The process to seal a felony  

Sometimes good people find themselves in bad situations that can have far-reaching consequences. However, new criminal justice reform in Massachusetts means that many people can put their past behind them and “seal” a criminal record for a fresh start. The purpose of the record-sealing provisions is to promote access to employment, housing, and other opportunities that are necessary for the rehabilitation of defendants and to protect the privacy of individuals.

If you are convicted of a felony, with the exception of murder, manslaughter, and level two and three sex offenses, it can be sealed in seven years. The clock to seal begins at release from incarceration or custody, or from the end of any probation period, not at the time of sentencing. While sealing does not destroy the record altogether, it does keep your criminal offender record information (CORI) out of the hands of employers, landlords, and the general public. The information will not be accessible, so for all practical purposes, the negative effects of the felony will not hold you back from accomplishing milestones and moving forward with your life.

The process for sealing a criminal case in court is free, to seal your cases you need to file documents in the same court that handled your criminal case. It is important to have an attorney aid you in this process. First, you will need a petition to seal form that you can get online or directly from the court. Then you will need a motion to seal, which is usually a two-step process. An affidavit, explaining how your criminal record harms you and why the judge should seal your record and support letter from professionals or others that attest to your positive reputation and explain how your CORI hurts you and holds you back from accomplishments. Rejection letters from employers are helpful if the reason for rejection was your CORI. This shows “good cause,” for sealing your record. The judge can consider lost job opportunities along with proof of your rehabilitation, or efforts to stay sober. You can also show that you have trouble volunteering or attaining government assistance. In the past, the sealing statute permitted a judge to seal a criminal record only when “substantial justice would be served” by sealing the record. However, in 2014, the Supreme Judicial Court lowered this standard and held that a petitioner need only establish that “good cause” exists for sealing. Commonwealth v. Pon, 469 Mass. 296, 297 (2014).

The court can use either a two-step or one-step hearing process. If a two-step hearing is used, the judge will decide whether it is likely the petitioner’s case will be sealed based on the circumstances. If the judge finds that the petitioner has made a case, a second hearing is scheduled where a judge will decide whether or not to seal the record. Notice of the second hearing will be posted in a public place in or near the clerk’s office. 

If the court uses a one-step hearing process, the clerk’s office will post notice of the hearing and the petitioner should appear at the hearing, which will be the only hearing where the judge will decide whether or not to seal the record. 

If you have a felony charge but were not convicted, and your case resulted in a “not guilty,” dismissal, nolle prosequi, or dismissal after completing the terms of your CWOF, you may petition the court to seal your record, even if it has been less than seven years since your felony case. There is no “waiting period” to start this process, so long as the dismissal has been entered. This process usually requires at least two court appearances by an attorney, and you will usually be required to attend the final hearing.

The statute that governs sealing is Mass. Gen. Laws Ann. ch. 276, § 100A (West).

Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal the file. The commissioner shall comply with the request provided that: (1) the person’s court appearance and court disposition records, including any period of incarceration or custody for any misdemeanor record to be sealed occurred not less than 3 years before the request;

(2) the person’s court appearance and court disposition records, including any period of incarceration or custody for any felony record to be sealed occurred not less than 7 years before the request;

(3) the person had not been found guilty of any criminal offense within the commonwealth in the case of a misdemeanor, 3 years before the request, and in the case of a felony, 7 years before request, except motor vehicle offenses in which the penalty does not exceed a fine of $50;

(4) the form includes a statement by the petitioner that he has not been convicted of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses, as aforesaid, and has not been imprisoned in any state or county in the case of a misdemeanor, within the preceding 3 years, and in the case of a felony, within the preceding 7 years; and;

(5) the person’s record does not include convictions of offenses other than those to which this section applies. This section shall apply to court appearances and dispositions of all offenses; provided, however, that this section shall not apply in case of convictions for violations of sections 121 to 131H, inclusive, of chapter 140 or for violations of chapter 268 or chapter 268A, except for convictions for resisting arrest.

 

In carrying out the provisions of this section, notwithstanding any laws to the contrary:

1. Any recorded offense which was a felony when committed and has since become a misdemeanor shall be treated as a misdemeanor.
2. Any recorded offense which is no longer a crime shall be eligible for sealing forthwith, except in cases where the elements of the offense continue to be a crime under a different designation.
3. In determining the period for eligibility, any subsequently recorded offenses for which the dispositions are “not guilty”, “dismissed for want of prosecution”, “dismissed at request of complainant”, “nol prossed”, or “no bill” shall not be held to interrupt the running of the required period for eligibility.
4. If it cannot be ascertained that a recorded offense was a felony when committed said offense shall be treated as a misdemeanor.
5. Any violation of section 7 of chapter 209Aor section 9 of chapter 258Eshall be treated as a felony.
6. Sex offenses, as defined in section 178C of chapter 6, shall not be eligible for sealing for 15 years following their disposition, including termination of supervision, probation or any period of incarceration, or for so long as the offender is under a duty to register in the commonwealth or in any other state where the offender resides or would be under such a duty if residing in the commonwealth, whichever is longer; provided, however, that any sex offender who has at any time been classified as a level 2 or level 3 sex offender, pursuant to section 178K of chapter 6, shall not be eligible for sealing of sex offenses.

For more information about the process to seal a felony, follow Attorney DelSignore on Facebook