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Can You Expunge a PJC?

July 29th, 2010
By Jamie Markham

I am sometimes asked if a conviction for which prayer for judgment has been continued (a PJC) can be expunged. It’s a sensible question, given—as I’ll discuss in a moment—that a PJC is treated like a conviction for most purposes in North Carolina. A person has virtually the same incentive to seek expungement of a PJC as he or she does for any other conviction. The general view (at least among the judges and lawyers who have posed the question to me) appears to be that a PJC may not be expunged.

I think there’s a decent argument that at least some PJCs may be expunged.

First, I should clarify which type of expunction I’m talking about. If anything, I think a PJC would fall under G.S. 15A-145 (for expunction of misdemeanor convictions for first-time offenders under age 18), not G.S. 15A-146 (for expunction of dismissed or acquitted charges). Indeed, the crux of the argument for expungeability is that a PJC is a conviction. A judge can only continue prayer for judgment after the defendant’s guilt has been established, and the courts have now held that a guilty verdict—not entry of judgment—is the touchstone of a conviction. See State v. McGee, 175 N.C. App. 586 (2006) (“[U]nder the traditional definition, ‘conviction’ refers to the jury’s or factfinder’s guilty verdict.”). That’s the rationale for why a PJC counts as a conviction for prior record level points, State v. Hatcher, 135 N.C. App. 524 (2000) (as I discussed here). [Note: In 2009, the first version of the bill (H 726) that was eventually passed this year as an act to “clarify expunctions” would have amended G.S. 15A-146 (not -145) to say that the record of a defendant’s charge could be expunged if prayer for judgment was continued in the case—treating the PJC the same as a dismissal or finding of not guilty. By the time the bill reached its third iteration that provision was gone—sensibly, I think, given that a PJC is not like a dismissal or acquittal, and the incongruity between expunging records of a defendant’s charge for a PJC that would certainly be treated as a conviction for future prior record level calculations.]

G.S. 15A-145 refers only to “convictions” (there is no requirement for entry of judgment) and applies to any otherwise eligible person who “pleads guilty to or is guilty of a misdemeanor other than a traffic violation.” It seems to me that if a PJC is a conviction for other purposes, it arguably falls within the conviction language of G.S. 145.

I am not, however, prepared to say that all PJCs can be expunged. There are different kinds of PJCs.

First, if a purported PJC included conditions amounting to punishment, it wasn’t really a PJC at all. As Jessie discussed in this post, almost anything other than a requirement to pay costs (per G.S. 15A-101(4a)) or a general requirement to “obey the law,” State v. Brown, 110 N.C. App. 658 (1993), will convert a PJC into an entered judgment. State v. Popp, 676 S.E.2d 613 (2009). And if the PJC was really an entered judgment, there’s little doubt it can be expunged under G.S. 15A-145 (assuming the petitioner is otherwise eligible).

What about true PJCs, ones with no conditions attached, and for which judgment clearly has not been entered? Even among those there are different types. There is the “dispositional” PJC—one which all parties believe to be the final outcome of the case, entered with the idea that no further sentencing will occur. Then there’s the PJC “from term to term,” entered with the understanding that the state may later pray judgment if the defendant commits a new crime or engages in some other bad behavior. And finally there’s a PJC to allow the judge to obtain additional information needed for sentencing—really a simple continuation of the sentencing hearing itself.

Regarding the final type, it’s pretty clear that those shouldn’t be expunged. It’s unlikely to come up, I think, given that G.S. 15A-145 requires that a person must wait at least two years from the date of conviction before petitioning for an expunction. But even if a judge did need to continue a case for that long, I don’t think G.S. 15A-145 should operate to short-circuit the judge’s discretion. Similarly, when prayer for judgment has been continued from term to term and the state could still reasonably act on it by praying judgment, an expunction would seem improper. Exactly how long the state has to act has been the subject of a few cases in North Carolina, including one just last week. In State v. Craven, the court of appeals determined that a two-year delay was not unreasonable when the defendant consented to the continuation and never requested sentencing. In an earlier case the court said a five-year delay was reasonable when the defendant was not prejudiced by the delay. State v. Lea, 156 N.C. App. 178 (2003).

So the expunction process probably shouldn’t be used to pull the conviction rug out from under the judge or the state when entry of judgment is still possible. If, however, the court entertaining an expunction petition for a defendant who received a PJC is able to determine (a) that neither it (nor any other judge) is still awaiting information for sentencing; and (b) that the PJC was at its inception or has become, on account of a delay that would make entry of judgment unreasonable, dispositional in nature, I think an otherwise eligible conviction for which prayer for judgment has been continued could be expunged under G.S. 15A-145.

There are probably arguments to the contrary that I haven’t thought of, and I hope you’ll raise them in the comments.  If nothing else, the Attorney General has noted in an opinion letter that the expunction statute operates as an exception to the general prohibition against alteration of records, and should thus be strictly construed. That same letter, though, notes that the expunction statute is remedial in nature and should thus be subject to a rule of liberal construction.

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26 Responses to “Can You Expunge a PJC?”

  1. Prosecutor says:

    As far as expunction goes, does anyone know if an expunction actually removes all records of the case? Is the entry removed from the criminal histories generated by DCI / NCIC or ACIS (AOC’s computerized records system)? If someone is only allowed one expungement in their lifetime, and all evidence of a prior expungement is removed, how is anyone going to know how many times a person has received an expungement?

  2. RSP says:

    AOC retains a confidential list of all cases that have been expunged so before an expunction can be granted the D’s name is supposedly checked against that list.

  3. jesse c says:

    so does this include felony pjc’s without any conditions?

  4. john g c says:

    what about felony pjc’s?

  5. Jamie Markham says:

    jesse c and john g: No, I don’t think so. Felony convictions can never be expunged under G.S. 15A-145, and to the extent that my analysis hinges on the fact that a PJC is a conviction, the rule would be the same for felony PJCs as for any other felony conviction.

  6. J C says:

    Could you speak to how a pjc can affect the tolling process for probation cases. Should a probation case remain in tolled status for the duration of a continued pjc or should it become untolled based on the idea that upon finding of pjc that guilt has been established. This seems tricky in a situation where a pjc is entered based upon performing some type behavior or task and leaves lots of questions for officers to determine the courts intent.

  7. Jamie Markham says:

    J C: I don’t think a probation case should remain in tolled status during a period in which prayer for judgment has been continued in a subsequent case. I think the finding of guilt — be it by plea or jury verdict — is a probably resolution of the “charge” (if not a final resolution of the case) within the language of G.S. 15A-1344(g) [the tolling statute], even if the defendant hasn’t yet been sentenced.

    As to your second point, recall that a purported PJC that requires the defendant to do something beyond paying costs or obeying the law is probably not a PJC at all. A PJC with conditions that amount to punishment is converted into an entered judgment. See State v. Popp, discussed by Jessie Smith here: http://sogweb.sog.unc.edu/blogs/ncclaw/?p=377.

  8. I used to practice in NC, but didn’t do expungement work until I moved to Florida. I’m interested – in NC can you not expunge any felonies? Florida doesn’t make the distinction between felonies and misdemeanors. I wrote an article, (can be found on Ezine) or here, about felony expungement in Florida, if you are interested.

  9. Defender says:

    Felonies in NC cannot be expunged from a person’s record, nor can any misd. of which the person was convicted if they were 18 y.o. or older. under NC’s expungement statute.

  10. Wow, that’s pretty tough. Florida essentially gives you a “free pass” to seal or expunge one criminal event, misdemeanor or felony. There are delineated offenses, however, that can never be sealed, which are mainly sex crimes, DUI, and other aggravated offenses. I’m going to have to look at the NC statutes – would make an interesting comparison article I think! I’m not sure if anyone on here is interested in learning about Florida expungement, but if so, you can read about the complete process in this article Thanks for the answer.

  11. Defender says:

    Jamie,

    Would you consider CAC attorney fee and the $50.00 CAC fee to be part of the court costs? In our district judges require indigents to pay CAC fees as part of a PJC. If CAC fees are not part of court costs, then indigents are essentially excluded from the benefits of a PJC due to their economic status.

  12. Jamie Markham says:

    Defender: State v. Webb, 358 N.C. 92 (2004), indicates that these “fees” are costs.

  13. John says:

    What about very old pjcs for minor misdemeanors showing up as convictions on employment background checks. For instance, a PJC entered in a resist public officer case in 2001 at age of 18 is now showing up as a conviction in county-level check and on third-party searches. Court has destroyed all records except the “guilty” line on the background check. Is there any recourse for clearing these inaccurate records up? Any options for expunction?

    • Lea says:

      This is what I am interested in knowing as well! Please help! I was caught with a roach on my 18th Birthday, also in 2001 and was given a PJC. I did have to pay indigent court costs of like 200 bucks or so. However, I am now 27, have since served in the military, and am a full time college student. The pjc is showing up as a conviction at the county courthouse and 3rd party checks. It recently prevented me from admission to a surgery tech program. Am wondering if expunction is an option? PLEASSSEEEEE HELLLPPP!

      • Bailey says:

        I was wondering the same thing. In 2009, I received a PJC for misdemeanor Medicaid Fraud and was told this was not going on my record and it would not hinder me from getting my certifications. Recently, I graduated from college and when I applied for teaching positions, my application was denied due to the PJC showing up on my record. In this economy, it is already tough to find jobs, especially when you have children.

        Please someone explain if this could be expunged. Also, why does North Carolina offer PJC’s if it cannot be expunged and if it goes on the person records?? This does not seem right at all. In ALL other states that offer PJC’s, it DOEs NOT go on your record. It is like getting a second chance to do what is right; however, North Carolina is saying it is for life.

  14. Tara says:

    I received a PJC for domestic trespassing can this be expunged from my criminal record?

  15. nicefriend says:

    I believe that a person can and should be able to receive an expungement under the North Carolina General Statute 15A-145. This statute covers expungements for persons who have been convicted of a misdemeanor as a first offender and under the age of 18. While the statute does not specifically have any mention of a PJC, the argument hinges on the fact that the North Carolina Court System treats a PJC like a conviction for most purposes and that should also include expungements.

  16. bryan says:

    I used a PJC for Two charges in 2009. I was 20 and i was told that they would after 2 or 3 years become dismissed. I plead no contest and then the PJC was entered, But after the time is up and the charges become dismissed will this show up on my record as a conviction or what? I was told that i could mark NO on jod app’s if asked “Have you ever been convicted of a crime?” but i am now starting to see job app’s that say “have you ever been convicted of a crime?including a plea,verdict, and finding or guilt”. I’m not sure what to wrtie. In that case should I still mark yes or No.

  17. Marcus K says:

    Hi, so basically I have a gun charge from two years ago which was PJCed. It was,my first and only charge ever, and the gun was registered in my name. Are you saying I’m stuck with that charge for life??

  18. Travis D says:

    I entered into a PJC in 2001 for domestic communicating threats. I was not guilty but it was the easy way out! I was not informed at the time that I would not be able to obtain a pistol permit! I was told that I may be able to go back to court and have this dismissed. Is this true? What all is involved in it?

  19. Jason Witt says:

    The number of expungement calls to my office has tripled since the recession as employers have become more selective. Clients are often misled into taking a Prayer for Judgment Continued (PJC) by a lawyer who tells them it will not show on their record. That is NOT true as PJC’s do appear on a criminal history search and most employers treat them like convictions because the only way to get a PJC is to plead guilty or to be found guilty.

    Making matters worse a PJC generally can’t be expunged. So what can be done? Well- most PJC’s given are for low-level misdemeanor crimes in District Court. This means you often can:

    1) Go back to Court
    2) Pray for Judgment
    3) Give notice of appeal to Superior Court or already have a dismissal worked out with the DA.
    4) Get the case dismissed.
    5) Then expunge the charge/s.

    Although more complicated (may require a lawyer) than a simple expungement this strategy usually works. You can check out some of the new NC Expungement Statutes that allow for expungement of guilty pleas for adults that did not exist a few years ago.

  20. Jason Witt says:

    Sorry about the broken link above. Correct link for NC Expungement Statutes

  21. Dawn says:

    It’s my understanding of the law that a person would have to be convicted of the misdemeanor prior to their 18th birthday in order to receive expunction, although I have been told by the AOC that the time of conviction is not pertinent in this case, it is the time of the offense. I’m asking regarding a case in which a person is now 25 years of age, was 18 at the time they received a PFJC, is now wanting an expunction and if we pray judgment, they’re conviction date will obviously be past their 18th birthday and make them ineligible at that point unless we would receive a dismissal once appealed to Superior Court. Any direction in clarification would be helpful…

  22. Donna Pilch says:

    In the Wake County Court, there are thousands of illegal judgments because they don’t hold probable cause hearings before jury trials and convictions. Please see home page of http://carolinacrimereport.com and scrolll down to the story on NC Criminal enterprise.

  23. John M. Donadio says:

    Please, help me. Can I get a Class 1-A Misdemeanor Stalking charge expunged if I had a trial, resulting in a Hung Jury, and then to avoid the continuation of my case after 33 months & 17 court appearances, or a new trial, agreed to a PJC. Am I automatically considered guilty with a PJC? I had just written a lengthier message, but the computer shut down before I could complete it. There is video by an Investigator proving my innocense, but in Catawba County, this does not matter. A parent accused me of stalking his son when I found out that he is transporting drugs and underage girls to a back entrance of a local bar. He has 2 previous related arrests. I taught for 32 years. Why would I wait that long before doing something so stupid? I am innocent, as my God knows.

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