render the information

in the record inaccurate or misleading, and, in such

circumstances, the Legislature has concluded that the




     6
       The correction of a court record to make it conform to the
true facts is not accomplished by expungement. The correction
of an inaccurate record is an act pursuant to the inherent
authority of the court. See Boe, supra at 348.
                                                                   7


appropriate remedy is the sealing of her record” [footnote

omitted]).

    Nevertheless, despite the fact that the sealing statute

does not authorize expungement as an alternative remedy, there

are exceptional cases that do not come within the scope of G. L.

c. 276, § 100C, in which expungement of criminal records

maintained by the court and the Commissioner of Probation is

authorized.   See Commonwealth v. Moe, 463 Mass. 370, 373 (2012),

cert. denied, 133 S. Ct. 1606 (2013).     In Moe, the Supreme

Judicial Court recognized that ordinary factual mistakes about

the identity of the perpetrator of a crime that result in

criminal charges being brought against an innocent person do not

provide an occasion for the remedy of expungement, even when the

erroneous information supplied to the police was the result of

intentional misrepresentations by another person.     Id. at 376

("[T]he police officer applied for the criminal complaint based

on erroneous information.   The complaining officer may have

acted negligently in failing to investigate further [the

accuser's] story, but negligence is not fraud").    According to

the analysis in Moe, in determining whether the remedy of

sealing is the exclusive option, the critical question is

whether the records accurately reflect the charging decision

made by the prosecution and the police.
                                                                   8


     "More important, it is clear that the officer intended to
     initiate the complaint against the defendant himself -- not
     an impostor. Thus, this is not a case such as S.M.F.,[7]
     where, because of the actions of the impostor, the court
     records themselves were completely false and misleading.
     Like Boe, the defendant should not have been charged with
     assault by means of a dangerous weapon because no such
     assault ever occurred. Nonetheless, the criminal records
     reflect accurately the pertinent underlying facts, namely,
     that he was charged with this crime, and that the case was
     later disposed of by entry of a nolle prosequi."

Ibid.

     The present case is the rare case in which the criminal

charge was a fiction in the sense that it was never the

intention of the police or the prosecutor to initiate criminal

charges against the person who was charged.   See Commonwealth v.

     7
       The reference "S.M.F." is to Commonwealth v. S.M.F., 40
Mass. App. Ct. 42 (1996). In S.M.F., a woman was arrested for
assault and battery by means of a dangerous weapon and receiving
stolen property. Ibid. She gave her name as S.M.F. but was in
fact an impostor who had probably stolen S.M.F.'s identifying
documents. When the deception was discovered, a judge in the
Boston Municipal Court ordered, among other things, that S.M.F.
be found not guilty and discharged as a defendant, and that a
new criminal complaint issue in the name of Jane Doe, the
unidentified impostor. Id. at 43. The true S.M.F. moved to
expunge her criminal records. Ibid. We found § 100C
inapplicable because “the statute deals with the confidentiality
of records of persons against whom proceedings were begun by a
deliberate act of prosecution against the named person . . . .
Here, the deliberate act of prosecution was not against S.M.F.
She was not arrested, tried, and acquitted -- a case on which
G. L. c. 276, § 100C, would have a bearing. Nor was there a
decision not to prosecute the complaint. Jane Doe was the
person arrested and the Commonwealth has every intention to
press the prosecution against Jane Doe if it can find her
. . . . Since what occurred does not fit in either of the two
categories of dispositions contemplated by § 100C, the case
falls into that residual category not covered by statute and as
to which the inherent judicial power to expunge survives.” Id.
at 44–45.
                                                                     9


S.M.F., 40 Mass. App. Ct. 42, 45 (1996).   "No rational public

policy favors the preservation of a fictitious record.     Yet the

capacity of a fictitious record to do mischief is considerable.

Criminal records, even if sealed, can form a cloud of

prosecution.   Nobody who is entirely disconnected from the

criminal episode should be subjected to such a cloud."     Id. at

46.   See Police Commr. of Boston v. Municipal Ct. of Dorchester,

374 Mass. 640, 658 (1978) (no valid law enforcement purpose

served by maintaining inaccurate records that have no bearing on

a person's likelihood of reoffending).

      Conclusion.   In all cases governed by G. L. c. 276, § 100C,

sealing a criminal record is the exclusive remedy, and a judge

lacks authority to allow a motion to expunge.    This case falls

into that narrow and exceptional class of cases in which the

person originally charged with the crime was not only factually

innocent, but was never the intended target of law enforcement.

The presence of these factors takes the case outside the scope

of the sealing statute because there is no public policy that

favors the retention of such spurious records.    Accordingly, the

order denying the motion by Alves 1983 to expunge all criminal

records pertaining to criminal docket number 1207CR1074 arising

out of the incident of January 12, 2012, is vacated.     The case

is remanded to the District Court for the entry of an order
                                                               10


allowing the motion.8

                                   So ordered.




     8
       We assume that a certified copy of the court order
directing that the records in question be expunged will be
transmitted to DCJIS. See G. L. c. 6, § 167A. DCJIS has
established a procedure to correct inaccurate criminal offender
record information. See 803 Code Mass. Regs. § 2.25 (2014).
See also G. L. c. 6, § 167 (defining "purge" as "remove from the
criminal record information system such that there is no trace
of information removed and no indication that said information
was removed").
