Relief from a Criminal Conviction (2023 Edition)

This discussion addresses situations in which a state agency disagrees with an order granting an expunction and requests reconsideration or review. It also discusses actions a petitioner may take to compel a state agency to comply with an order granting an expunction. Other parts of this guide discuss situations in which the petitioner contests an order of the court or seeks other relief. See supra Overview: Procedure to Obtain an Expunction (discussing subsequent petitions, modifications of orders, and appellate review).

The question here is whether the SBI may contest an order after the court grants it. Like other executive branch agencies, the SBI may not unilaterally refuse to comply with an order of a court. It may be able to contest an expunction order after its entry, however, and has done so in the cases discussed below. The procedure in such cases is not settled. If the SBI or other agency fails to comply with an expunction order and fails to ask the court to reconsider it, a person can file a petition for a writ of mandamus to compel compliance.

Reach of expunction order. Expunction orders apply broadly to state and local agencies. G.S. 15A-150(b) lists the agencies that must comply with an expunction order. The list includes the arresting agency; Division of Motor Vehicles (DMV); Department of Public Safety, which includes the SBI; and other government agencies identified by the petitioner in the petition for an expunction. Individual expunction statutes contain similar language.

An agency subject to an expunction order may not unilaterally refuse to comply with the order. Hamilton v. Freeman, 147 N.C. App. 195 (2001), announced the basic rule on compliance with court orders by executive agencies. In this class action suit, the plaintiffs alleged that the Department of Correction (DOC, now the Department of Adult Correction or DAC) had modified sentences imposed by the court in criminal cases if it determined that the sentences were unlawful. For example, DOC converted sentences ordered by the court to run concurrently into consecutive sentences if DOC determined that concurrent sentences were not permissible. The court held that DOC could not unilaterally refuse to implement a sentence ordered by the court, even if unlawful. By unilaterally altering court-ordered sentences, DOC “usurped the power of the judiciary, thereby violating separation of powers.” See also State v. Bowes, 159 N.C. App. 18 (2003) (holding that limited privilege granted by court was binding on DMV, even if contrary to law, and statute authorizing DMV to invalidate privilege violated separation of powers), vacated per curiam, 360 N.C. 55 (2005). [Because the Supreme Court did not specify its reasons for vacating the Court of Appeals’ decision in Bowes, the extent to which the General Assembly may grant an executive agency the power to override a court’s determination is unclear.]

Reconsideration of order. Generally, the local district attorney represents the State’s interest in expunction and other relief proceedings. Most of the relief statutes require that the district attorney be served with or be given notice of the petition before the court rules. Many also set a deadline for the district attorney to object. See, e.g., G.S. 15A-145(a) (giving district attorney 10 days to object after receiving notice of petition); G.S. 15A-145.4(c) (giving district attorney 30 days to object); see also G.S. 15A-173.4(a) (requiring that district attorney receive notice at least three weeks before hearing on petition for certificate of relief). Not all relief statutes specify that the district attorney receive notice. See G.S. 15A-146 (expunction of dismissals); G.S. 15A-145.2 (expunction of drug offenses by first offenders); G.S. 15A-145.3 (expunction of toxic vapors offenses by first offenders). Whether district attorneys receive notice of these petitions may vary with local practice.

Review of an order granting an expunction would appear to be limited if the district attorney receives notice and does not object or seek review. See generally In re Hutchinson, 218 N.C. App. 443, 445–46 (2012) (dismissing State’s appeal of order granting petition to terminate sex offender registration where State did not raise challenge at trial level; “a contention not raised and argued in the trial court may not be raised and argued for the first time on appeal”). In some instances, the SBI has written the judge after entry of an expunction order when it has concerns about the order’s validity, in effect asking the judge to reconsider the order. See generally In re Timberlake, 250 N.C. App. 80 (2016) (holding that agency letter did not give court jurisdiction to reconsider order terminating sex offender registration); Hamilton v. Freeman, 147 N.C. App. at 200 (trial court directed DOC to notify sentencing judge in writing within reasonable time if it believed that sentence was unlawful); G.S. 20-179.3(k) (statute requires DMV to notify court if it concludes that limited driving privilege is unlawful); John Rubin, When Agencies Disagree with Criminal Court Decisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Nov. 1, 2016) (discussing potential impact of Timberlake on various agency letters requesting reconsideration); Jamie Markham, DAC’s Auditing Authority, N.C. Crim. L., UNC Sch. of Gov’t Blog (Apr. 21, 2015) (discussing what are sometimes known as Hamilton v. Freeman letters by DAC in response to purportedly unlawful sentences); Meredith Smith, Clerks, Adoptions and Division Review (Part 1), On the Civil Side, UNC Sch. of Gov’t Blog (Feb. 4, 2015) (discussing appropriateness of letters by Division of Social Services of Department of Health and Human Services in response to adoption orders by clerks of court).

The procedure to follow and permissible grounds for an agency to request reconsideration are unclear. Expunctions are considered criminal proceedings. State v. J.C., 372 N.C. 203 (2019). The standards for setting aside civil judgments may be informative, however. See N.C. R. Civ. P. 60 (allowing party to make motion to set aside civil judgment for certain reasons only); Windham Distributing Co. v. Davis, 72 N.C. App. 179, 181–82 (1984) (holding that Rule 60 allows court in civil case to set aside judgment if void but not for mere errors of law).

The SBI, through the Attorney General’s Office, has obtained appellate review of expunction orders, sometimes well after their entry, by petitioning for a writ of certiorari. See, e.g., State v. Frazier, 206 N.C. App. 306 (2010) (Attorney General raised challenge initially in trial court five months after entry of order and, following denial of challenge, petitioned for writ of certiorari to review underlying expunction order); In re Robinson, 172 N.C. App. 272 (2005) (Attorney General petitioned for certiorari of trial court’s expunction order, without making initial motion in trial court, approximately 18 months after entry of order). Neither Robinson nor Frazier addresses the circumstances in which a writ of certiorari is appropriate, but implicitly the court found in each case that the circumstances justified consideration of the State’s petition. In Robinson, the trial court ordered the expunction of dismissals of six separate charges over a span of six years; the Court of Appeals reversed the order on the ground that the expunction statutes, as then written, did not allow expunction of multiple unrelated charges dismissed over a period of time. (The General Assembly thereafter amended G.S. 15A-146 to allow an expunction of multiple dismissals in a 12-month period; the statute now allows unlimited expunctions of dismissals regardless of when they occurred or whether they were related.) In Frazier, the trial court relied on the expunction statutes for gang offenses to order expunction of a felony conviction of accessory after the fact to murder, an offense not covered by the gang statutes; the Court of Appeals did not reach this issue because it found another error—that the gang statutes, enacted in 2008 and at the time of the petition effective for offenses committed thereafter, did not apply to the petitioner’s 1998 conviction. See also In re Spencer, 140 N.C. App. 776 (2000) (allowing State’s petition for writ of certiorari to review expunction of drug conviction for offense committed when person was older than statutory age limit). Other circumstances may be insufficient for a court to revisit an expunction order after a long delay. The dissenting judge in Robinson expressed concern about the impact on the petitioner of having a conviction reappear on his or her record after taking action in reliance on it having been expunged. 172 N.C. App. at 280.

The North Carolina Supreme Court, in State v. J.C., 372 N.C. 203 (2019), held that the State has no statutory right to appeal expunctions and dismissed the State’s appeal. The Court held that the State may seek review of an expunction order by writ of certiorari but observed that “an unjust outcome that would invoke certiorari review should rarely arise.” Id. at 210.

Enforcement of order. If an agency has not complied with an expunction order and has not sought reconsideration, a person may file a petition for writ of mandamus to compel compliance. In Frazier, the petitioner filed a motion in the trial court to enforce its previous expunction order, but a petition for writ of mandamus may be the more appropriate remedy because its purpose is to compel an entity to perform duties imposed by law. See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual, Vol. 2 Trial, § 35.7A, Mandamus (UNC School of Government, May 2020); see also State v. Bowes, 159 N.C. App. 18, 23 (2003) (dissent states that mandamus is the proper remedy to compel public officials to comply with ministerial duty imposed by law).