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Relief from a Criminal Conviction

Interpreting Relief Statutes

North Carolina’s relief statutes, particularly the expunction statutes, are complex. They contain an extraordinary amount of detail, which can be difficult to understand and apply. Further, the expunction process involves multiple participants, sometimes with different perspectives. The usual participants are involved in litigation of the issues: the petitioner, alone or through counsel; the District Attorney’s office, which represents the State in response; and the judge, who decides on eligibility for relief. Others play a significant role outside of court. The Administrative Office of the Courts (AOC) issues form petitions and orders, which set forth the requirements for relief, and maintains and provides confidential information about prior expunctions; clerks of court implement local procedures for handling petitions; and the State Bureau of Investigation (SBI) checks the petitioner’s prior criminal record. Agreement may not exist on all issues in this complicated area of law.

This guide attempts to provide an integrated approach to North Carolina’s relief statutes. It lays out the basic rules for obtaining relief and offers ways of thinking about areas of uncertainty. Others may reach different conclusions. The discussion below describes the general approach to interpretation taken in this guide.

Where the statutory requirements are clear, the guide restates those requirements. This approach reflects the basic rule of statutory construction that when a statute is clear and unambiguous, the language must be given its plain meaning. See In re Spencer, 140 N.C. App. 776, 778 (2000), and cases cited therein. For the most part, the relief statutes contain exact requirements, which control a person’s eligibility for relief. Further interpretation is sometimes necessary, however.

The format of relief statutes, many of which set forth the requirements for relief more than once, can put a literal approach to the test. A relief statute may first describe the preconditions for relief, then restate the requirements in describing the supporting materials the petitioner must submit, and end with another statement of the criteria authorizing the court to grant relief. The statements do not always agree. Where the requirements appear to be cumulative and do not conflict, this guide lists all of them as preconditions for relief. For example, as a condition for petitioning for an expunction of a conviction of a misdemeanor offense committed before age 18, G.S. 15A-145 requires that the petitioner have no prior felony or misdemeanor convictions other than for a traffic violation. The statute also directs the court to grant the expunction petition if it finds that the person has no felony or misdemeanor convictions other than for a traffic violation for two years after the conviction to be expunged; that portion of the statute does not require the court to find no prior convictions. Both requirements are listed in this guide as necessary for an expunction because, although not listed as preconditions throughout the statute, the requirements do not conflict.

In some instances, the statutes are unclear, internally inconsistent, or incapable of being literally applied. These portions of the relief statutes are, in a word, ambiguous. Applying another basic rule of statutory construction, the court in one expunction case recognized, “When a statute is ambiguous or unclear in its meaning, resort must be had to judicial construction to ascertain the legislative will.” In re Spencer, 140 N.C. App. at 778–79. To determine legislative will—with statutes in general and relief statutes in particular—the courts have employed various principles of statutory construction. Four main principles stand out and are discussed below. In places, this guide considers additional, specific principles of statutory construction used by the courts, such as the idea that if the legislature used a term in one context and not another, the legislature intended for it to apply in that context and not the other. These principles can be helpful, but if applied too rigidly, they may obscure rather than clarify the meaning of a statute. If a difference in terminology appears inadvertent or insignificant, the above principle fails to effectuate the legislature’s intent, which is the ultimate inquiry. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:23 (7th ed., Nov. 2016) (observing that as with all aids for interpretation, the maxim expressio unius est exclusio alteriuis [the principle discussed above] “is subordinate to the primary rule that legislative intent governs the interpretation of a statute”).

A first principle concerns the general purpose of relief statutes, which is to aid individuals who satisfy the required conditions. Courts and commentators have observed that remedial statutes should be construed liberally. 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 60:1 (7th ed., Nov. 2016) (discussing reasons for approach); George L. Blum, Judicial Expunction of Criminal Record of Convicted Adult Under Statute—General Principles, and Expunction of Criminal Records Under Statutes Providing for Such Relief Where Criminal Proceeding Is Terminated in Favor of Defendant, upon Completion of Probation, upon Suspended Sentence, and Where Expungement Relief Predicated upon Type, and Number, of Offenses, 69 A.L.R.6th 1 (2011) (“statutory provisions governing expungement of a conviction are remedial in nature and must be liberally construed to promote their purposes”); see also O & M Industries v. Smith Engineering Co., 360 N.C. 263, 268 (2006) ("remedial statute must be construed broadly"). The North Carolina Attorney General has articulated a contrary rule of statutory construction—that expunction statutes should be construed strictly because they operate as an exception to general principles restricting the alteration of accurate judicial records. An earlier Attorney General opinion, referring to both principles, favored the liberal rule for the expunction statute in question. See Opinion Letter by North Carolina Attorney General to Russell G. Walker, District Attorney 19B Prosecutorial District, 49 N.C. Op. Att’y Gen. 17 (Aug. 28, 1979). Later opinions by the Attorney General referred to the strict rule of statutory construction only. See Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995); accord Opinion Letter by North Carolina Attorney General to Mike Bryant, Director, DMV Driver License Section (June 13, 2001). The source for the stricter rule is difficult to identify. The decision cited in the Attorney General’s opinions, State v. Bellar, 16 N.C. App. 339 (1972), states that a court does not have the authority to expunge records of other government agencies “absent the authority of statute,” but the decision does not suggest that if such a statute exists, it should be construed strictly. The better supported view appears to be that remedial statutes should be interpreted liberally.

A statute’s purpose provides a general perspective on how to interpret the statute, but it does not resolve the meaning of ambiguous language. Courts still must determine what the legislature intended. A second principle in interpreting ambiguous language directs courts to consider the language in relation to the statute as a whole. Thus, they should try to harmonize all of a statute’s provisions and should not view language in isolation. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 46.5 (7th ed., Nov. 2016) (discussing principle of “whole statute” interpretation); see also Watson Industries v. Shaw, 235 N.C. 203, 210 (1952) (recognizing this principle).

A third and “natural corollary of whole-act interpretation instructs courts to locate the relevant legislative intent not just in an entire statute, but also the entire legislative scheme of which it is a part.” Id.; see also Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) ("the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). This principle is particularly helpful in construing the dense language of North Carolina’s expunction statutes, which are part of a legislative scheme to afford relief from the consequences of a criminal conviction. Some differences in language are substantive and must be given effect by the courts, but some appear to be the result of imprecise wording or even punctuation and should be construed in light of the General Assembly’s overall intent.

For example, G.S. 15A-145 allows for expunction of misdemeanors other than traffic violations, while G.S. 15A-145.5 disallows expunction of certain offenses involving motor vehicles but does not exclude traffic violations generally. This difference appears to reflect a substantive choice to disallow expunctions of traffic violations under one statute but not the other. In contrast, G.S. 15A-145 and most other expunction statutes allow an expunction of a plea of guilty or finding of guilt, while more recent expunction statutes, including G.S. 15A-145.5, refer generally to expunction of a conviction. The former language supports the ability to expunge a prayer for judgment continued (PJC), a disposition that does not involve a judgment of conviction but includes an adjudication of guilt and carries many of the same consequences as a conviction. The use by later drafters of the term “conviction” likely does not reflect an intent by the General Assembly to narrow the dispositions eligible for expunction, particularly when the General Assembly’s purpose in enacting the later statutes was to expand the opportunities for expunction. For a further discussion of expunction of PJCs, including whether a prior PJC is a bar to an expunction or other relief, see infra Appendixes: Frequently Asked Questions (Prayer for Judgment Continued (PJC)).

Just as earlier statutes may clarify later statutes enacted by the General Assembly, later statutes may provide a guide to the General Assembly’s intent in earlier statutes. For example, in 2006, the General Assembly enacted a statute requiring a person to meet certain criteria to terminate sex offender registration requirements. Among other things, a person must show that since completing his or her sentence for the offense, he or she has not been “arrested” for another offense requiring registration. See G.S. 14-208.12(a1)(1). Construed literally, this language bars termination if the person is ever arrested for such an offense, even if the charge is dismissed or the person is acquitted. It seems unlikely that the General Assembly intended this result. Later statutes use more precise language—that is, that outstanding, pending, or existing warrants, indictments, or cases bar relief. See G.S. 14-415.4(e)(2) (barring restoration of firearm rights if person is under indictment or finding of probable cause exists for felony); G.S. 15A-145.4(e)(3) (barring expunction of nonviolent felony conviction if person has outstanding warrant or pending criminal case); G.S. 15A-173.2(b)(5) (barring certificate of relief if person has pending criminal charge).

A fourth principle is that courts sometimes disregard the literal language of a statute if a literal reading would attribute to the legislature an irrational purpose, thwart the obvious purposes of the statute, or lead to a result inconsistent with the policy of the legislation as a whole. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 46.7 (7th ed., Nov. 2016) and cases cited therein. The courts use this principle sparingly to avoid usurping the legislature’s role, but they occasionally find it necessary to effectuate the legislature’s intent. In a decision interpreting an ambiguous expunction statute, In re Spencer, 140 N.C. App. 776 (2000), the court expressed the idea:

[T]he court may interpolate a word, delete a word, or modify a word, when the legislative intent is clear and such construction is necessary to effectuate that intent. Further, “[w]here a literal interpretation of the language of a statute would contravene the manifest purpose of the statute, the reason and purpose of the law will be given effect and the strict letter thereof disregarded.” This is because “[w]here possible the language of a statute will be interpreted so as to avoid an absurd consequence. . . .” Accordingly, our Supreme Court has held that “[w]ords and phrases of a statute may not be interpreted out of context, but individual expressions ‘must be construed as a part of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.’”

Id. at 779 (citations omitted).

This approach may be necessary when language in a statute directly conflicts with other language and one provision cannot be literally construed without negating another. For example, G.S. 15A-145.2(c) authorizes expunction of certain controlled substance and drug paraphernalia convictions. It begins with a specific list of prior convictions that disqualify a person from obtaining an expunction. It also states that the court may grant relief if it finds, among other things, that the petitioner has no disqualifying convictions as set forth in that subsection. The statute later states, however, that a person must have no prior felony or misdemeanor convictions (other than a traffic violation). Giving literal effect to the latter, more general provision would negate the effect of the former, specific provision. This guide’s view is that the specific provision controls and the general provision should be construed consistently with the specific provision. This interpretation may be supported by other principles of statutory construction, but ultimately it rests on a choice between the terms that most likely express the General Assembly’s intent. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:17 (7th ed., Nov. 2016) (discussing doctrine of ejusdem generis, which provides that when general words in a statute follow or precede specifically enumerated terms about a particular subject, the general words are construed to embrace only matters similar in nature to the enumerated terms; this doctrine avoids making the specific terms superfluous while giving effect to the general words). For a further discussion of this statute, including an alternative interpretation, see infra Expunctions of Drug-Related Offenses: Conviction of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses.

In interpreting and applying the relief statutes, this guide considers prior versions of the statutes and changes enacted by the General Assembly, which can be helpful in determining the General Assembly’s intent. The following section, Overview: Recent Legislation, describes changes made by the General Assembly to the expunction statutes beginning in 2009, when legislative activity picked up. Summaries of earlier expunction legislation can be found in Appendixes: Previous Legislation.