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Relief from a Criminal Conviction (2020 Edition)

WAITING PERIODS: For expunction statutes that impose a waiting period based on when a person was convicted and completed his or her sentence, how should the waiting period be construed?

Most expunction statutes with a waiting period in North Carolina are subject to two possible interpretations. One interpretation is that the statutes of this type can be construed consistently—essentially, that the person may not file an expunction petition until the later of two events: (i) the passage of a specified number of years since the date of the conviction or (ii) completion of the person’s sentence. Under this interpretation, a person always must wait the specified number of years after the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within that time, he or she must wait any additional time it takes to complete the sentence. A second interpretation is that the statutes that include roman numerals in the above manner require this result but statutes without roman numerals lead to a different result—essentially, that the person must wait until the specified number of years have passed since the date of conviction and completion of the person’s sentence, whichever is later. Under this approach, the person always must wait the specified period of time after completing his or her sentence, which necessarily will be at least that amount of time after conviction and usually longer.

The two statutes with the clearest language are G.S. 15A-145 on expunctions of misdemeanors committed before age 18 or age 21 and G.S. 15A-145.1 on expunctions of gang offenses committed before age 18. Both incorporate roman numerals, like those above, into the waiting period language to make the requirements clear. Thus, G.S. 15A-145 states that a petition cannot be filed “earlier than: (i) two years after the date of the conviction, or (ii) the completion of any period of probation, whichever occurs later. . . .” The General Assembly added the roman numerals as part of a technical corrections bill in 2008, S.L. 2008-187, sec. 35 (S 1632). Before then, the statute stated that a petition could not be filed “earlier than two years after the date of the conviction or any period of probation, whichever occurs later. . . .” This phrasing was potentially unclear because it could be interpreted as requiring a defendant to wait two years after the date of conviction and the period of probation. The problem with that interpretation is that it made the language about the date of conviction superfluous. A person always completes his or her sentence, including probation, sometime after the date of his or her conviction; therefore, a person would always have to wait two years after completing probation. The roman numerals clarify that the statute requires the defendant to wait two years after the date of conviction and longer only if he or she has not completed probation.

G.S. 15A-145.1 contains the same clarifying roman numerals. That statute was enacted by the General Assembly in 2009 when it consolidated the expunction statutes. The General Assembly imported the waiting-period language, including the roman numerals, from the expunction provisions in the gang offense statute, G.S. 14-50.30. The General Assembly enacted the gang offense statute in 2008, the same year it made the technical correction to G.S. 15A-145, described above.

Expunction statutes enacted after 2008 do not use roman numerals. G.S. 15A-145.4(c), which was enacted in 2011 and allows expunction of nonviolent felonies committed before age 18, states that an expunction petition “may not be filed earlier than four years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” One interpretation of this provision is that the person always must wait four years after completing his or her sentence, which necessarily will be at least that amount of time after the date of conviction and usually longer. An alternative interpretation is that the provisions should be read consistently with the statutes that contain clarifying roman numerals. Thus, the person must wait four years after conviction and, if the defendant has not completed his or her sentence within that time, any additional time it takes to complete the sentence. The person would not have to wait four years after the date of conviction and the completion of the defendant’s sentence, which would render the conviction language superfluous.

G.S. 15A-145.5, which was enacted in 2012 and allows expunction of older nonviolent misdemeanors and nonviolent felonies, initially contained the same phrasing. In 2020, the statute was revised in a way that clarified the waiting period for two categories of expunctions but left the same phrasing for the third category. For expunction of a felony conviction, G.S. 15A-145.5(c)(3) states that a petition may not be filed earlier than “10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” For expunction of more than one misdemeanor conviction, G.S. 15A-145.5(c)(2) states that a petition may not be filed earlier than “seven years after the date of the person’s last conviction, other than a traffic offense not listed in the petition for expunction, or seven years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” These formulations effectively make the sentence-completion date the starting date of the waiting period because a person’s sentence will always end at the same time and usually after the date of conviction. In contrast, for expunction of one misdemeanor conviction, G.S. 15A-145.5(c)(1) states that a petition may not be filed earlier than “five years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” This phrasing is subject to the alternative interpretations discussed above. The General Assembly’s revision of the waiting period language for the other two categories provides additional support for the “roman numeral” interpretation for expunction of one misdemeanor—that the person must wait (i) five years after the date of conviction or (ii) when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.

A final statute on expunction of prostitution offenses, passed in 2014 as part of a much larger act on sex trafficking, contains a similar ambiguity. It requires that “at least three years have passed since the date of conviction or the completion of any active sentence, period of probation, and post-release supervision, whichever occurs later.” G.S. 15A-145.6(b)(2)b. This phrasing may require that the person wait at least three years after completion of his or her sentence, which necessarily will be three years after conviction and usually longer. Alternatively, the provision could be read as requiring the petitioner to wait until either (i) three years have passed since the date of conviction or (ii) completion of his or her sentence, whichever occurs later.