North Carolina Criminal Law NC Criminal Law

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.