Criminal Law and Procedure; Youthful Offenders; Expungement; Records and Recording Laws

Subject:

Criminal Law and Procedure; Youthful Offenders; Expungement; Records and Recording Laws.

Requested By:

The Honorable Russell G. Walker, Jr. District Attorney Nineteenth-B Prosecutorial District

Question:

Where a person under the age of 18 years, who has not previously or subsequently been convicted of any offense, is charged with several misdemeanor offenses, the charges are consolidated for trial and judgment, and the sentence imposed is within the statutory limit for conviction of a single offense, may the court order expungement of the record pursuant to G.S. 15-223?

Conclusion:

Yes.

The clerks of superior court of the State are required by law to maintain certain records, including records of criminal actions and juvenile actions. G.S. 7A-180. These records are open to public inspection, G.S. 7A-109; 132-1, et seq., and are the property of the people of the State. State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977). While courts have the inherent power and duty to take such action as is necessary to make their records speak the truth, State v. Old, 271 N.C. 341, 156 S.E.2d 756 (1967); Mallard, "Inherent Power of the Courts of North Carolina," 10 Wake Forest L. Rev. 1, 22 (1974), they are without authority to annul or expunge an accurate record, or the records of another agency of government, absent the authority of statute, State v. Bellar, 16 N.C.App. 339, 192 S.E.2d 86 (1972). In this State, a person arrested, though in error, has no right to have the fact of his arrest removed from his criminal record except as authorized by statute, see Session Laws 1979, Chapter 61, compare Code of South Carolina of 1976 17-1-40, though there may be, in some jurisdictions, a right to restrict access to or use which may be made of such erroneous arrest record, see generally, 28 C.F.R., Part 20; Anno., "Right of Exonerated arrestee to Have Fingerprints, Photographs, or Other Criminal Identification or Arrest Records Expunged or Restricted," 46 A.L.R.3d 900 (1972). Court records are protected by law from wrongful disposition or destruction, G.S. 14-76; 132-3, -9. Thus, statute such as G.S. 15-223, 15-223.1, 90-96 and 90-113.14 are an exception to the general prohibition of expungement or alteration of records which speak the truth.

G.S. 15-223 provides:

"§ 15-223. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor. — (a) Whenever any person who has not yet attained the age of 18 years and has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States, the laws of this State or any other state, pleads guilty to or is guilty of a misdemeanor other than a traffic violation, he may file a petition in the court where he was convicted for expunction of the misdemeanor from his criminal record. The petition cannot be filed earlier than two years after the date of the conviction or any period of probation, whichever occurs later, and the petition shall contain, but not be limited to, the following:

1. An affidavit by the petitioner that he has been of good behavior for the two-year period since the date of conviction of the misdemeanor in question and has not been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States or the laws of this State or any other state.

2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good.

3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.

4. Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to the conviction for the misdemeanor in question or during the two-year period following that conviction.

The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.

The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the two-year period that he deems desirable.

(b)

If the court, after hearing, finds that the petitioner had remained of good behavior and been free of conviction of any felony or misdemeanor, other than a traffic violation, for two years from the date of the conviction of the misdemeanor in question, and petitioner was not 18 years old at the time of the conviction in question, it shall order that such person be restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of him for any purpose.

(c)

The court shall also order that the said misdemeanor conviction be expunged from the records of the court, and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency. The sheriff, chief or head of such other arresting agency shall then transmit the copy of the order with a form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation. The cost of expunging such records shall be taxed against the petitioner.

(d)

The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in his county, file with the Administrative Office of the Courts, the names of those persons granted a discharge under the provisions of this section, and the Administrative Office of the Courts shall maintain a confidential file containing the names of persons granted conditional discharges. The information contained in such file shall be disclosed only to judges of the General Court of Justice of North Carolina for the purpose of

ascertaining whether any person charged with an offense has been previously granted a discharge. (1973, c. 47,

s. 2; c. 748; 1975, c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979, c. 431, ss. 1, 2.)"

This statute, under State v. Bellar, supra., gives the court the requisite authority to expunge records of the arrest and conviction of persons who meet the requirements thereof. Since the statute operates as an exception to general principles concerning the alteration of accurate judicial records, it would appear, under the ordinary principles of statutory construction, that the statute should be strictly construed, see generally, 12 Strong’s North Carolina Index 3d, Statutes 5, 5.2 (1978). The statute is phrased throughout in singular terms. If the statute is to be strictly construed, the rule of G.S. 12-3(1) which allows the singular to import the plural could not be applied.

The intention of the General Assembly as ascertained from the language of the session law, Wright v. Casualty & Fidelity Company, 270 N.C. 577, 155 S.E.2d 100 (1967), is controlling, 12 Strong’s North Carolina Index 3d, Statutes 5.1 (1978). In Session Laws 1973, Chapter 748, 1, which is the basic act from which current G.S. 15-223 is derived, we find the following aid to interpretation of the section:

"Purpose of Act. The purpose of this act is to protect the future of youthful offenders of the law. Once a criminal record is created by conviction of a person, said criminal record remains a part of his past for so long as he may live. Many youths have only one small encounter with the law. They go on to be excellent citizens, raise good families, but are always hindered by having a criminal conviction on their record. This bill is not intended to excuse those who repeat their wrongdoing, but to somehow pardon a youthful oversight in an isolated occurrence."

The General Assembly’s statement of purpose further articulates legislative intent as evident from the section. The statute denies the remedy to a person who has been convicted prior or subsequent to the conviction he desires to have expunged. To that end, we think that G.S. 15-223 would be characterized by our courts as being remedial in character, and thus subject to a rule of liberal rather than strict construction and interpretation, 3 Sutherland Statutory Construction, Chapter 60, (Sands ed., 4th ed. 1974). Furthermore, the statute provides a benefit to a juvenile offender, which some courts have held to be remedial and subject to rules of liberal construction, In re Aline D., 14 Cal.3d 557, 121 Cal. Rptr. 816, 536 P.2d 65 (1975); Briones v. Juvenile Court for City and County of Denver, 534 P.2d 624 (Colo. 1975).

Further evidence of the remedial intent of the General Assembly may be inferred from its enactment of the 1979 session of Chapter 61. Chapter 61 of the 1979 Session Laws 1 (effective 20 February 1979) establishes a new section to be codified as G.S. 15-223.1. Under that section, a person has not yet attained the age of 18 years, and who has not previously been convicted of any offense other than a traffic violation may have expunged the record of his arrest for any felony or misdemeanor offense if the charge is dismissed or if he is acquitted. Unlike

G.S. 15-223, there is no limitation on the availability of the remedy under the new statute to a single use. The General Assembly’s mercy for the youthful offender is therefore apparent.

The rules governing the disposition of multiple charges in a single sentence are well established, see generally 4 Strong’s North Carolina Index 3d, Criminal Law 92, et seq. (1976). The joinder of offenses for trial or disposition is addressed to the sound discretion of the court, State v. Slade, 291 N.C. 275, 229 S.E.2d 92 (1976); State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). The verdict or plea of guilty to consolidated charges authorizes the imposition of separate sentences on each charge, 4 Strong’s North Carolina Index 3d, Criminal Law 137.1 (1976), but the sentence cannot exceed the maximum authorized by statute, Id. Where multiple charges are consolidated for sentence, a sentence in excess of the maximum authorized for a single offense will not be sustained on the theory of an intent to impose consecutive sentences, State v. Austin, 241

N.C. 548, 85 S.E.2d 924 (1955). Therefore, if multiple misdemeanor charges against a youthful offender are consolidated for judgment and sentence, the sentence imposed cannot exceed the authorized sentence for conviction of a single offense. The sentencing judge, by consolidating the charges for judgment has indicated his intent to treat the charges as a single offense for the purpose of sentencing, even though the judgment may recite pleas of guilty to or conviction of more than a single offense.

Your inquiry is directed to a case in which three charges were consolidated for disposition and the sentence imposed within the statutory limit for a single offense. In those circumstances and in the light of the purposes of

G.S. 15-223, we think the convictions should be treated as a single misdemeanor for the purpose of expungement. It would be ironic and unjust that one youthful defendant could plead guilty to a single charge, have two other charges dismissed, receive sentence and be entitled to expungement while a second youthful offender who pleads guilty to three charges and receives an identical sentence would be ineligible for the remedy.

The State Bureau of Investigation’s Identification and Records Sections receive many orders to expunge their records, as provided for by the statute. We are, therefore, aware that many judges of the State do order expungement in the circumstances which you describe. In our opinion, the discretionary nature of consolidation and the fact that the remedy of expungement is available only once to a youthful offender neither previously nor subsequently convicted provide adequate safeguards against abuse. We offer this interpretation in the hope that practice may be more uniform throughout the State and that the General Assembly’s remedial purpose may be carried out.

Rufus L. Edmisten Attorney General

David S. Crump Special Deputy Attorney General Special Assistant to the Attorney General