Using Expunged Convictions as Prior Convictions in a Habitual Felon Case

If a person has a felony conviction, then gets it expunged, may the conviction nonetheless be used as a prior conviction to support a habitual felon charge? No reported appellate case answers the question. However, the relevant statutes have recently been amended, and it the answer now generally appears to be yes.

Many felonies may be expunged. It may come as a surprise to some readers that a felony conviction could be expunged. It is true that some of North Carolina’s expunction statutes apply only to misdemeanors, but others allow the expunction of felony convictions. For example:

• G.S. 15A‑145.1 allows for the expunction of certain gang-related felonies committed a person under 18
• G.S. 15A‑145.4 allows for the expunction of many non-violent felonies committed by a person under 18
• G.S. 15A‑145.5 allows for the expunction of many non-violent felonies committed by a person of any age, after a substantial waiting period
• G.S. 15A‑145.8A allows for the expunction of many Class H and I felonies committed by a person under age 18 prior to December 1, 2019 (the effective date of the original increase in the age of juvenile jurisdiction from under 16 years to under 18 years)
• G.S. 15A‑145.9 allows for the expunction of many felonies committed by victims of human trafficking 

For a comprehensive look at North Carolina’s expunction laws, see John Rubin, Relief from a Criminal Conviction, a digital publication available on the School of Government’s website.

At least some expunged felony convictions may be used to support a habitual felon charge. According to G.S. 15A-151.5: “For any expungement granted on or after July 1, 2018, the record of a criminal conviction expunged under this Article may be considered a prior conviction and used . . . [t]o serve as a basis for indictment for a habitual offense pursuant to G.S. 14‑7.1or G.S. 14‑7.26.”

The reference to G.S. 14-7.1 is to the habitual felon statutes. The reference to G.S. 14-7.26 is to the habitual breaking and entering statutes. There is no reference to the violent habitual felon statutes or the armed habitual felon statutes, perhaps because offenses that would qualify as prior felonies for those statutes are very serious and are not likely to be eligible for expungement.

The quoted language may leave readers wondering about the status of expungements before July 1, 2018. That date was added to the statute by S.L. 2017-195, which enacted G.S. 15A-151.5 to expand and clarify prosecutors’ ability to access information about expunctions. I speculate that the 2018 date was included to avoid any ex post facto issue by putting everyone on notice that going forward, an expunction might do many wonderful things for a defendant, but it won’t keep the original conviction out of a prosecutor’s hands. The legislation was silent about expunctions prior to that date, which were not easy for prosecutors to access. I tend to think that prosecutors should avoid attempting to use convictions expunged before July 1, 2018, on the theory that expressly allowing the use of later expunctions shows an intention to disallow the use of earlier ones, but I’m not completely certain that our appellate courts would agree with that line of thinking.

Adding another wrinkle, the 2017 legislation focused on prosecutors’ ability to access information about expunctions in order to include the expunged convictions in prior record level calculations. The right of prosecutors to access information about expunctions in order to use expunged convictions in habitual prosecutions was not added to the statute until S.L. 2020-35, which took effect December 1, 2020. There could be an argument that expunctions before December 1, 2020, not just before July 1, 2018, should not be used in habitual prosecutions because the statute did not contemplate using them for that purpose until that date.

Proving expunged convictions. If a prosecutor suspects that a defendant has a prior conviction that has been expunged, what can the prosecutor do to verify his or her suspicions and to obtain the evidence needed to prove the conviction? The prosecutor might start by seeing what files are still available in the district attorney’s office. (The extent to which a prosecutor may properly retain case records after an expunction order is an important question, but is beyond the scope of this post. This portion of Relief from a Criminal Conviction addresses the issue.) If the prosecutor has records, including electronic records such as a DCI or ACIS printout, those records may establish the prior conviction.

If not, the prosecutor must look elsewhere. One option is to query the Administrative Office of the Courts (AOC). Under G.S. 15A-151(a), the AOC is required to “maintain a confidential file for expungements.” And, pursuant to G.S. 15A-151.5(a), the AOC “shall make all confidential files maintained under G.S. 15A‑151 electronically available to all prosecutors of this State.” See also G.S. 15A-151(a)(7) (information in the confidential file may be disclosed “[t]o the district attorney”). Therefore, a prosecutor ought to be able to obtain information about an expunged conviction from the AOC.

Alternatively, or if the prosecutor wants more information than the AOC can provide (the AOC’s information may be limited to the petition for expungement and the order granting the petition), it appears that the prosecutor could approach the clerk’s office. That office should maintain the original case documents. See G.S. 15A-151(a1) (“Court records expunged under this Article are confidential and shall be retained by the clerks of superior court as confidential files.”). The original documents should be available to a prosecutor. See G.S. 15A-151(a2) (stating that “[a] clerk shall disclose the existence or content of an expunged record from the clerk’s own county . . . [t]o the office of the district attorney”).

Even if the original case documents are no longer available, the AOC’s records of the expungement should suffice to establish the conviction. Under G.S. 15A-151.5(c), “[f]or any expungement granted on or after July 1, 2018, the information maintained by the Administrative Office of the Courts . . . is prima facie evidence of the expunged conviction . . . and is admissible into evidence.”

If readers have questions or comments about the use of expunged convictions to support habitual felon charges, please let me know. Out-of-state readers should be aware that the above analysis is limited to North Carolina cases. Different states have different rules about when and how prosecutors may access and use information about expunged convictions. See generally Kimberly J. Winbush, Pardoned or Expunged Conviction as “Prior Offense” Under State Statute or Regulation Enhancing Punishment for Subsequent Conviction, 97 A.L.R.5th 293 (originally published 2002) (collecting cases).