Appeals of Expunction Decisions

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. Appeal or Certiorari? In J.C., the State appealed a superior court judge’s order granting an expunction of a conviction and a dismissal. The Court of Appeals recognized that unless authorized by statute, a party does not have the right to appeal—in other words, the right to have a higher court review the case. The Court held that G.S. 15A-1445 governs the State’s right to appeal, and it “does not include any reference to a right of the State to appeal from an order of expunction.” Slip Op. at 2. The Court’s reliance on G.S. 15A-1445 implicitly addresses a key question about expunctions—whether they are criminal or civil matters. At least for purposes of appeal, the Court’s decision treats expunctions as criminal and therefore governed by criminal appeal statutes, in this instance by G.S. 15A-1445. The Court noted that in previous cases it has reviewed expunction orders at the State’s request pursuant to a petition for writ of certiorari, suggesting that a cert. petition would be an appropriate way for the State to seek review. [...]