CCRC Board member John Rubin of the University of North Carolina faculty has provided us with a detailed account of NC’s brand new Second Chance Act, and we are pleased to post it below.  We are particularly pleased to see North Carolina join the 13 other states that have enacted automatic record relief for dismissals and acquittals, and remove its prior felony bar to eligibility.  It appears that only a handful of states still retain this unfortunate provision, including Rhode Island, Oklahoma, and West Virginia.  We look forward to studying the new law in detail, and will shortly incorporate its provisions into the NC profile and 50-state charts from the Restoration of Rights Project.

We are also pleased to introduce our new 50-state chart on “Process for expunging or sealing non-convictions,” which indicates that there are now a total of 20 states that deliver relief for dismissals and acquittals that is either automatic or expedited at time of disposition.  At least half of these laws have been enacted in the past two years.  But there are still 24 states and D.C. that require people to file petitions, satisfy complex eligibility requirements, and jump through a variety of procedural hoops to limit public access to these records, and one state (Arizona) and the federal system offer no relief at all.  There is no excuse for allowing these records to remain publicly available and the source of discrimination, when the government was unwilling or unable to prosecute their charges to conviction.  We will continue to work for reforms based on the Model Law on Non-Conviction Records, and are happy to offer advice and assistance to any jurisdiction that decides to take on these issues.

A Second Chance in North Carolina Through Expanded Record Clearance
John Rubin
© UNC School of Government

North Carolina continues to make gradual strides in helping people clear their criminal records and enhance their opportunities going forward. Last week the Governor signed the Second Chance Act, S.L. 2020-35 (S 562), which passed the General Assembly unanimously. The Second Chance Act expands expunction opportunities and streamlines the process for people trying to clear their records. The product of negotiation and compromise, it reflects the interests of prosecutors, law enforcement, and court administrators as well. The act illustrates many of the record clearance issues being considered around the country, including automatic expunction of nonconviction records (to begin in North Carolina at the end of 2021), removal of barriers to expunctions of nonconviction records (most notably, no longer will prior convictions, whether for a felony or misdemeanor, be a bar), somewhat greater opportunities to expunge older convictions if “nonviolent,” and greater access by prosecutors and law enforcement to expunged case information. This summary does not try to explore the many nooks and crannies in the legislation. It is a first pass at describing the changes.

Convictions of Juveniles before “Raise the Age”

Section 1 of the Second Chance Act addresses an unresolved discrepancy resulting from North Carolina’s passage of “Raise the Age” legislation—namely, the difference in treatment of 16- and 17-year olds convicted as adults before the “Raise the Age” legislation took effect December 1, 2019, and juveniles who are charged with similar offenses after that date and whose cases remain in the juvenile system, shielded from public view. My School of Government colleague, Jacqui Greene, wrote a blog about the interrelationship between the Raise the Age provisions and the new juvenile expunction provisions.

New G.S. 15A-145.8 applies to convictions of all Class H and I felonies and all misdemeanors for offenses committed before December 1, 2019, with two exceptions. A person may not obtain an expunction under G.S. 15A-145.8 of a conviction of a violation of the motor vehicle laws under Chapter 20 of the North Carolina General Statutes, including impaired driving offenses, or of a conviction of an offense requiring registration as a sex offender under Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.

To be eligible for an expunction, the person must meet the following requirements:

• the offense occurred before December 1, 2019;
• the offense occurred when the person was less than 18 years old and at least 16 years old;
• any active sentence, period of probation, and post-release supervision ordered for the offense has been served; and
• the person has no restitution orders for the offense or outstanding civil judgments representing amounts ordered for restitution for the offense.

If the person meets these criteria, expunction is mandatory. See G.S. 15A-145.8(c) (stating that court “shall” order an expunction).

The statute contains no limit on the number of expunctions that may be obtained or the number of convictions that may be expunged. See also G.S. 15A-145.8(d) (allowing expunction of multiple convictions). The statute imposes no bar to relief based on convictions of other offenses and no waiting period before filing. Because the statute applies to offenses committed before December 1, 2019, a person can obtain an expunction whether the conviction occurs before or after that date.

A petition for expunction under G.S. 15A-145.8 may be filed by the person with the conviction or by the District Attorney. If the affected person files for an expunction and is not indigent, a $175 fee is due on filing. If a petition is filed by the District Attorney, no filing fee is due. The authorization for District Attorney filing enables interested prosecutors to petition on behalf of all juveniles eligible for relief.

The victim has the right to be heard at the hearing on a petition; however, expunction is mandatory if the petition satisfies the statutory criteria. No later than September 1, 2020, the Administrative Office of the Courts must develop expunction forms to implement G.S. 15A-145.8.

Dismissals and Acquittals

Section 3 of the Second Chance Act eliminates barriers to the expunction of nonconviction records—that is, dismissals and acquittals—and streamlines the expunction process.

Automatic expunction of dismissals and acquittals. Effective for charges disposed of on or after December 1, 2021, new G.S. 15A-146(a4) provides for automatic expunction of dismissals and acquittals if all charges in the case are dismissed by the prosecutor without leave (for charges that may be dismissed with “leave,” see G.S. 15A-932); all charges are dismissed by the court; or all charges result in a finding of not guilty or not responsible. The new automatic expunction statute imposes no other preconditions—no waiting period, no limit on the number of expunctions, and no disqualification based on prior convictions, whether for a felony or misdemeanor. This last circumstance is particularly significant. Previously, a person could not obtain an expunction of a dismissal if he or she had a prior felony conviction.

Automatic expunction covers both a narrower and broader range of cases than expunctions by petition. G.S. 15A-146(a4) provides that no case with a felony charge that was dismissed pursuant to a plea agreement is subject to automatic expunction. A person must proceed by petition, discussed below. Automatic expunction is available for both criminal charges and for charges of infractions. In contrast, for expunctions by petition (under the previous and current version of G.S. 15A-146), infractions can be expunged in only one circumstance, a violation of certain alcohol laws before December 1, 1999.

G.S. 15A-150(b) has required the clerk of court to notify law enforcement and other agencies of expunction orders. The revised subsection states that these notice requirements do not apply to automatic expunctions. See also G.S. 15A-146(c) (stating in revised subsection that notice requirements do not apply). An uncodified part of Section 3 of the Second Chance Act directs the Department of Public Safety, Department of Justice, and Administrative Office of the Courts to report to the General Assembly by October 1, 2021, on the feasibility of automating implementation of expunction orders by state agencies. The provision does not address automated expunction by local agencies.

Expunction of dismissals and acquittals by petition. Revised G.S. 15A-146 contains three different provisions for petitioning for expunctions, effective for petitions filed on or after December 1, 2020. As with the new expunction provisions for juvenile convictions, a petition may be filed by the affected person or by the District Attorney. As with automatic expunctions, the statute imposes no waiting period, no limit on the number of expunctions, and no disqualification based on prior convictions, whether for a misdemeanor or felony. There is no requirement of notice to the alleged victim. As under current law, there is no filing fee except for dismissals pursuant to a deferred prosecution agreement or a conditional discharge. See G.S. 15A-146(d). Effective June 25, 2020, a judge may grant a petition for an expunction of a dismissal or acquittal without a hearing. See G.S. 15A-146(a6). This hearing provision therefore applies to expunction petitions under current G.S. 15A-146 and, once effective, revised G.S. 15A-146.

Subsection (a) of G.S. 15A-146 applies to dismissals in cases involving a single charge. The court must grant an expunction petition when a single charge is dismissed. Id. (stating that court “shall” order an expunction).

Subsection (a1) of G.S. 15A-146 applies to cases involving multiple charges. If all charges are dismissed, the court must grant an expunction petition. The subsection states that if any charge resulted in a conviction on the day of dismissal or has not yet reached final disposition, the court may order expunction of any charges that were dismissed. Id. (stating that court “shall” order an expunction in the first instance and “may” order an expunction in the second instance).

Subsection (a2) of G.S. 15A-146 applies to acquittals in cases involving single or multiple charges. If a person is found not guilty of any charges and any related criminal charges have reached final disposition, the court must grant an expunction petition. Id. (stating that court “shall” order expunction).

G.S. 15A-146(a5) states that in all these instances an arresting agency may maintain its investigative records related to an expunged charge.

Convictions of Older Nonviolent Felonies and Nonviolent Misdemeanors

G.S. 15A-145.5 has authorized expunctions of convictions of older nonviolent felonies and nonviolent misdemeanors. The definition of “nonviolent” offense is unchanged. It means an offense that is not one of a number of listed offenses in G.S. 15A-145.5(a), including Class A through G felonies, Class A1 misdemeanors, offenses having assault as an essential element, impaired driving offenses, and others. Although the types of offenses subject to expunction remain the same, the Second Chance Act expands the ability of people to obtain an expunction for these offenses, effective for petitions filed on or after December 1, 2020.

Section 4 of the act revises G.S. 145.5 to create three categories of expunctions:

• for one nonviolent misdemeanor conviction after five years;
• for more than one nonviolent misdemeanor conviction after seven years; and
• for one nonviolent felony conviction after ten years.

For all three categories, multiple convictions count as “one” conviction if the convictions occurred during the same session of court. See G.S. 15A-145.5(b). Eliminated is the previous sequencing provision treating multiple convictions as one conviction only if the offenses occurred before service of process for other offenses. For all three categories, a prior expunction is a bar to relief if the expunction was granted under G.S. 15A-145.5, not other expunction statutes, and the offense was committed after the date of the previous order of expunction. The District Attorney must give notice of the petition to the victim, who has the right to be heard. If the judge denies the petition, he or she must make findings about the reason for the denial.

Several preconditions apply to all three categories, such as a requirement that the petitioner is of good moral character and has no pending criminal charges. Each category has its own conviction-related criteria.

One nonviolent misdemeanor conviction after five years. The conviction-related criteria for expunction of one nonviolent misdemeanor conviction are:

• The petition may not be filed earlier than five years after the date of the conviction or when any active sentence, period of probation, or post-release supervision has been served, whichever occurs later. This phrasing of the waiting period remains the same as the previous phrasing of the waiting period. See Frequently Asked Questions in John Rubin, Relief from a Criminal Conviction (2018 ed.).
• The person must not have a conviction for a felony or misdemeanor other than for a traffic offense during the five-year waiting period. See S. 15A-145.5(c2)(4).
• Other than the conviction to be expunged, the person must not have a conviction at any time for a felony or misdemeanor other than for a traffic violation. G.S. 15A-145.5(c2)(6)a.

More than one nonviolent misdemeanor conviction after seven years. The conviction-related criteria for expunction of more than one nonviolent misdemeanor conviction are:

• The petition may not be filed earlier than seven years after the date of the person’s last conviction, other than for a traffic offense, or seven years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later. This phrasing seems to mean that the person will need to wait at least seven years after serving any sentence, which necessarily will end on or after the date of the conviction.
• The person must not have a conviction for a felony or misdemeanor other than for a traffic offense during the seven-year period. See S. 15A-145.5(c2)(4).
• The person must not have a conviction for a misdemeanor or felony at any time that is an exception to the term “nonviolent” felony or misdemeanor. See S. 15A-145.5(c2)(6)b.

One nonviolent felony conviction after ten years. The conviction-related criteria for expunction of one nonviolent felony conviction are:

• The petition may not be filed earlier than ten years after the date of the conviction or ten years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.
• The person must not have a conviction for a felony or misdemeanor other than for a traffic offense during the ten-year period. See S. 15A-145.5(c3)(4).
• The person must not have a conviction for another felony at any time or a conviction for a misdemeanor at any time that is an exception to the term “nonviolent” misdemeanor. See S. 15A-145.5(c3)(6).

Access by Prosecutors and Law Enforcement to Record of Expunction

Along with prior expansions of expunction opportunities, the General Assembly enacted G.S. 15A-151.5 to give prosecutors access to the record of expunctions in most circumstances for expunctions granted on or after July 1, 2018. That statute specified that prosecutors could use an expunged conviction to determine a person’s prior record level if sentenced for a new offense.

Effective December 1, 2020, Section 2 of the Second Chance Act revises G.S. 15A-151.5 in two main respects. First, it gives prosecutors access to the record of expunctions granted under G.S. 15A-145.8, the new statute on expunctions of juvenile convictions, and under G.S. 15A-145.7, a statute passed in 2019 on expunction of certain offenses by first offenders under 20 years old. Second, revised G.S. 15A-151.5 expands the purposes for which a prosecutor may use an expunged conviction to include: calculating prior conviction level in a misdemeanor case as well as prior record level in a felony case; serving as a prior conviction in an indictment for an habitual offense under G.S. 14-7.1 and G.S. 14-7.26; when a prior conviction raises a subsequent offense to a higher level; determining eligibility for a conditional discharge under G.S. 90-96(a); and when permissible in a criminal case under Rule 404(b) or Rule 609 of the North Carolina Rules of Evidence. The revised statute also states that the expunction of a conviction is not a basis for challenging a conviction or sentence entered before the expunction.

G.S. 15A-151(a) has allowed the Administrative Office of the Courts to provide records of expunctions to law enforcement agencies and boards for employment and certification purposes. Effective December 1, 2020, the statute is revised to include expunctions under G.S. 15A-145.8, the new statute on expunctions of juvenile convictions.