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Relief from a Criminal Conviction

Nonviolent Felony Convictions for Offenses Committed before Age 18

G.S. 15A-145.4 authorizes expunction of a conviction of a nonviolent felony by a first offender who was under age 18 at the time of the offense (see Table 2). This type of expunction was added by S.L. 2011-278 (S 397) and was modified in minor respects by S.L. 2012-191 (H 1023). The initial legislation states, without further qualification, that it is effective December 1, 2011; therefore, a person who satisfies the statutory criteria may obtain an expunction whether the offense or conviction occurred before or after that date.

“Nonviolent felony” is defined in G.S. 15A-145.4(a).[1] To meet this definition and therefore be eligible for an expunction, an offense may not fall into one of several categories. For example, an offense cannot be a Class A through G felony, which means that only Class H and I felonies are eligible for expunction (except that a person may obtain an expunction of a prayer for judgment continued of certain Class G, H, or I drug convictions). A conviction of a Class H or I felony breaking and entering offense, if committed before age 18, is subject to expunction. Compare Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions (disallowing expunction of felony breaking and entering offenses under G.S. 15A-145.5). G.S. 15A-145.4(b) states that a person may obtain an expunction of multiple nonviolent felonies for which a person is convicted at the same session of court if none of the offenses occurred after the person had already been served with criminal process for the commission of a nonviolent felony.

Most expunction statutes provide that the court shall or must grant an expunction petition if the court finds that all of the statutory requirements have been met. G.S. 15A-145.4(e) states that the court may grant an expunction of a nonviolent felony conviction if the statutory requirements are satisfied. Use of the term “may” appears to give the court some discretion to deny an expunction petition even if the petitioner has met all of the statutory requirements. See also G.S. 15A-145.4(d) (requiring that the judge review petitioner’s juvenile record, but petitioner’s juvenile record is not listed as a condition for granting or denying an expunction petition). The statute does not specify the possible grounds for denial beyond the statutory requirements. See generally Cline v. State, 61 N.E.3d 360 (Ind. Ct. App. 2016) (finding that judge abused discretion in denying expunction in light of evidence presented in favor of expunction and remedial purpose of measures enacted by legislature); People v. Satterwhite, 746 N.E.2d 1238 (Ill. Ct. App. 2013) (holding that judge abused discretion in denying expunction where decision was not based on statutory eligibility requirements or on record evidence of factors justifying denial); see also State v. Thomas, 225 N.C. App. 631 (2013) (in cases subject to sex offender registration, judge may order satellite-based monitoring where Department of Correction (DOC) risk assessment determines that it is not necessary, but judge’s findings must be supported by competent record evidence and must concern matters not already taken into account in DOC’s risk assessment). Although not specifically required by G.S. 15A-145.4, it may be the better practice for the court to make a finding of its reasons for denial. Compare G.S. 15A-145.5(c) (using the term “may” for expunctions of older nonviolent felonies and misdemeanors and providing that an order denying a petition must include a finding “as to the reason for the denial”).

Most expunction statutes also provide that an expunged record may not be used in future proceedings and that the person may take the position that he or she has no such record without being held to have committed perjury or otherwise given a false statement. G.S. 15A-145.4(f) creates a limited exception to that general approach, stating that a person seeking law enforcement certification in North Carolina must disclose to the certifying commission any felony convictions expunged pursuant to G.S. 15A-145.4. State and local law enforcement agencies, as well as the law enforcement certifying commissions, also may obtain records expunged pursuant to G.S. 15A-145.4 for employment and certification purposes and may ask applicants about those matters. See G.S. 15A-151(a)(4), (5), (6); G.S. 15A-153(c), (e); G.S. 17C-13(b); G.S. 17E-12(b); see also AOC-CR-280 (Oct. 2013) (law enforcement application for verification of expunction under G.S. 15A-145.4).

The wording of G.S. 15A-145.4 raises a number of questions common to other relief statutes. Because eligibility for an expunction depends on the class of the offense to be expunged, the question has arisen whether the court should consider the class of offense at the time of conviction or the class at the time of the petition for expunction. This guide’s view is that the class of offense at the time of conviction controls. See infra Appendixes: Frequently Asked Questions (Offense Class).

Like many relief statutes, G.S. 15A-145.4 contains a waiting period with two parts. G.S. 15A-145.4(c) states that a 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.” This guide’s view is that the statute requires that a person wait until (i) four years have passed from the date of conviction or (ii) the person completes the terms of his or her sentence, whichever occurs later. Under this formulation, the person always must wait four years from the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within four years of conviction, he or she must wait any additional time it takes to complete the sentence. The provision does not require the person to wait an additional four years after completing his or her sentence. This interpretation, which this guide favors for all of the expunction statutes with two-part waiting periods, is discussed in greater detail in Appendixes: Frequently Asked Questions (Waiting Periods).

G.S. 15A-145.4 treats traffic violations differently than other criminal convictions. First, a traffic violation is not a bar to expunction of a conviction under G.S. 15A-145.4. This guide takes the view that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor conviction under Chapter 20 of the General Statutes unless otherwise specified. Second, G.S. 15A-145.4 does not exclude traffic violations from the types of convictions that may be expunged except for a felony offense involving a commercial vehicle and, effective for petitions filed or pending on or after December 1, 2015, a felony offense involving impaired driving as defined in G.S. 20-4.01(24a). See S.L. 2015-150 (H 273). The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

 

Table 2. Nonviolent Felony Convictions for Offenses Committed before Age 18

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction of nonviolent felony as defined in G.S. 15A-145.4(a), excluding
    • a Class A through G felony, except for certain PJCs listed below;
    • a felony that includes assault as an element;
    • a felony requiring sex offender registration, whether or not the person is currently required to register;
    • a felony involving certain sex-related or stalking offenses;
    • a felony under G.S. Ch. 90 involving methamphetamine, heroin, or sale, delivery, or possession with intent to sell or deliver cocaine, except that a person may obtain an expunction of a PJC for a Class G, H, or I felony in this category;
    • a felony involving certain racially motivated offenses;
    • a felony under G.S. 14-401.16 (contaminating food or drink);
    • a felony in which a commercial vehicle was used; and
    • a felony involving impaired driving as defined in G.S. 20-4.01(24a) (effective for petitions filed or pending on or after Dec. 1, 2015)
  • Offense occurred before age 18
  • No prior felony or misdemeanor conviction other than for traffic violation
  • Petition may not be filed earlier than four years after date of conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later
  • Good moral character and no felony or misdemeanor conviction other than for traffic violation since conviction
  • No outstanding warrants or pending criminal cases
  • Performance of 100 hours of community service after conviction, preferably related to conviction
  • No outstanding restitution orders or judgments representing restitution
  • High school diploma or equivalent
  • No prior expunction as shown by the records of the N.C. Administrative Office of the Courts

 



[1] In 2012, the General Assembly modified the definition of “nonviolent felony.” These changes apply to expunction petitions filed on or after December 1, 2012, and are incorporated in Table 2. The table does not include the earlier definition because it is unlikely that any petitions filed before December 1, 2012, are still pending.