Parking Alert: South Road Construction

Partial road barriers have been placed at the intersection of South Road and Country Club Road due to a summer construction project. The School’s parking deck is open and accessible from South Road for the duration of the project by driving between the two barriers and entering the parking gate immediately on the left.

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Relief from a Criminal Conviction

Older Nonviolent Misdemeanor and Felony Convictions

G.S. 15A-145.5 authorizes expunction of older nonviolent misdemeanor and felony convictions (see Table 3). This type of expunction was added by S.L. 2012-191 (H 1023) and is effective for petitions filed on or after December 1, 2012; therefore, a person who satisfies the statutory criteria may obtain an expunction whether the offense or conviction occurred before or after that date. The statute was amended by S.L. 2014-119 (H 369) to make some offenses ineligible for expunction.

“Nonviolent felony” and “nonviolent misdemeanor” are defined in G.S. 15A-145.5. To meet these definitions and therefore be eligible for an expunction, an offense may not fall into one of several categories—for example, it cannot be a Class A through G felony or a Class A1 misdemeanor, which leaves only Class H and I felonies and Class 1, 2, and 3 misdemeanors eligible for expunction. See generally Kyprianides v. Martin, 234 N.C. App. 665 (2014) (unpublished) (finding that because convictions for misdemeanor cruelty to animals did not fall into excluded categories, they could be expunged under G.S. 15A-145.5). Some Class H and I felonies are excluded from the definition of nonviolent felony. For petitions filed on or after December 1, 2014, a person may not obtain an expunction of a Class H felony conviction of breaking and entering a building in violation of G.S. 14-54(a) or (a1) or a Class I felony conviction of breaking and entering a vehicle in violation of G.S. 14-56. A person may obtain an expunction of multiple nonviolent felony and nonviolent misdemeanor convictions under G.S. 15A-145.5(b) if the person was convicted of the offenses at the same session of court and none occurred after the person had already been served with criminal process for the commission of a nonviolent felony or nonviolent misdemeanor.

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-145.5(c) states that the court may grant an expunction of a nonviolent felony or nonviolent misdemeanor conviction if the statutory requirements are satisfied. Use of the term “may” gives the court some discretion to deny an expunction petition even if the petitioner has met all of the statutory requirements.[1] An order denying a petition must include a finding “as to the reason for the denial.” 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 in cases in which 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).

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-145.5(d) 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 and misdemeanor convictions expunged pursuant to G.S. 15A-145.5. State and local law enforcement agencies, as well as the law enforcement certifying commissions, also may obtain records expunged pursuant to G.S. 15A-145.5 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-145.5 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-145.5 contains a waiting period with two parts. G.S. 15A-145.5(c) states that a petition may not be filed “earlier than 15 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) 15 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 15 years from the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within 15 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 15 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-145.5 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-145.5. 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-145.5 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 misdemeanor or 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 3. Older Nonviolent Misdemeanor and Felony Convictions

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction of nonviolent misdemeanor or felony as defined in G.S. 15A-145.5(a), excluding
    • a Class A through G felony or Class A1 misdemeanor;
    • an offense that includes assault as an element;
    • an offense requiring sex offender registration, whether or not the person is currently required to register;
    • an offense 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;
    • an offense involving certain racially motivated offenses;
    • an offense under G.S. 14-401.16 (contaminating food or drink);
    • an offense under G.S. 14-54(a), 14-54(a1), or 14-56 (effective for petitions filed on or after Dec. 1, 2014);
    • a felony in which a commercial vehicle was used;
    • an offense involving impaired driving as defined in G.S. 20-4.01(24a) (effective for petitions filed or pending on or after Dec. 1, 2015); and
    • an attempt to commit any of the above offenses (effective for petitions filed on or after Dec., 1, 2014)
  • No prior felony or misdemeanor conviction other than for traffic violation
  • Petition may not be filed earlier than 15 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
  • No outstanding restitution orders or judgments representing restitution
  • No prior expunction under G.S. 15A-145, G.S. 15A-145.1, G.S. 15A-145.2, G.S. 15A-145.3, G.S. 15A-145.4, or G.S. 15A-145.5


[1] The legislative history of the bill, H 1023, shows that the General Assembly’s use of the term “may” was intentional. The first edition of the bill used the term “shall,” but the second and subsequent editions used the term “may” and required the court to make findings if it denied a petition.