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Relief from a Criminal Conviction (2018 edition)

PRAYER FOR JUDGMENT CONTINUED (PJC): May a person obtain an expunction of a “true” PJC? Does a PJC count as a prior conviction under statutes barring relief based on a prior conviction?

A person should be able to obtain an expunction of a true PJC under the same circumstances as for an expunction of a final judgment of conviction, both for policy reasons and under the language of the statutes. The treatment of a PJC for the purpose of determining whether it is a bar to relief is not necessarily the same, however. The answer depends on the language of the particular statute and the cases interpreting it.

As with other expunction questions, trial courts’ treatment of PJCs may vary. A person interested in a future expunction may benefit more by obtaining a diversion (deferred prosecution or discharge and dismissal), which have more certain consequences.

Generally. A true PJC occurs when a defendant has pled guilty or has been found guilty and the court indefinitely continues the case without entering judgment. (A court sometimes will call its order a PJC when it imposes conditions amounting to punishment or briefly continues the case for later sentencing. The impact of these types of determinations is discussed below.) Although no judgment of conviction is entered, a true PJC is the final disposition in the case.

At one time the effect of a PJC had a more settled meaning. It was viewed as a way for a judge, in the exercise of discretion, to lessen the impact of a criminal proceeding. By withholding judgment in a case that he or she considered appropriate, a judge could keep a person from having a conviction and bearing the attendant consequences. See, e.g., Barbour v. Scheidt, 246 N.C. 169 (1957) (recognizing that PJC is proper where court is satisfied, by reason of extenuating circumstances, sufficient cause, or question of law, that public justice does not require judgment and sentence), In Smith v. Commonwealth, 113 S.E. 707, 709–10 (Va. 1922), cited with approval in Barbour, the court explained the distinction between a guilty verdict and a judgment of conviction following a determination of guilt. A guilty verdict allows further action in the proceedings, such as entry of judgment and sentence. It also triggers the opportunity for relief, such as a pardon. To trigger punitive consequences in other proceedings, however, the “great weight of authority” requires that a judgment of conviction be entered.

Beginning in the 1990s, North Carolina law began to shift. In a series of cases, the North Carolina appellate courts began treating a true PJC as a conviction for the purpose of other proceedings. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (concluding that State could impeach defendant with PJC as a conviction under N.C. Evidence Rule 609); Britt v. North Carolina Sheriffs’ Educ. and Training Standards Comm’n, 348 N.C. 573 (1998) (deferring to commission’s interpretation that PJC constituted conviction and upholding revocation of deputy sheriff’s certification); State v. Hatcher, 136 N.C. App. 524 (2000) (allowing true PJC to be used as prior conviction under structured sentencing for new offense). Compare State v. Southern, 314 N.C. 110 (1985) (holding under Fair Sentencing Act that true PJC could not be used as prior conviction). As a result, although a PJC may seem beneficial to a defendant, it often carries the consequences of a criminal conviction.

The North Carolina courts have continued to recognize that, if the applicable laws so provide, a PJC does not constitute a conviction for the purpose of other proceedings. See, e.g., Florence v. Hiatt, 101 N.C. App. 539 (1991) (recognizing that true PJC did not constitute final conviction under statute authorizing DMV to suspend or revoke a person’s driving privileges). Recent court decisions as well as legislative changes, discussed further below, have reinforced this possibility, recognizing circumstances in which a true PJC should not be treated as a conviction.

Expunction of PJC. Both policy reasons and the pertinent statutory language support expunction of a true PJC. See also Jamie Markham, Can You Expunge a PJC?, N.C. Crim. L., UNC Sch. of Gov’t Blog (July 29, 2010) (suggesting this result). Although it does not result in a judgment of conviction, a true PJC carries many of the same criminal and civil consequences, such as greater punishment in a subsequent criminal case or loss of an employment license, as indicated by the rulings above. Expunction of a PJC can therefore be as important to a person as expunction of a final judgment of conviction. It seems unlikely that the General Assembly would have intended for a person who receives a PJC, which essentially is an act of judicial leniency, to be worse off than a person who receives a judgment and sentence. 

The wording of the expunction statutes also supports this approach. For example, G.S. 15A-145 allows expunction of a misdemeanor conviction if the person “pleads guilty to or is guilty of a misdemeanor other than a traffic violation.” The statute does not require a judgment of conviction. This language corresponds to the procedure for a PJC, in which a person pleads guilty to or is found guilty of the offense and the court withholds entry of judgment. Other expunction statutes likewise authorize expunction when a person pleads guilty or is found guilty. See G.S. 15A-145.1(a) (gang offense); G.S. 15A-145.2(c) (controlled substance and drug paraphernalia offenses); G.S. 15A-145.3(c) (toxic vapors offense); G.S. 15A-145.4(c) (nonviolent felony committed before age 18).

Some of the newer expunction statutes do not specifically refer to guilty pleas or findings of guilt. See G.S. 15A-145.5 (older felonies and misdemeanors); G.S. 15A-145.6 (prostitution offenses). Instead, they refer generally to expunction of a conviction. Since these statutes were intended to expand the right to an expunction, and they do not include clear language to the contrary, this guide’s view is that the General Assembly intended for them to be construed consistently with the other relief statutes and allow expunctions of PJCs in the same circumstances as judgments of conviction. See supra Overview: Interpreting Relief Statutes (discussing importance of considering overall legislative scheme in construing language in individual statutes within the scheme).

Prior PJC as potential bar. For the sake of consistency, it would be simpler to interpret the impact of a PJC in the same way throughout the relief statutes. However, both the General Assembly and the courts have identified circumstances in which a PJC should not be treated as a conviction, particularly in recent years. In some instances, the law says so explicitly; in others, the courts have reached this result through interpretation. For the purpose of determining whether a PJC bars relief or triggers adverse consequences, the relief statutes can be divided into three basic categories.

One category of statutes expressly provides that a PJC bars relief. The statute authorizing restoration of firearm rights is an example. It requires the court to deny relief if, among other things, the petitioner has received a prayer for judgment continued for a misdemeanor crime of violence, G.S. 14-415.4(e)(6), or a prayer for judgment continued for a felony, G.S. 14-415.4(e)(7).

A second category of statutes provides for the opposite result. The most prominent example is in Chapter 20 of the General Statutes, which treats a PJC as a conviction for Chapter 20 purposes, such as driver’s license consequences, only if it is a person’s third PJC within a five-year period or involves a person with a commercial driver’s license or an offense in a commercial motor vehicle. G.S. 20-4.01(4a). A recently enacted example is the statute on expunction of a nonviolent felony committed before age 18. It provides that certain drug offenses are not “nonviolent felonies” and therefore are not eligible for expunction. However, in 2012 (in S.L. 2012-191 (H 1023)), the General Assembly amended the statute to provide that PJCs for otherwise-excluded drug offenses are eligible for expunction. G.S. 15A-145.4(a)(6).

Some statutes do not specifically refer to PJCs, but the courts have found that other language or principles exempt them from the consequences that follow a conviction. In Walters v. Cooper, 226 N.C. App. 166 (2013), aff’d per curiam, 367 N.C. 117 (2013), the court recognized that the sex offender registration statutes define a “reportable conviction,” which triggers registration obligations, as a “final conviction.” Because a PJC—in Walters for misdemeanor sexual battery—is not a final conviction, it does not trigger those obligations. See also Little v. Little, 226 N.C. App. 499 (2013) (holding that collateral estoppel principles did not permit court to rely on PJC for assault as basis for issuing domestic violence protective order because PJC is not a final judgment); Guzman-Gonzalez v. Sessions, 894 F.3d 131 (2018) (holding that PJC was not conviction for immigration purpose of cancellation of removal; assessment of costs did not constitute “punishment” or “penalty” as required by definition of conviction).

The third and by far largest category of relief statutes is silent about the effect of a PJC, stating generally that a prior conviction of certain offenses is a disqualifier. Most of the relief statutes discussed in this guide fall into this third category. See, e.g., G.S. 15A-145.4(c) (allowing expunction if person “has not previously been convicted” of specified offenses). On the one hand, the trend in the law has been to treat general references to convictions as including PJCs. Under this approach, a PJC would be a bar under relief statutes stating generally that a conviction is a bar. On the other hand, recent cases have looked more closely at the particular language at issue—for example, in the cases cited above, at the requirement that the conviction be “final.” The relief statutes do not use that term but do employ different language in describing the matters subject to expunction and the prior matters that bar expunction. For the former, most of the statutes refer to findings of guilt and guilty pleas, with or without a judgment of conviction. For the latter, the statutes refer to convictions. No appellate decisions have addressed the impact of a prior PJC in the context of relief statutes, but the policies furthered by those statutes may support an interpretation that effectuates a judge’s act of leniency in granting a PJC and makes relief more widely available.

Other determinations called PJCs. The discussion above concerns a true PJC (that is, the defendant has pled guilty or has been found guilty and the court has indefinitely continued the case without entering judgment). Sometimes, a court will call its order a PJC even when it imposes conditions amounting to punishment. Unlike a true PJC, such an order is considered a judgment of conviction. See State v. Popp, 197 N.C. App. 226, 228 (2009) (holding that a PJC with conditions amounting to punishment “loses its character as a PJC and becomes a final judgment”). A PJC that constitutes a judgment of conviction is subject to expunction like any other conviction. It also may bar relief under statutes that make a prior conviction a disqualifier. If the latter situation occurs, a person may need to pursue other relief, such as a motion for appropriate relief to vacate the conviction.

In some instances, the court may continue a case for sentencing after an adjudication of guilt. Such an order is neither the final disposition in the case nor a judgment of conviction. A person therefore would have to wait until the court enters judgment and sentence before seeking an expunction. The adjudication of guilt, however, may bar relief or trigger adverse consequences without entry of judgment. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (allowing State to impeach defendant under N.C. Evidence Rule 609 where defendant pled guilty and court continued case for sentencing).