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Relief from a Criminal Conviction (2017 edition)

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 became effective on December 1, 2012, which means it is available for offenses and convictions that occurred before or after that date. See S.L. 2012-191 (H 1023) (amended by S.L. 2014-119 (H 369)).

“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 See generally Kyprianides v. Martin, 234 N.C. App. 665 (2014) (unpublished) (finding that because convictions for misdemeanor cruelty to animals did not fall into excluded categories, they could be expunged under G.S. 15A-145.5).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 meets 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. Although North Carolina appellate decisions have not addressed the exercise of discretion in expunction cases, decisions from other jurisdictions and in other contexts suggest possible limits. 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), distinguished by W.R. v. State, 87 N.E.3d 30 (Ind. Ct. App. 2017); 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). 

Most expunction statutes provide that an expunction allows a person to 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 a record of expunctions 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); see also AOC-CR-280 (Dec. 2017) (law enforcement application for verification of expunction). But see G.S. 17C-13(b) (allowing certifying commission to consider expunged felony convictions only); G.S. 17E-12(b) (to same effect).

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 10 years after the date of the conviction for a nonviolent felony or five years for a nonviolent misdemeanor or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” (Effective for petitions filed on or after December 1, 2017, the waiting period was reduced from 15 years to the indicated number of years. S.L. 2017-195 (S 445).) One interpretation is that the person always must wait 10 or 5 years after completing his or her sentence, which necessarily will be at least 10 or 5 years after the date of conviction and usually longer. An alternative interpretation is that the statute requires that a person wait until (i) 10 or 5 years, depending on the offense, have passed from the date of conviction or (ii) the person completes the terms of his or her sentence, whichever occurs later. Under this interpretation, the person always must wait 10 or 5 years from the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within 10 or 5 years of conviction, he or she must wait any additional time it takes to complete the sentence. Under this approach, the provision would not require the person to wait an additional 10 or 5 years after completing his or her sentence. For a further discussion of expunction statutes with two-part waiting periods, see infra 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 10 or 5 years after date of conviction, depending on whether offense is felony or misdemeanor, 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.