This part reviews North Carolina’s certificate-of-relief procedure, enacted by the General Assembly in 2011. See S.L. 2011-265 (H 641). The procedure is patterned after the Uniform Collateral Consequences of Conviction Act (Uniform Act), enacted in 2009 and amended in 2010 by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws). Through the Uniform Act, the Uniform Law Commission recommended that states allow people who have been convicted of a crime to apply for relief from collateral consequences that could impede their reintegration into society. North Carolina’s procedure, in Article 6 of G.S. Chapter 15A (G.S. 15A-173.1 through G.S. 15A-173.6), became effective December 1, 2011, meaning that it is available to people with criminal convictions who meet the requirements for relief whether their offenses or convictions occurred before or after December 1, 2011. The eligibility criteria and other procedures were revised for petitions filed on or after December 1, 2018. See John Rubin, Expanded Forgiveness of a Criminal Conviction, N.C. Crim. L. Blog (Jul. 3, 2018) (discussing S.L. 2018-79 (H 774).

The basic requirements for obtaining relief, contained in G.S. 15A-173.2, are discussed below and are listed in Table 23.

Requirements

For petitions filed before December 1, 2018, the petitioner may obtain a certificate if he or she has been convicted of no more than two Class G, H, or I felonies or misdemeanors of any class in one session of court. This language allows a certificate to be obtained for any combination of the permissible conviction classes (for example, one Class H felony and one misdemeanor or two Class I felonies).

For petitions filed on or after December 1, 2018, eligibility is both broader and narrower. The revised statute expands eligibility by allowing the petitioner to obtain a certificate of relief if he or she has three or fewer prior Class H or I felony convictions as well as any prior misdemeanor convictions. If the felony convictions occurred during the same session of court, the convictions count as a single conviction. Thus, a person who has been convicted of Class H or I felonies at three or fewer sessions of court is eligible for a certificate of relief, as is a person who is convicted of a misdemeanor at any time. The revised statute contracts eligibility by making a person ineligible if convicted of a Class G (or higher class) felony.

Questions common to various relief statutes are discussed in this guide in Appendixes: Frequently Asked Questions, such as the meaning of a “traffic violation,” the appropriate offense class to consider (the class at the time of conviction or at the time of the petition), and the effect of a prayer for judgment continued (PJC).

Effect

A certificate of relief is a court order. It reflects the court’s determination—after notice to the prosecutor and victim and, if requested by the court, investigation by a probation officer—that the petitioner should be granted relief. See G.S. 15A-173.4 (describing procedure for issuance of a certificate of relief).

If granted, a certificate of relief affects two types of collateral consequences: “collateral sanctions,” defined as penalties, disabilities, or disqualifications imposed by operation of law; and “disqualifications,” defined as penalties that an agency, official, or court may impose based on the conviction. In other words, collateral sanctions are those that are mandatory in the absence of a certificate of relief (or other form of relief), while disqualifications are those that a board or commission would have the discretion to impose. See also Uniform Collateral Consequences of Conviction Act, Section 2 Comment at p. 8 (describing collateral sanctions as mandatory and collateral disqualifications as discretionary). A certificate of relief relieves the person of all mandatory collateral sanctions except those listed in G.S. 15A-173.3 (for example, sex offender registration requirements and firearm disqualifications under G.S. Chapter 14, Article 54A (The Felony Firearms Act) and Article 54B (Concealed Handgun Permit)); those imposed by the North Carolina Constitution or federal law (for example, the state constitutional ban on holding the office of sheriff if previously convicted of a felony and federal bans on federally assisted housing and food stamp benefits for some convictions); and those specifically excluded in the certificate. A certificate of relief does not bar an entity from imposing discretionary disqualifications based on the conviction, but an entity may consider the certificate favorably in deciding whether to impose the disqualification. (An occupational licensing board is also subject to G.S. 93B-8.1, which limits denial of a license based on a criminal record. See supra Impact of a Criminal Conviction.)

G.S. 58-71-80(b) and (b1) are examples of collateral sanctions. These statutes require the Commissioner of Insurance to deny or revoke a person’s license to work as a bail bondsman if the person has been convicted of a felony at any time or of a misdemeanor drug offense on or after October 1, 2009. If the person obtains a certificate of relief, the commissioner may still consider the person’s prior conviction in making a licensing decision, but the prior conviction is not an automatic bar to a license. G.S. 58-71-80(a) provides examples of disqualifications. It permits, but does not require, the Commissioner of Insurance to deny or revoke a bail bondsman’s license for, among other reasons, conviction of a crime involving dishonesty, breach of trust, or moral turpitude; and the Commissioner may consider a certificate of relief favorably in making a licensing decision.

In addition to its effect on mandatory and discretionary collateral consequences, a certificate of relief limits the liability of a person who works with someone who receives a certificate of relief. G.S. 15A-173.5 provides that a certificate of relief bars a judicial or administrative action alleging lack of due care by a person who, knowing of the certificate of relief, hired, retained, licensed, leased to, admitted to a school or program, or otherwise transacted business or engaged in activity with the recipient of the certificate.

A certificate of relief does not result in an expunction or pardon of the conviction; a person must use other mechanisms to obtain those forms of relief.

Procedure

The procedures for certificates of relief are similar to the procedures for expunctions, but they differ in some important respects. Compare supra Procedure to Obtain an Expunction.

Place of hearing. The senior resident superior court judge hears petitions for convictions in superior court and the chief district court judge hears petitions for convictions in district court. The statute allows these judges to delegate their authority to judges, clerks, or magistrates in their districts. G.S. 15A-173.2(a). The statute does not specifically address the appropriate place to file and hear petitions when the petitioner’s convictions are from multiple courts. If the convictions occurred in superior and district court in the same district, the senior resident superior court judge and chief district court judge would have the authority to designate a single judicial official to hear the petition. If the convictions are from different districts, the statute may allow a judicial official from one of the districts to hear a petition for all of the convictions. The statute does not expressly require that the petition be filed in the district where the convictions occurred, although in a case in which the convictions occurred in one district the petitioner should file in that district. See AOC-CR-273 Instructions (Dec. 2018) (instructing petitioners to file petition for certificate of relief in county where convicted).

Record check. The district attorney provides the court with the petitioner’s criminal history. G.S. 15A-173.2(b). Unlike the expunction statutes, the certificate of relief statute does not require a record check by the State Bureau of Investigation.

Service. The certificate of relief statute does not require the petitioner to serve the petition on the district attorney. Rather, it requires that the court notify the district attorney at least three weeks before the hearing of the petition. G.S. 15A-173.4(a). The AOC form directs the clerk of court to give this notice. See AOC-CR-273 (Dec. 2018).

Fees. G.S. 15A-173.2(h) imposes a filing fee of $50 for a petition for a certificate of relief unless the petitioner is indigent.

Order. Unlike an expunction order, which is confidential, the issuance, modification, and revocation of a certificate of relief is a public record. G.S. 15A-173.4(e).

If the court denies the petition, the petitioner may file a subsequent petition after 12 months, subject to any conditions set by the court. G.S. 15A-173.2(g), G.S. 15A-173.4(a). If the court issues the certificate with restrictions, the petitioner may petition for modification or enlargement. The statute does not specify a waiting period, but the court may set conditions on reapplication. G.S. 15A-173.4(a).

If the person is subsequently convicted of a felony or misdemeanor other than a traffic violation, a certificate of relief is automatically revoked. G.S. 15A-173.2(f). If the person is convicted of a felony or misdemeanor other than a traffic violation in another jurisdiction, the court must revoke a certificate of relief. G.S. 15A-173.4(a). A motion to modify or revoke a certificate may be initiated by the court or district attorney. G.S. 15A-173.4. A person who has received a certificate of relief must notify any employer, landlord, or other party who has relied on a certificate of relief of any conviction, modification, or revocation of a certificate within 10 days of any of those events. A subsequent conviction does not necessarily preclude the court from issuing a later certificate of relief, however, if the person has fewer than the maximum allowable convictions.

 

Table 23. Certificates of Relief

Matters Subject to Certificate of Relief

Principal Restrictions on Issuance of Certificate of Relief

Applicable Statutes and Forms

  • For petitions filed before Dec. 1, 2018, any combination of two or fewer Class G, H, or I felony or misdemeanor convictions in one session of court
  • For petitions filed on or after Dec. 1, 2018, three or fewer Class H or I felony convictions or any misdemeanor convictions
  • No other convictions for a felony or misdemeanor other than for traffic violation
  • Person is not in violation of any criminal sentence, or violation is justified, excused, involuntary, or insubstantial
  • No pending criminal charges
  • Person is engaged in or seeking a lawful occupation or activity or otherwise has a lawful source of support
  • Petition may not be filed until 12 months after completion of sentence
  • Granting of petition would not pose unreasonable risk