Expungement / Record Sealing Petition and Eligibility Memo — Massachusetts

Expungement / Record Sealing Petition and Eligibility Memo (MASSACHUSETTS)

Quick-Reference Summary

PART A — ELIGIBILITY MEMO

MEMORANDUM

TO: [CLIENT]
FROM: [ATTORNEY]
DATE: [__/__/____]
RE: Eligibility for Sealing or Expungement of Massachusetts Criminal Record
PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / WORK PRODUCT

I. Executive Summary

Massachusetts offers three independent post-disposition remedies that may shield or eliminate a criminal record: (i) administrative sealing under G.L. c. 276 § 100A; (ii) discretionary sealing of dismissals, nolle prosequi, and CWOF dispositions under § 100C; and (iii) expungement under §§ 100F–100K (added by the 2018 Criminal Justice Reform Act). Sealing renders the record invisible to most private inquiries but leaves it intact for law-enforcement, court, and DCF purposes; expungement permanently destroys the record. Eligibility depends on (a) offense category and code, (b) elapsed time from the later of guilty finding or release from custody, (c) absence of disqualifying intervening conduct, and (d) for expungement, the applicant's age at the time of offense and the absence of any of the broad statutory exclusions (OUI, firearms, sex offenses, A&B household member, § 209A/§ 258E violations, dangerous-weapon offenses, offenses involving death or serious bodily injury, and offenses against elderly or disabled victims).

II. Governing Law

1. G.L. c. 276, § 100A — administrative sealing of conviction records by Commissioner of Probation. Misdemeanors: 3-year wait. Felonies (including § 209A and § 258E violations): 7-year wait. Sex offenses: 15-year wait (never if Level 2 or 3 classification). Subsequent dispositions of "not guilty," "dismissed for want of prosecution," "dismissed at request of complainant," "nol prossed," or "no bill" do not interrupt the running of the waiting period.
2. G.L. c. 276, § 100C — court-ordered sealing of dismissals, nolle prosequi, and CWOF. Governed by Commonwealth v. Pon, 469 Mass. 296 (2014).
3. G.L. c. 276, §§ 100E–100U — expungement framework added by St. 2018, c. 69.
4. G.L. c. 276, § 100F — "time-limited" expungement: offense before applicant's 21st birthday; felonies > 7 years old / misdemeanors > 3 years old; no more than two separate criminal cases on record.
5. G.L. c. 276, § 100K — "discretionary" expungement: false identification; court/clerk error; offense no longer a crime; demonstrable fraud.
6. G.L. c. 276, § 100N — expungement procedure (hearing, notice, factors).
7. Commonwealth v. Pon, 469 Mass. 296 (2014) — sealing of non-conviction records requires showing of "good cause" balancing disadvantages of the record against public's right to access.

III. Administrative Sealing (§ 100A) — Eligibility Checklist

PRACTICE NOTE: Confirm release-from-custody date on the CORI before calculating the running of the 3-/7-year period. If the client was committed to a House of Correction or DOC, the clock starts on the later of guilty finding OR release from incarceration. Probation/parole/supervised release do NOT extend the clock for § 100A purposes.

IV. Discretionary Sealing (§ 100C) — Pon Standard

For dismissals, nolle prosequi, and CWOF (continuance without a finding) dispositions, the court applies the multifactor Pon analysis. The petitioner must make a prima facie showing of good cause; if made, the court holds a hearing. Public notice is provided through courthouse postings. The Commonwealth may object.

Pon factors (469 Mass. at 316):

(a) Disadvantages arising from the criminal record's availability;
(b) Evidence of rehabilitation;
(c) Other evidence that sealing would mitigate the disadvantages;
(d) Circumstances at the time of the offense affecting recidivism risk;
(e) Passage of time since the offense and its dismissal or nolle prosequi;
(f) The nature and reasons for the case's disposition.

PRACTICE NOTE: Attach a memorandum to the § 100C petition addressing each Pon factor, the client's affidavit, letters of support documenting rehabilitation, and proof of substance-abuse or mental-health treatment completion where relevant.

V. Time-Limited Expungement (§ 100F) — Eligibility Checklist

A person may petition for time-limited expungement if all of the following are satisfied:

(i) Age: The offense was committed before the applicant's 21st birthday;
(ii) Limited record: The applicant has no more than two (2) separate criminal cases on record (multiple offenses from the same incident count as one);
(iii) Elapsed time: At least 7 years has passed since disposition of a felony, or 3 years since disposition of a misdemeanor;
(iv) No disqualifying offense category (see Part A § VII below);
(v) No serious bodily injury or death resulting from the offense;
(vi) No dangerous weapon possessed during the offense;
(vii) No elderly or disabled victim;
(viii) Not a sex offense, OUI, firearms violation, A&B on household member, or § 209A / § 258E violation.

VI. Discretionary Expungement (§ 100K) — Eligibility Categories

A person may petition for discretionary expungement, regardless of age at offense or elapsed time, where the record was created as a result of:

(a) False identification (the offense was committed by someone using applicant's identity);
(b) Demonstrable fraud upon the court;
(c) Court or clerk error;
(d) Offense subsequently determined not to be a crime under Massachusetts law.

VII. Expungement — Statutory Exclusions (Apply to BOTH § 100F and § 100K)

Per § 100J, NO expungement (time-limited or discretionary) is available for:

(1) Operating Under the Influence of liquor or drugs (OUI);
(2) Any firearms offense or unlawful sale of a firearm;
(3) Any sex offense (whether or not involving a child) or sexually violent offense;
(4) Assault and battery on a household member (G.L. c. 265, § 13M);
(5) Violations of restraining orders (§ 209A) or harassment-prevention orders (§ 258E);
(6) Any offense that resulted in death or serious bodily injury or was committed with the intent to cause death or serious bodily injury;
(7) Any offense committed while in possession of a dangerous weapon;
(8) Any offense where an elderly or disabled person was the alleged victim.

PRACTICE NOTE: The § 100K discretionary basis ("offense no longer a crime") is the only way to expunge an OUI conviction — and only if the underlying conduct has been decriminalized, which it has not for OUI. In practice, OUI is effectively unexpungeable; clients should be counseled to pursue § 100A sealing after the 7-year wait.

VIII. Procedure (§ 100N — Hearing)

The court must hold a hearing on every expungement petition unless waived in writing by the petitioner and prosecutor. At the hearing, the court considers:

(a) Whether the petitioner has demonstrated eligibility;
(b) The best interests of justice;
(c) Public safety;
(d) Any objection from the District Attorney or Attorney General.

The court must issue written findings.

IX. Strategic Recommendation

[ATTORNEY MUST CUSTOMIZE — sample language follows.]

Based on the CORI review dated [__/__/____], the applicant's circumstances support the following sequenced approach:

1. [First] Administrative sealing under § 100A for the [misdemeanor / felony] conviction(s) dated [__/__/____] (the 3-/7-year waiting period has elapsed; no statutory disqualifier applies);
2. [Second] Discretionary sealing under § 100C for the [dismissal / nolle prosequi / CWOF disposition] dated [__/__/____] (good cause established under Pon);
3. [Third] Time-limited expungement under § 100F for [eligible juvenile/young-adult offense] (offense pre-dates applicant's 21st birthday; no statutory exclusion applies; record limited to ≤ 2 cases);
4. [OR] Discretionary expungement under § 100K for [false-ID / fraud / clerk-error / no-longer-a-crime offense].

PART B — PETITION TEMPLATES

B.1 — Petition to Seal Conviction Records (G.L. c. 276 § 100A)

Filed with: Office of the Commissioner of Probation, One Ashburton Place, Boston, MA 02108

COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS PROBATION SERVICE
OFFICE OF THE COMMISSIONER OF PROBATION

PETITION TO SEAL CONVICTION RECORDS PURSUANT TO G.L. c. 276, § 100A

The petitioner respectfully states:

1. Petitioner was found guilty of the offense(s) listed below in the court(s) named below.

2. Conviction(s) sought to be sealed:

3. Eligibility:

☐ Each conviction sought to be sealed is a misdemeanor and at least three (3) years have passed since the later of the guilty finding or completion of any sentence of incarceration; OR

☐ Each conviction sought to be sealed is a felony and at least seven (7) years have passed since the later of the guilty finding or completion of any sentence of incarceration; OR

☐ The conviction is for conduct that is no longer a crime under Massachusetts law.

4. Petitioner has had no convictions in any state or federal court within the applicable waiting period other than dispositions of "not guilty," "dismissed for want of prosecution," "dismissed at request of complainant," "nol prossed," or "no bill" (which do not interrupt the running of the waiting period under § 100A).

5. None of the offenses sought to be sealed is a sex offense as defined in G.L. c. 6, § 178C for which the 15-year waiting period has not yet elapsed, and petitioner has never been classified as a Level 2 or Level 3 sex offender.

WHEREFORE, petitioner respectfully requests that the Commissioner of Probation seal the above records.

Signed under the pains and penalties of perjury this ____ day of __________, 20____.

Signature: _________________________________
[PRINTED NAME]

B.2 — Petition to Seal Non-Conviction Records (G.L. c. 276 § 100C)

COMMONWEALTH OF MASSACHUSETTS

PETITION TO SEAL CRIMINAL RECORDS PURSUANT TO G.L. c. 276, § 100C

The petitioner, [PETITIONER NAME], respectfully petitions this Honorable Court to seal the records of the above-captioned criminal case pursuant to G.L. c. 276, § 100C, and in support states:

I. Identifying Information

1. Petitioner's full legal name: [NAME]
2. Date of birth: [__/__/____]
3. Address: [ADDRESS]
4. Docket number: [DOCKET]
5. Offense(s) charged: [OFFENSE / G.L. CITATION]
6. Date of disposition: [__/__/____]
7. Disposition: ☐ Dismissed ☐ Nolle prosequi ☐ Continued without a finding (CWOF)

II. Statutory Eligibility

8. The disposition of the above-captioned case is one of the categories made eligible for discretionary sealing under G.L. c. 276, § 100C: dismissal, nolle prosequi, or continuance without a finding.

III. Good Cause Under Pon

9. Pursuant to Commonwealth v. Pon, 469 Mass. 296 (2014), petitioner has good cause to seal these records because:

(a) Disadvantages from availability of the record: [DESCRIBE EMPLOYMENT, HOUSING, LICENSING, IMMIGRATION, EDUCATIONAL, OR SOCIAL DISADVANTAGES THE OPEN RECORD HAS CAUSED OR WILL CAUSE.];

(b) Evidence of rehabilitation: [DESCRIBE EMPLOYMENT, EDUCATION, TREATMENT COMPLETION, COMMUNITY SERVICE, OR OTHER REHABILITATIVE EVIDENCE.];

(c) Mitigation of disadvantages by sealing: [EXPLAIN HOW SEALING WOULD REMOVE BARRIERS.];

(d) Circumstances at the time of the offense: [DESCRIBE CIRCUMSTANCES THAT AFFECT RECIDIVISM ANALYSIS — e.g., AGE, SUBSTANCE USE NOW IN REMISSION, MENTAL-HEALTH ISSUE NOW STABILIZED.];

(e) Passage of time: [STATE NUMBER OF YEARS SINCE DISPOSITION.] years have passed since the disposition;

(f) Nature and reasons for the disposition: [SUMMARIZE WHY THE CASE WAS DISMISSED / NOL PROSSED / CWOF'D — e.g., INSUFFICIENT EVIDENCE, COMPLETION OF DIVERSION, MISIDENTIFICATION.].

IV. Supporting Documents

10. The following are attached:
    - ☐ Petitioner's sworn affidavit
    - ☐ Letters of support
    - ☐ Proof of treatment completion (if applicable)
    - ☐ Proof of employment / education
    - ☐ CORI report

WHEREFORE, petitioner respectfully requests that this Honorable Court:

(a) Schedule a hearing pursuant to § 100C and Pon;
(b) Find good cause for sealing;
(c) Order that the records of the above-captioned case be sealed by the clerk, probation department, and Commissioner of Probation; and
(d) Grant such further relief as is just.

Respectfully submitted,

_________________________________
[ATTORNEY NAME], BBO # [____]
[FIRM]
[ADDRESS]
[PHONE / EMAIL]
Counsel for Petitioner

Date: [__/__/____]

B.3 — Petition to Expunge Records (G.L. c. 276 §§ 100F or 100K)

COMMONWEALTH OF MASSACHUSETTS

PETITION TO EXPUNGE CRIMINAL RECORD PURSUANT TO G.L. c. 276, § [100F / 100K]

Petitioner, [PETITIONER NAME], pursuant to G.L. c. 276, §§ 100E–100U, hereby petitions this Honorable Court to expunge the criminal record identified below.

I. Petitioner Information

1. Name: [NAME]
2. DOB: [__/__/____]
3. Address: [ADDRESS]
4. Last 4 of SSN: [____]

II. Case to Be Expunged

5. Docket no.: [DOCKET]
6. Offense(s): [OFFENSE / G.L. CITATION]
7. Date of offense: [__/__/____]
8. Petitioner's age at time of offense: [____]
9. Date of disposition: [__/__/____]
10. Disposition: [DESCRIBE]

III. Statutory Basis for Expungement

[Select applicable basis(es):]

☐ § 100F (Time-Limited Expungement) — Petitioner avers:
(i) The offense was committed before petitioner's 21st birthday;
(ii) Petitioner has no more than two (2) separate criminal cases on record;
(iii) ☐ More than 7 years have passed since disposition of a felony OR ☐ more than 3 years have passed since disposition of a misdemeanor;
(iv) The offense is NOT excluded under § 100J (no OUI, firearms, sex offense, A&B household member, § 209A/§ 258E violation, offense involving death or serious bodily injury, dangerous-weapon offense, or offense against an elderly or disabled victim).

☐ § 100K (Discretionary Expungement) — Petitioner avers the record was created as a result of:
☐ False identification (offense committed by another using petitioner's identity);
☐ Demonstrable fraud upon the court;
☐ Court or clerk error;
☐ Conduct that is no longer a crime under Massachusetts law.

IV. Factual Basis

11. [PROVIDE A DETAILED NARRATIVE OF THE FACTS SUPPORTING THE PETITION, INCLUDING WHY EXPUNGEMENT (RATHER THAN SEALING) IS APPROPRIATE AND WHY EACH STATUTORY ELEMENT IS SATISFIED.]

V. Best Interests of Justice (§ 100N)

12. Expungement is in the best interests of justice because:

(a) [REHABILITATION / ABSENCE OF FURTHER CRIMINAL CONDUCT];
(b) [CONCRETE COLLATERAL CONSEQUENCES OF THE OPEN RECORD];
(c) [LIMITED PUBLIC-SAFETY INTEREST IN PRESERVATION OF THE RECORD];
(d) [PASSAGE OF TIME AND DEMONSTRATED LAW-ABIDING CONDUCT].

VI. Notice

13. A copy of this petition has been served on:
    - District Attorney for [COUNTY]
    - Office of the Commissioner of Probation
    - [ARRESTING LAW-ENFORCEMENT AGENCY]

WHEREFORE, petitioner respectfully requests that this Honorable Court:

(a) Hold a hearing pursuant to G.L. c. 276, § 100N;
(b) Find petitioner eligible for expungement under § [100F / 100K];
(c) Order the permanent expungement of all court, criminal-justice-agency, and other state/municipal/county records relating to the above-captioned case, as defined in § 100E;
(d) Grant such further relief as is just.

Respectfully submitted,

_________________________________
[ATTORNEY NAME], BBO # [____]
[FIRM]
[ADDRESS]
[PHONE / EMAIL]
Counsel for Petitioner

Date: [__/__/____]

PART C — FILING CHECKLIST

C.1 — Pre-Filing Diligence

☐ Obtain certified CORI report (mass.gov/cori) and review for ALL Massachusetts cases
☐ Identify each offense by G.L. citation and confirm misdemeanor vs. felony classification
☐ Confirm dates of disposition AND release from custody (if any) for each case
☐ Calculate waiting periods from the LATER of guilty finding OR release
☐ Confirm no Level 2 or Level 3 sex-offender classification
☐ Cross-check each offense against § 100J expungement exclusions
☐ Confirm applicant has ≤ 2 separate criminal cases (for § 100F expungement)
☐ Confirm applicant's age at time of each offense (for § 100F)
☐ Pull court papers for any dismissal/nolle/CWOF to be sealed under § 100C
☐ Identify all out-of-state and federal convictions (do not interrupt § 100A waiting period but may affect § 100C analysis)

C.2 — Document Assembly

☐ Sealing petition (§ 100A, § 100C) or expungement petition (§ 100F, § 100K)
☐ Client affidavit
☐ Letters of support (3–5 recommended for § 100C and expungement)
☐ Proof of rehabilitation (employment records, education, treatment completion certificates)
☐ Proof of restitution paid in full (if ordered)
☐ Memorandum addressing Pon factors (§ 100C) or § 100N best-interests factors (expungement)
☐ Copy of CORI
☐ Proposed order

C.3 — Filing

☐ § 100A: File with MA Probation Service, One Ashburton Place, Boston (no fee)
☐ § 100C: File in court of original jurisdiction (no fee)
☐ § 100F / § 100K: File in court of original jurisdiction (no fee)
☐ Serve DA's office for the county of conviction
☐ Serve arresting law-enforcement agency
☐ Serve Office of the Commissioner of Probation
☐ Verify service with certificate of service

C.4 — Post-Filing

☐ Calendar 30-day Commonwealth objection window
☐ Prepare for hearing (§ 100C, § 100F, § 100K — hearing required absent waiver)
☐ Bring CORI, affidavit, and supporting documents to hearing
☐ Be prepared to address Pon factors (sealing) or best-interests-of-justice factors (expungement)
☐ Upon order: confirm Commissioner of Probation seals/expunges; confirm clerk seals/expunges court file
☐ Provide certified copy of order to client
☐ Advise client they may answer "no record" on employment, housing, and licensing applications (per § 100A boilerplate)

C.5 — Post-Sealing Client Counseling

☐ Advise that sealed records remain accessible to: law enforcement; courts (for sentencing in future cases); DCF; federal agencies; military recruiters; immigration authorities
☐ Advise that immigration applications may still require disclosure
☐ Advise that private background-check companies may retain pre-sealing records and should be sent the sealing order
☐ Advise that licensing boards may still consider sealed records in disciplinary proceedings (per Doe v. Bd. of Registration in Med., 485 Mass. 554 (2020))
☐ Provide client with certified copies of court documents BEFORE sealing if immigration disclosure is anticipated

SOURCES AND REFERENCES

• G.L. c. 276, § 100A (administrative sealing): https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter276/Section100A
• G.L. c. 276, § 100C (discretionary sealing): https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter276/Section100C
• G.L. c. 276, §§ 100E–100U (expungement framework): https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter276
• Mass.gov, "Find out if you can seal your criminal record": https://www.mass.gov/info-details/find-out-if-you-can-seal-your-criminal-record
• Mass.gov, "Find out if you can expunge your criminal record": https://www.mass.gov/info-details/find-out-if-you-can-expunge-your-criminal-record
• Commonwealth v. Pon, 469 Mass. 296 (2014): https://masscases.com/cases/sjc/469/469mass296.html
• Doe v. Bd. of Registration in Med., 485 Mass. 554 (2020): https://law.justia.com/cases/massachusetts/supreme-court/2020/sjc-12817.html
• St. 2018, c. 69 (Criminal Justice Reform Act): https://malegislature.gov/Laws/SessionLaws/Acts/2018/Chapter69
• Boston Bar Journal, "Sealing State Criminal Records: A Practitioner's Guide": https://bostonbar.org/journal/sealing-state-criminal-records-a-practitioners-guide/
• Mass. Probation Service forms: https://www.mass.gov/forms-related-to-sealing-criminal-records
• Greater Boston Legal Services, "Know Your CORI Rights": https://www.gbls.org/sites/default/files/2019-04/know-your-cori-rights-041819.pdf