A short opinion issued recently by the Court of Appeals, State v. J.C., ___ N.C. App. ___ (Sept. 19, 2017), concerns two open questions about appellate review of a trial judge’s expunction decision. How can a party obtain appellate review? And, how can the person who petitions for an expunction make sure that the records of the appellate proceeding remain confidential? The Court’s opinion does not expressly address those issues, but the case provides guidance on both. Continue reading
Tag Archives: expunction
In S.L. 2017-195 (S 445), the General Assembly made several changes to North Carolina’s expunction laws. Most importantly, the act expands the availability of relief in two ways: it reduces the waiting period to expunge older nonviolent felony and misdemeanor convictions, and it allows a person to obtain an expunction of a dismissal regardless of whether the person received any prior expunctions. Because the act states that it applies to petitions filed on or after December 1, 2017, the revised statutes apply to offenses, charges, and convictions that occur before, on, or after December 1, 2017. The tradeoff for this expansion is that information about expunctions, maintained by the Administrative Office of the Courts and otherwise confidential, is available for review by the prosecutor and useable to calculate prior record level at sentencing if the person is convicted of a subsequent offense. This part of the act applies to expunctions granted on or after July 1, 2018. The act makes other changes to create more consistency and uniformity in the expunction process. Continue reading →
If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast. Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws. Continue reading →
I have been working on a theory of everything . . . for expunctions. It’s a small corner of the criminal justice universe, but a critical one for people with past convictions. The subject can be maddeningly complex, at times a seemingly impenetrable black hole. I have been trying to master the mysteries of our expunction statutes in updating my 2012 Guide to Relief from a Criminal Conviction (which you can find here, but beware of subsequent changes in the law).
Without further physics puns, here’s one of the questions I’ve looked at: Can a person expunge a misdemeanor conviction under G.S. 15A-145.5 for driving while impaired (DWI)? As the statute is currently worded, the answer is yes. Continue reading →
A new guide on obtaining relief from a criminal conviction—Relief from a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina—is now available from the School of Government. This online tool explains in one place the mechanisms available in North Carolina for obtaining relief from a criminal conviction, including expunctions, certificates of relief, and petitions to restore rights or eliminate restrictions.
Features of this guide include:
- Keyword searching
- Links to internal and external cross-references
- Printable pages throughout the site
- Accessibility from anywhere your electronic device can connect to the Internet
The guide is available at no charge here.
The new guide supplements the School’s Collateral Consequences Assessment Tool (C-CAT), an online tool created to help attorneys, service providers, affected individuals, and others assess the collateral consequences of a criminal conviction, such as bars to employment and professional licensure and loss of public benefits, among others. [Editor’s note: C-CAT was previously introduced on this blog here.]
To use C-CAT, you must go through a simple subscription process. The free subscription period, which was initially set to expire December 1, 2012, has been extended indefinitely. (A subscription will NOT convert automatically to a paid subscription. Should the School decide to charge for C-CAT, you will have the opportunity to decide whether to buy a paid subscription.)
You can subscribe to C-CAT at no charge here.
For your convenience, you can access both C-CAT and the new Relief from a Criminal Conviction Guide at the above website. (You may use the relief guide without subscribing to C-CAT.)
If you have questions or suggestions about either tool, please let us know.
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.
G.S. 90-96 is one of the densest, most used, and most misunderstood statutes on the books. Let’s try to unpack it a little bit.
There are two distinct subsections under which cases may fall — subsections (a) and (a1) — and the two subsections are different in scope and in effect. We’ll start with subsection (a). This is the descendant of the original version of G.S. 90-96. (The statute was enacted in 1971, and at that time, applied only to first convictions for possession of schedule III through VI substances — the inclusion of paraphernalia, schedule II substances, and felony cocaine possession all came later.) Subsection (a) applies to folks with no prior drug or paraphernalia convictions who plead guilty to or are found guilty of (1) misdemeanor possession of Schedule II through VI drugs, (2) possession of drug paraphernalia, or (3) felony possession of less than one gram of cocaine. There are a couple of things to note here. First, it is up to the court whether to allow a defendant the benefit of the statute: the court “may” do so, even if the state thinks that it shouldn’t (though the consent of the defendant is necessary), but it isn’t required to do so, even if the state and/or the defendant think that it should. Second, G.S. 90-96 isn’t limited to guilty plea cases: the court “may” allow a defendant the benefit of the statute whether the defendant pled guilty or was convicted after a trial. (Whether a judge is likely to allow a defendant who goes to trial the benefit of the statute is a separate question, of course.) Third, it appears that at least some judges, in at least some cases, are allowing defendants the benefit of the statute in cases outside the statute’s scope. See, e.g., State v. Hasty, 133 N.C. App. 563 (1999) (involving a defendant who was on probation, purportedly under subsection (a), for PWISD cocaine).
If the court decides to proceed under subsection (a), the disposition of the case is relatively straightforward: there is no immediate adjudication of guilt or entry of judgment. Instead, the judge places the defendant on probation, for whatever time period the court sees fit. The probation may, but need not, include drug education as a condition. Historically, there hasn’t been an AOC form for this, and judges have either tried to modify judgment forms or have created their own forms. However, I understand that the AOC will shortly be releasing a new form to be used for this type of order.
If the defendant violates his probation, the court enters an adjudication of guilt and sentences the defendant under Structured Sentencing. If the defendant successfully completes his probation, the court dismisses the charges and the defendant is left without a conviction. Furthermore, as detailed in subsection (b) of the statute, if the defendant was “not over 21 years of age” at the time of the offense, he may apply for an expunction of the charges. This expunction provision is much broader than that allowed under G.S. 15A-145, which applies only to misdemeanors and only if the defendant was under 18 years of age at the time of conviction.
The other leading subsection of G.S. 90-96 is subsection (a1), which was added in 1981, and which is confusingly drafted. The best way to try to understand it is to compare it to subsection (a). Subsection (a1) is considerably broader than subsection (a). It applies to “any offense included in G.S. 90-95(a)(3),” meaning all simple possession offenses, regardless of drug type or quantity, and to drug paraphernalia offenses. Furthermore, although is is limited to “first conviction[s],” it ignores prior offenses that are more than seven years old for purposes of determining whether a defendant is a first offender, again unlike subsection (a).
The confusing part of subsection (a1) is that it doesn’t completely spell out how qualifying cases are to be resolved. It says that the judge “may” place the defendant on probation — apparently, with or without the consent of the defendant — which must be for at least a year, and which must, absent exceptional circumstances, include drug education. (Note that the latter two requirements are absent from subsection (a), so while subsection (a1) is broader, it is also a bit tougher.) This appears to be probation pursuant to an entry of judgment, unlike the probation available under subsection (a). Subsection (a1) is missing the proviso, “without entering a judgment of guilt,” that is included in subsection (a), and subsection (a1) contains no procedure for entering a subsequent judgment after a violation of probation — it simply provides that probation shall be revoked, suggesting that the original imposition of probation is the judgment.
Furthermore, the statute is not explicit about what happens if a defendant sentenced under subsection (a1) successfully completes probation. Unlike subsection (a), it does not mandate that the court “shall . . . dismiss the proceedings.” And subsection (b), which contains the expunction provisions of the statute, refers only to proceedings dismissed “under subsection (a),” not to cases that fall within (a1). Yet it appears that the General Assembly intended that at least some defendants sentenced under subsection (a1) would be somehow eligible for expunctions — if not, why would subsection (a1) say that defendants who fail to complete their drug education classes be “den[ied] application for expunction”?
The bottom line is that subsection (a) is clear, while subsection (a1) is broader, but not as clear. I’d like to know whether, and how, subsection (a1) is being used in practice — are defendants being put on probation prior to judgment a la subsection (a), or are they being put on probation pursuant to judgment? Are they receiving expunctions? Subsection (a1) may merit clarification by the General Assembly so that defendants who fall within it are treated the same way from district to district.
Since this post is already too long, I’m not going to unpack subsection (e), but it’s worth reading. Essentially, it provides for after-the-fact expunctions for folks who would have been eligible under subsection (a). There are a couple of ambiguities in the statute, including whether the court “may” or “shall” grant an expunction to eligible offenders, and whether there’s an age limit for eligibility. For now, suffice it to say that In re Expungement for Spencer, 140 N.C. App. 776 (2000) answers some of these questions and is the leading case on subsection (e).