In United States v. Smith, 939 F.3d 612 (4th Cir. 2019), the Fourth Circuit held that a defendant who received a conditional discharge for a prior felony was not “convicted” of that crime within the meaning of the federal felon-in-possession statute. He was therefore not a felon under that law, and thus not barred from possessing a firearm under it. The appellate court reversed his conviction. The case gives us an opportunity to review what we know (and don’t know) about the subsequent effect of conditional discharges and PJCs. Continue reading
Tag Archives: prayer for judgment continued
Sometimes prayer for judgment is continued on a serious (Class B1–E) felony conviction to give a defendant time to demonstrate good behavior before sentencing. What happens if that PJC extends beyond the time limitations set out in G.S. 15A-1331.2? Does the court lose jurisdiction to enter judgment in the case and sentence the defendant? Continue reading →
With three words—PER CURIAM. AFFIRMED.—the Supreme Court of North Carolina last week added a new wrinkle to two already perplexing areas of the law: sex offender registration and PJCs. In Walters v. Cooper, the high court affirmed the court of appeals’ conclusion that a conviction for which a person receives a prayer for judgment continued (PJC) does not require registration as a sex offender.
The details of the case are set out in this prior post, but I will recap them briefly here. Paul Walters received a PJC for his 2006 conviction of misdemeanor sexual battery. He did not register at that time, but was later required to register. He sought declaratory relief in superior court, arguing that a PJC was not a “final conviction” within the meaning of G.S. 14-208.6(4). The trial judge rejected that argument and required him to continue registering. Over a dissent, the court of appeals reversed, concluding that a “true PJC” like the one received by Mr. Walters was not a final conviction for sex offender registration purposes.
The supreme court affirmed, adopting the view of the court of appeals majority that the legislature’s use of the word “final” before “conviction” in G.S. 14-208.6(4) was intended to exclude convictions followed by a PJC. With that interpretation in place, sex offender registration stands as an exception to the general rule that a PJC is the functional equivalent of a conviction for virtually all subsequent purposes, including:
- Prior record points. State v. Hatcher, 136 N.C. App. 524 (2000); State v. Canellas, 164 N.C. App. 775 (2004).
- Evidence Rule 609. State v. Sidberry, 337 N.C. 779 (1994) (holding that a PJC entered after a guilty plea counts as a conviction for Rule 609 impeachment purposes).
- Prohibition on handgun permits for felons. Friend v. State, 169 N.C. App. 99 (2005).
Courts generally come to that conclusion on the theory that the underlying determination of guilt, not the judgment, is the conviction.
The supreme court declined to adopt the thinking of Judge Steelman’s court of appeals dissent. In it, the judge reasoned that whether a PJC is a “final conviction” for sex offender registration purposes was beside the point in Mr. Walters’ case, because he didn’t receive a true PJC. Recall that a PJC is converted into a judgment when it includes conditions that amount to punishment—which certainly includes conditions like imprisonment or a fine, State v. Brown, 110 N.C. App. 658 (1993), but has also been deemed to include lesser things like a curfew or a requirement to write a letter of apology, State v. Popp, 197 N.C. App. 226 (2009).
Judge Steelman would have concluded that the condition on Mr. Walters’ PJC that he “not have any contact with, communicate with, in any shape, form, or fashion, the victim, [and] not be on her property or contact any member of her immediate family” was a sufficient enough limitation on Walters’ rights of association and movement to convert the purported PJC into a final judgment. The State noted the “conditions amounting to punishment” issue as an alternative argument in its appellate brief, but did not cite to Popp. Previously I would have said in light of Popp that about the only conditions that do not convert a PJC into a judgment are a requirement to pay costs, G.S. 15A-101(4a), and a requirement to obey the law, Brown, 110 N.C. App. at 659. The supreme court’s affirmance of Walters has me wondering if the case can be viewed as setting a slightly higher floor for what constitutes a non-punitive condition.
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.
Defendants are generally pretty happy to get a PJC. When a judge continues prayer for judgment the defendant avoids punishment and is often able to sidestep a car insurance rate hike. That’s not to say a PJC is a total free pass. I wrote before about how a PJC will certainly count as a prior conviction if the defendant is later sentenced for another crime, and I’m still unclear about how a judge can later “dismiss” a PJC if a defendant behaves for a certain amount of time. But more often than not, a PJC is a welcome act of judicial mercy.
But suppose the defendant doesn’t want a PJC. Maybe she wants to go into the military, which may consider the PJC to be an unresolved legal matter, and therefore an impediment to enlistment. Or maybe the PJC had unforeseen employment consequences for, say, a commercial driver. Maybe he wants to appeal the case, but is being told he can’t – as something other than a final judgment, a PJC cannot be appealed. State v. Pledger, 257 N.C. 634 (1962). Whatever the reason, sometimes the defendant just needs judgment to be entered. Under G.S. 15A-1416(b) the State can make a motion for appropriate relief for imposition of sentence when prayer for judgment has been continued, but there’s no corresponding statute allowing the defendant to do so. If the judge is unwilling to enter judgment, and the State is unwilling to pray judgment, is the defendant really stuck with the PJC?
The black-letter rule that has emerged over the years is that “North Carolina courts have the power to continue prayer for judgment without the defendant’s consent, so long as no conditions are imposed on the defendant.” State v. Van Trusell, 170 N.C. App. 33 (2005). (Of course, in many cases the inclusion of conditions would convert a would-be PJC into entry of judgment, as the court of appeals reminded us in State v. Popp. So let’s assume we’re talking about a truly conditionless PJC.) But if you go back in time and look at the cases cited in support of the rule, you see it begin to unravel. To the DeLorean…
Van Trusell cites to State v. Griffin, 246 N.C. 680 (1957) – the leading case on a judge’s authority to continue prayer for judgment. In Griffin the supreme court wrote that “[i]n the event the court, after a conviction or plea, finds it desirable not to pass judgment immediately, it may continue the prayer for judgment from one term to another without the defendant’s consent if no terms or conditions are imposed.” Sounds pretty similar to the rule stated in Van Trussel, right? But notice the parts I italicized. It seems to me that Griffin wasn’t talking about a judge’s authority to continue prayer for judgment forever, but rather the authority to take additional time, if needed, to decide a case. In fact, elsewhere in Griffin the court says “the inherent power of a court having jurisdiction to suspend judgment or stay execution of sentence on conviction in a criminal case for a determinate period and for a reasonable length of time has been recognized and upheld in this jurisdiction.”
Griffin cites to State v. Burgess, 192 N.C. 668 (1926). In that case the judge continued prayer for judgment after a defendant was convicted of an assault with a deadly weapon. The defendant “excepted” to the PJC, wanting to appeal the conviction. The supreme court held that the defendant “had a substantial right that some final judgment be rendered so as to enable him to preserve his right under the law.” The court went on to say that a judge could continue a prayer for judgment “from one term to another” without a defendant’s consent – but again, it appears to me that the court is talking about a delay, not a disposition.
I won’t go back any further than that for now, but suffice it to say there are some gaps in the “inherent authority” grounding of the permanent, unwelcome PJC. In closing I’ll also point out Klopfer v. North Carolina, 386 U.S. 213 (1967), a Supreme Court case arising out of North Carolina’s “nolle prosequi with leave” procedure. In that case the State entered a nolle prosequi with leave – “a declaration on the part of the solicitor that he will not at that time prosecute the suit farther,” State v. Klopfer, 266 N.C. 349, 350 (1966) – in a misdemeanor trespass case. The defendant, a Duke professor and civil rights activist, wanted the State to go ahead and prosecute his case, complaining that the continued “pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad.” The state supreme court said the defendant could not compel the State to proceed. Id. The Supreme Court disagreed, holding on speedy trial grounds that the State could not “indefinitely prolong this oppression.” Klopfer, 386 U.S. at 222. Concurring in the result of the case, Justice Harlan wrote that “this unusual North Carolina procedure, which in effect . . . put[s] a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment.” Could a similar argument be made in the PJC context?
This post benefits from research done by School of Government law clerk Chris Heagarty.