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-77
COMMONWEALTH
vs.
JENNIFER R. GRAYSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant, Jennifer R. Grayson, appeals from the order,
issued without a hearing, of a District Court judge denying
Grayson's petition to seal her criminal records. Because we
find no abuse of discretion, we affirm.
Background. In 2018, Grayson was charged in the District
Court with (1) operating under the influence of drugs (OUI), (2)
negligent operation of a motor vehicle, (3) possession of a
class B substance, and (4) two civil motor vehicle infractions
(first case). In 2020, she admitted to sufficient facts for a
finding of guilty as to the OUI and drug possession charges. A
judge continued both charges without findings for one year; the
Commonwealth entered a nolle prosequi on the negligent operation
charge. 1 It appears that both charges were ultimately dismissed
in March 2021. In a separate District Court case, Grayson was
charged in 2019 with operating with a suspended license (second
case). 2 In October 2021, in the second case, Grayson pleaded
guilty to the criminal charge and the judge imposed a ten-day
sentence suspended for six months. Grayson's probation in the
second case was terminated in April 2022.
In the fall of 2022, relying on G. L. c. 276, § 100C,
Grayson petitioned a judge of the District Court to seal the
record of each of the criminal charges in the first and second
cases. The judge concluded that Grayson failed to show a prima
facie case in favor of sealing, and so denied her petition
without a hearing. 3 Grayson appealed. Because we discern no
abuse of discretion in the judge's ruling, we affirm. 4
Discussion. General Laws c. 276, § 100C, mandates the
sealing of the records of "any criminal case wherein the
defendant has been found not guilty by the court or jury, or a
no bill has been returned by the grand jury, or a finding of no
1 The judge found Grayson not responsible for the two civil
infractions.
2 She was also cited for two civil motor vehicle infractions.
She was found not responsible for each of them.
3 This was Grayson's second unsuccessful attempt to seal the
records of the first case. Her first petition, filed in 2021,
had also been denied.
4 In reaching this conclusion, we assume without deciding that
Grayson has supported her argument as required by Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019).
2
probable cause has been made by the court," 5 G. L. c. 276,
§ 100C, first para., and grants to judges the discretion to seal
the records "[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." 6 G. L. c. 276, § 100C, second para. See Commonwealth
v. Pon, 469 Mass. 296, 321 (2014).
A defendant petitioning to seal a record pursuant to G. L.
c. 276, § 100C, second para., must "set[] forth facts that
demonstrate good cause" for the request. Pon, 469 Mass. at 322.
In assessing "good cause" for the purposes of § 100C, second
para., judges must balance the government's interest in the
public's "right to know" with the defendant's interest in
privacy. See id. at 314-315.
"At a minimum, judges should evaluate 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."
5 The defendant may override this mandate, however, by "'mak[ing]
a written request to the commissioner' not to seal the records
of the proceedings." Commonwealth v. J.F., 491 Mass. 824, 840
(2023), quoting G. L. c. 276, § 100C, first par.
6 General Laws c. 276, § 100C, does not provide for the sealing
of records of guilty findings. Compare G. L. c. 276, § 100A.
3
Id. at 316. Notably, "a judge may determine on the pleadings
whether a prima facie showing [of good cause] has been made."
Id. at 322. Where, as here, a petitioning defendant fails to
make this preliminary showing, she is not entitled to a hearing
on the merits of the petition. See id. at 321-322.
Here, we discern no abuse of discretion in the judge's
conclusion that Grayson's petition and supporting papers should
be summarily dismissed because they failed to make the required
prima facie case for sealing the records of the criminal charges
in the first and second cases. Addressing the two cases out of
order, we first note that the only disposition at issue in the
second case was a guilty finding on the suspended license
charge. Where nothing in § 100C contemplates the sealing of
guilty findings, Grayson's petition necessarily failed to make
out a prima facia showing of her entitlement to sealing of that
record. See Commonwealth v. Perez Narvaez, 490 Mass. 807, 809
(2022), quoting Cavanagh v. Cavanagh, 490 Mass. 398, 405 (2022)
("In interpreting the meaning of a statute, we look first to the
plain statutory language"); Commonwealth v. McLeod, 437 Mass.
286, 294 (2002) (court "will not add words to a statute that the
Legislature did not put there").
As to the two charges in the first case to which Grayson
admitted sufficient facts, we discern no abuse of discretion in
the judge's determination that Grayson failed to make a prima
4
facie case for sealing them. See Pon, 469 Mass. at 316.
Neither Grayson's statement under oath in the body of the
petition nor the letters attached to her petition provided
adequate detail to permit the judge to identify or evaluate any
"particular disadvantages" to Grayson arising from the
availability of the criminal record. Contrast id. at 319-321.
Absent a prima facie showing in favor of sealing the record of
the second case, the judge was not required to hold a hearing on
Grayson's petition and acted within her discretion in denying
Grayson's request for sealing of the challenged records. See
id. at 322 & n.38-40.
Order denying petition to
seal records affirmed.
By the Court (Hand,
Hershfang & Brennan, JJ. 7),
Assistant Clerk
Entered: January 31, 2024.
7 The panelists are listed in order of seniority.
5