This part of the guide provides answers to frequently asked questions about expunctions, certificates of relief, and other mechanisms for obtaining relief from a criminal conviction in North Carolina. Many questions are not specifically resolved by the North Carolina relief statutes. The answers reflect the interpretations of the author, John Rubin.
Expand All Collapse AllWAITING PERIODS: For expunction statutes that impose a waiting period based on when a person was convicted and completed his or her sentence, how should the waiting period be construed?
Most expunction statutes with a waiting period of this type are subject to two possible interpretations. One interpretation is that the statutes can be construed consistently—essentially, that the person may not file an expunction petition until the later of two events: (i) the passage of a specified number of years since the date of the conviction or (ii) completion of the person’s sentence. Under this interpretation, a person always must wait the specified number of years after the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within that time, he or she must wait any additional time it takes to complete the sentence. A second interpretation is that the statutes that include roman numerals in the above manner require this result but statutes without roman numerals lead to a different result—essentially, that the person must wait until the specified number of years have passed since the date of conviction and completion of the person’s sentence, whichever is later. Under this approach, the person always must wait the specified period of time after completing his or her sentence, which necessarily will be at least that amount of time after conviction and usually longer.
Two statutes with clear language are G.S. 15A-145 on expunctions of misdemeanors committed before age 18 or age 21 and G.S. 15A-145.1 on expunctions of gang offenses committed before age 18. Both incorporate roman numerals, like those above, into the waiting period language to make the requirements clear. Thus, G.S. 15A-145 states that a petition cannot be filed “earlier than: (i) two years after the date of the conviction, or (ii) the completion of any period of probation, whichever occurs later. . . .” The General Assembly added the roman numerals as part of a technical corrections bill in 2008, S.L. 2008-187, sec. 35 (S 1632). Before then, the statute stated that a petition could not be filed “earlier than two years after the date of the conviction or any period of probation, whichever occurs later. . . .” This phrasing was potentially unclear because it could be interpreted as requiring a defendant to wait two years after the date of conviction and the period of probation. The problem with that interpretation is that it made the language about the date of conviction superfluous. A person always completes his or her sentence, including probation, sometime after the date of his or her conviction; therefore, a person would always have to wait two years after completing probation. The roman numerals clarify that the statute requires the defendant to wait two years after the date of conviction and longer only if he or she has not completed probation.
G.S. 15A-145.1 contains the same clarifying roman numerals. That statute was enacted by the General Assembly in 2009 when it consolidated the expunction statutes. The General Assembly imported the waiting-period language, including the roman numerals, from the expunction provisions in the gang offense statute, G.S. 14-50.30. The General Assembly enacted the gang offense statute in 2008, the same year it made the technical correction to G.S. 15A-145, described above.
Expunction statutes enacted after 2008 do not use roman numerals. G.S. 15A-145.4(c), which was enacted in 2011 and allows expunction of nonviolent felonies committed before age 18, states that an expunction 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.” One interpretation of this provision is that the person always must wait four years after completing his or her sentence, which necessarily will be at least that amount of time after the date of conviction and usually longer. An alternative interpretation is that the provisions should be read consistently with the statutes that contain clarifying roman numerals. Thus, the person must wait four years after conviction and, if the defendant has not completed his or her sentence within that time, any additional time it takes to complete the sentence. The person would not have to wait four years after the date of conviction and the completion of the defendant’s sentence, which would render the conviction language superfluous.
G.S. 15A-145.5, which was enacted in 2012 and allows expunction of older nonviolent misdemeanors and nonviolent felonies, initially contained the same phrasing. Later, the statute was revised in a way that clarified the waiting period for most of the categories of expunctions but left the same phrasing for the third category. For expunction of a felony conviction, G.S. 15A-145.5(c)(2)a. states that a petition may not be filed earlier than “10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” For expunction of more than one misdemeanor conviction, G.S. 15A-145.5(c)(2) states that a petition may not be filed earlier than “seven years after the date of the person’s last conviction, other than a traffic offense not listed in the petition for expunction, or seven years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” For expunction of two or three felony convictions after 20 years, a category of relief added in 2021, G.S. 15A-145.5(c)(2)b. contains the same structure. The same structure applies to expunction of a felony breaking and entering conviction after 15 years, added in 2023, in G.S. 15-145.5(c)(2)a1. These formulations effectively make the sentence-completion date the starting date of the waiting period because a person’s sentence will always end at the same time and usually after the date of conviction. In contrast, for expunction of one misdemeanor conviction, G.S. 15A-145.5(c)(1) states that a petition may not be filed earlier than “five 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 phrasing is subject to the alternative interpretations discussed above. The General Assembly’s phrasing of the waiting period language for the other categories provides additional support for the “roman numeral” interpretation for expunction of one misdemeanor—that the person must wait (i) five years after the date of conviction or (ii) when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.
A final statute on expunction of prostitution offenses, passed in 2014 as part of a much larger act on sex trafficking, contains a similar ambiguity. It requires that “at least three years have passed since the date of conviction or the completion of any active sentence, period of probation, and post-release supervision, whichever occurs later.” G.S. 15A-145.6(b)(2)b. This phrasing may require that the person wait at least three years after completion of his or her sentence, which necessarily will be three years after conviction and usually longer. Alternatively, the provision could be read as requiring the petitioner to wait until either (i) three years have passed since the date of conviction or (ii) completion of his or her sentence, whichever occurs later.
EXPUNGED CONVICTIONS: Does an expunged conviction count as a prior conviction under statutes barring relief based on a prior conviction?
No. The purpose of an expunction, stated in various ways in the expunction statutes, is to restore a person to the status he or she occupied before conviction of the offense. An expunged conviction therefore does not constitute a conviction for purposes of determining whether a person has a prior disqualifying conviction. However, some expunction statutes provide that a prior expunction of a particular kind disqualifies a person from obtaining another expunction. For that reason, a prior expunction, if made a disqualifier by the particular statute, would preclude a person from obtaining another expunction.
Other relief statutes operate similarly. For example, a person may obtain a certificate of relief for three prior convictions if the person otherwise meets the criteria for relief. An expunged conviction, because it has been expunged, does not constitute a disqualifying conviction. In addition, a prior expunction does not disqualify a person from obtaining a certificate of relief because, in contrast to many of the expunction statutes, the certificate of relief statute does not list expunctions as disqualifiers.
NO CONTEST PLEAS: May a person obtain an expunction of a conviction based on a no contest plea? Does a conviction based on a no contest plea count as a prior conviction under statutes barring relief based on a prior conviction?
For convictions on or after July 1, 1975, a conviction based on a no contest plea is both subject to expunction and a bar to expunction of other matters if the plea is for an offense specified by the expunction statute. For convictions before July 1, 1975, the answer to each question may diverge.
In North Carolina, a person may be convicted of a criminal offense in three ways: by pleading guilty, by pleading no contest, or by pleading not guilty and being found guilty by a judge or jury. If a person enters a no contest plea, the person neither admits nor denies guilt, which limits the use of the criminal conviction in a later civil lawsuit against the person for the conduct alleged in the criminal case. See Michael G. Okun & John Rubin, Employment Consequences of a Criminal Conviction in North Carolina, Popular Gov’t, Winter 1998, at n.65 and accompanying text. In other respects, a conviction based on a no contest plea is like other criminal convictions, at least for convictions on or after July 1, 1975. Effective that year, the General Assembly revised the law to require the court to find a factual basis for the criminal charges before accepting a no contest plea and entering a judgment of conviction. S.L. 1973-1286 (H 256) (adding G.S. 15A-1022(c) requiring such a finding). Thus, on or after that date, a conviction based on a no contest plea includes an adjudication of guilt.
Before July 1, 1975, the court in a criminal case could impose a judgment and sentence based on a no contest plea but could not adjudicate the person guilty; without an adjudication of guilt, “there was not a conviction to be used in another case.” Davis v. Hiatt, 326 N.C. 462, 466 (1990) (reviewing case law and finding that after change in law a conviction based on a no contest plea counted as a conviction in later proceeding to revoke a driver’s license); State v. Outlaw, 326 N.C. 467, 468–69 (1990) (reviewing case law). The conviction should still be subject to expunction because the record will still show that the person has a conviction and will be viewed as such by employers, landlords, and others. In light of the above decisions, however, the conviction would not appear to constitute a prior conviction for the purpose of a prior-conviction bar because it does not involve an adjudication of guilt.
PRAYER FOR JUDGMENT CONTINUED (PJC): May a person obtain an expunction of a “true” PJC? Does a PJC count as a prior conviction under statutes barring relief based on a prior conviction?
A person should be able to obtain an expunction of a true PJC under the same circumstances as for an expunction of a final judgment of conviction, both for policy reasons and under the language of the statutes. The treatment of a PJC for the purpose of determining whether it is a bar to relief is not necessarily the same, however. The answer depends on the language of the particular statute and the cases interpreting it.
As with other expunction questions, trial courts’ treatment of PJCs may vary. A person interested in a future expunction may benefit more by obtaining a diversion (deferred prosecution or discharge and dismissal), which has more certain consequences.
Generally. A true PJC, in the sense used here, occurs when a defendant has pled guilty or has been found guilty and the court indefinitely continues the case without entering judgment. (A court sometimes will call its order a PJC when it imposes conditions amounting to punishment or when it briefly continues the case for later sentencing. The impact of these types of determinations is discussed below.) Although no judgment of conviction is entered, a true PJC is often the final disposition in the case.
At one time the effect of a PJC had a more settled meaning. It was viewed as a way for a judge, in the exercise of discretion, to lessen the impact of a criminal proceeding. By withholding judgment in a case that he or she considered appropriate, a judge could keep a person from having a conviction and bearing the attendant consequences. See, e.g., Barbour v. Scheidt, 246 N.C. 169 (1957) (recognizing that PJC is proper where court is satisfied, by reason of extenuating circumstances, sufficient cause, or question of law, that public justice does not require judgment and sentence). In Smith v. Commonwealth, 113 S.E. 707, 709–10 (Va. 1922), cited with approval in Barbour, the court explained the distinction between a guilty verdict and a judgment of conviction following a determination of guilt. A guilty verdict allows further action in the proceedings, such as entry of judgment and sentence. It also triggers the opportunity for relief, such as a pardon. To trigger punitive consequences in other proceedings, however, the “great weight of authority” requires that a judgment of conviction be entered.
Beginning in the 1990s, North Carolina law began to shift. In a series of cases, the North Carolina appellate courts began treating a true PJC as a conviction for the purpose of other proceedings. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (concluding that State could impeach defendant with PJC as a conviction under N.C. Evidence Rule 609); Britt v. North Carolina Sheriffs’ Educ. and Training Standards Comm’n, 348 N.C. 573 (1998) (deferring to commission’s interpretation that PJC constituted conviction and upholding revocation of deputy sheriff’s certification); State v. Hatcher, 136 N.C. App. 524 (2000) (allowing true PJC to be used as prior conviction under structured sentencing for new offense); Friend v. State, 166 N.C. App. 99 (2005) (holding that PJC for felony barred issuance of pistol permit); Mace v. North Carolina Dept. of Insurance, 270 N.C. App. 30 (2020) (holding that PJC triggered requirement to report by insurance agent to insurance department). Compare State v. Southern, 314 N.C. 110 (1985) (holding under Fair Sentencing Act that true PJC could not be used as prior conviction). As a result, although a PJC may seem beneficial to a defendant, it often carries the consequences of a criminal conviction. See also John Rubin, Does a “Prayer for Judgment Continued” Differ Very Much from a “Prayer for Judgment Granted?”, N.C. Crim. L., UNC Sch. of Gov’t Blog (Mar. 3, 2020).
The North Carolina courts have continued to recognize that, if the applicable laws so provide, a PJC does not constitute a conviction for the purpose of other proceedings. See, e.g., Florence v. Hiatt, 101 N.C. App. 539 (1991) (recognizing that true PJC did not constitute final conviction under statute authorizing DMV to suspend or revoke a person’s driving privileges). Recent court decisions as well as legislative changes, discussed further below, have reinforced this possibility, recognizing circumstances in which a true PJC should not be treated as a conviction.
Expunction of PJC. Both policy reasons and the pertinent statutory language support expunction of a true PJC. See also Jamie Markham, Can You Expunge a PJC?, N.C. Crim. L., UNC Sch. of Gov’t Blog (July 29, 2010) (suggesting this result). Although it does not result in a judgment of conviction, a true PJC carries many of the same criminal and civil consequences, such as greater punishment in a subsequent criminal case or loss of an employment license, as indicated by the rulings above. Expunction of a PJC can therefore be as important to a person as expunction of a final judgment of conviction. It seems unlikely that the General Assembly would have intended for a person who receives a PJC, which essentially is an act of judicial leniency, to be worse off than a person who receives a judgment and sentence.
Praying judgment by the defendant and then petitioning for an expunction is not a viable substitute. The resulting judgment would appear as a new conviction, which could have lingering consequences despite a later expunction. Even if advisable, praying judgment may not be permissible. See generally State v. Doss, 268 N.C. App. 547 (2019) (observing that the defendant consented to the PJC in district court, which waived any right to appeal, and that it would be unfair years later for the defendant to ask the court to enter judgment and then appeal the judgment to superior court, where the State would no longer have the evidence to proceed), summarized here.
The wording of the expunction statutes supports expunction of a PJC. For example, G.S. 15A-145 allows expunction of a misdemeanor conviction if the person “pleads guilty to or is guilty of a misdemeanor other than a traffic violation.” The statute does not require a judgment of conviction. This language corresponds to the procedure for a PJC, in which a person pleads guilty to or is found guilty of the offense and the court withholds entry of judgment. Other expunction statutes likewise authorize expunction when a person pleads guilty or is found guilty. See G.S. 15A-145.1(a) (gang offense); G.S. 15A-145.2(c) (controlled substance and drug paraphernalia offenses); G.S. 15A-145.3(c) (toxic vapors offense); G.S. 15A-145.4(c) (nonviolent felony committed before age 18).
Some of the newer expunction statutes do not specifically refer to guilty pleas or findings of guilt. See G.S. 15A-145.5 (older felonies and misdemeanors); G.S. 15A-145.6 (prostitution offenses); G.S. 15A-145.8A (adult convictions of juveniles); G.S. 15A-145.9 (convictions of human trafficking victims). Instead, they refer generally to expunction of a conviction. Since these statutes were intended to expand the right to an expunction, and they do not include clear language to the contrary, this guide’s view is that the General Assembly intended for them to be construed consistently with the other relief statutes and allow expunctions of PJCs in the same circumstances as judgments of conviction. See supra Overview: Interpreting Relief Statutes (discussing importance of considering overall legislative scheme in construing language in individual statutes within the scheme).
In State v. McDonald, 290 N.C. App. 92 (2023), the court held that a true PJC was not a final judgment and the State could later pray judgment (that is, request that the court enter judgment). In the circumstances of the case, the court found a delay of several years before the State requested judgment was not unreasonable. The result in McDonald does not alter this guide’s view that a PJC is eligible for an expunction under the expunction statutes governing convictions. The reason is that the law on PJCs and the law on expunctions are independent. The State’s ability to pray judgment on a true PJC does not override the statutory authority to expunge eligible matters after any required waiting period, including true PJCs when they qualify for expunction under the applicable statutes on convictions.
Prior PJC as potential bar. For the sake of consistency, it would be simpler to interpret the impact of a PJC in the same way throughout the relief statutes. However, both the General Assembly and the courts have identified circumstances in which a PJC should not be treated as a conviction. In some instances, the law says so explicitly; in others, the courts have reached this result through interpretation. For the purpose of determining whether a PJC bars relief or triggers adverse consequences, the relief statutes can be divided into three basic categories.
One category of statutes expressly provides that a PJC bars relief. The statute authorizing restoration of firearm rights is an example. It requires the court to deny relief if, among other things, the petitioner has received a prayer for judgment continued for a misdemeanor crime of violence, G.S. 14-415.4(e)(6), or a prayer for judgment continued for a felony, G.S. 14-415.4(e)(7). Even this seemingly clear statement is not free from uncertainty. North Carolina’s prohibition on possession of a firearm by a person convicted of a felony, which is lifted by restoration, defines a conviction as a “final judgment.” G.S. 14-415.1(b). See also John Rubin, Does a “Prayer for Judgment Continued” Differ Very Much from a “Prayer for Judgment Granted?”, N.C. Crim. L., UNC Sch. of Gov’t Blog (Mar. 3, 2020) (discussing state and federal decisions on impact of PJC on possession of a firearm by a person convicted of a felony). In other contexts, discussed below, the North Carolina courts have held that a PJC does not trigger provisions requiring a final judgment.
A second category of statutes provides for the opposite result. The most prominent example is in Chapter 20 of the General Statutes, which treats a PJC as a conviction for Chapter 20 purposes, such as driver’s license consequences, only if it is a person’s third PJC within a five-year period or involves a person with a commercial driver’s license or an offense in a commercial motor vehicle. G.S. 20-4.01(4a). An example is the statute on expunction of a nonviolent felony committed before age 18. It provides that certain drug offenses are not “nonviolent felonies” and therefore are not eligible for expunction. However, in 2012 (in S.L. 2012-191 (H 1023)), the General Assembly amended the statute to provide that PJCs for otherwise-excluded drug offenses are eligible for expunction. G.S. 15A-145.4(a)(6).
Some statutes do not specifically refer to PJCs, but the courts have found that other language or principles exempt them from the consequences that follow a conviction. In Walters v. Cooper, 226 N.C. App. 166 (2013), aff’d per curiam, 367 N.C. 117 (2013), the court recognized that the sex offender registration statutes define a “reportable conviction,” which triggers registration obligations, as a “final conviction.” Because a PJC—in Walters for misdemeanor sexual battery—is not a final conviction, it does not trigger those obligations. See also Little v. Little, 226 N.C. App. 499 (2013) (holding that collateral estoppel principles did not permit court to rely on PJC for assault as basis for issuing domestic violence protective order because PJC is not a final judgment); Guzman-Gonzalez v. Sessions, 894 F.3d 131 (4th Cir. 2018) (holding that PJC was not conviction for immigration purpose of cancellation of removal; assessment of costs did not constitute “punishment” or “penalty” as required by definition of conviction).
The third and by far largest category of relief statutes is silent about the effect of a PJC, stating generally that a prior conviction of certain offenses is a disqualifier. Most of the relief statutes discussed in this guide fall into this third category. See, e.g., G.S. 15A-145.4(c) (allowing expunction if person “has not previously been convicted” of specified offenses). On the one hand, the trend in the law has been to treat general references to convictions as including PJCs. Under this approach, a PJC would be a bar under relief statutes stating generally that a conviction is a bar. On the other hand, recent cases have looked more closely at the particular language at issue—for example, in the cases cited above, at the requirement that the conviction be “final.” The relief statutes do not use that term but do employ different language in describing the matters subject to expunction and the prior matters that bar expunction. For the former, most of the statutes refer to findings of guilt and guilty pleas, with or without a judgment of conviction. For the latter, the statutes refer to convictions. No appellate decisions have addressed the impact of a prior PJC in the context of relief statutes, but the policies furthered by those statutes may support an interpretation that effectuates a judge’s act of leniency in granting a PJC and makes relief more widely available.
Other determinations called PJCs. The discussion above concerns a true PJC (that is, the defendant has pled guilty or has been found guilty and the court has indefinitely continued the case without entering judgment). Sometimes, a court will call its order a PJC even when it imposes conditions amounting to punishment. Unlike a true PJC, such an order is considered a judgment of conviction. See State v. Popp, 197 N.C. App. 226, 228 (2009) (holding that a PJC with conditions amounting to punishment “loses its character as a PJC and becomes a final judgment”). A PJC that constitutes a judgment of conviction is subject to expunction like any other conviction. It also may bar relief under statutes that make a prior conviction a disqualifier. If the latter situation occurs, a person may need to pursue other relief, such as a motion for appropriate relief to vacate the conviction.
In some instances, the court may continue a case for sentencing after an adjudication of guilt. Such an order is neither the final disposition in the case nor a judgment of conviction. A person therefore would have to wait until the court enters judgment and sentence before seeking an expunction. The adjudication of guilt, however, may bar relief or trigger adverse consequences without entry of judgment. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (allowing State to impeach defendant under N.C. Evidence Rule 609 where defendant pled guilty and court continued case for sentencing).