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Criminal Law and Procedure; Expungement

DATE: October 13, 1995

Subject: Criminal Law and Procedure; Expungement

Requested By: James J. Coman, Director, State Bureau of Investigation

Question: Where a person is charged or convicted of several misdemeanor offenses, and the charges are not consolidated for trial and judgment, nor do they arise from the same transaction or occurrence, may the Court order an expungement of the multiple offenses pursuant to

N.C.G.S. §§ 15A-145 and 146?

Conclusion: No.

The clerks of superior court of the state are required by law to maintain certain records, including records of criminal actions and juvenile actions. N.C.G.S. § 7A-180(3). The Court of Appeals has held that while courts have the inherent power and duty to take such action as is necessary to make their records speak the truth, 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). Thus, N.C.G.S. §§ 15A-145 and 146 which prescribe procedures for expunction of criminal records, operate as exceptions to the general prohibition to the alteration of records. Since these statutes operate as an exception to the general principles concerning the alteration of accurate judicial records, it would appear, under the ordinary principles of statutory construction, that the statutes should be strictly construed. See, generally, 27 Strong’s North Carolina Index 4th, Statutes §§ 24, 25 and 28 (1994).

§ 15A-145 controls the expunction of records for first offenders who are under the age of eighteen (18) at the time they commit a misdemeanor. The statute provides that if any person has not reached the age of eighteen (18) and has not previously been convicted of any felony or misdemeanor, and subsequently pleads guilty to or is found guilty of a misdemeanor, that individual can file a petition in the court where he was convicted for an expunction of the misdemeanor from his criminal record. The plain wording of this statute makes it clear that the individual may not have been previously convicted of any felony or misdemeanor, and that only one such conviction can be expunged. This construction is supported by the fact that the statute further provides that the individual must submit affidavits that he/she has not previously been convicted of any felony or misdemeanor prior to the conviction for the misdemeanor in question. The precise language of this section clearly does not authorize multiple expunctions or one expunction of multiple offenses.
§ 15A-146 uses wording similar to § 15A-145. The only difference is that the age requirement does not exist in § 15A-146 and the conditions under which a person may receive the expunction are that the charges must have been dismissed or there must have been a finding of not guilty at a trial. If the person is charged with a crime, either a misdemeanor or a felony, and that person is found not guilty or the charge is dismissed, then that person may petition to the court for an expunction. This statute also contains the wording to the effect that the person must not have been previously convicted of any felony and must not previously have received an expungement. This section refers to several items in the singular, with terms such as: "a crime", "a misdemeanor", "a felony" and "the charge". With such language, as well as the requirement

that a person has never received a prior expungement, it is our opinion that an expungement should only be allowed for a singular offense and not for multiple offenses occurring over a period of time.

Both N.C.G.S. §§ 15A-145 and 146 are phrased throughout in singular terms. Unless words have a technical statutory meaning or one definitely indicated by their context, they should be understood according to their common and ordinary meaning, with the dictionary as a universally recognized source of such meaning. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L.E.2d 406 (1987). The American Heritage Dictionary, 2nd Ed. (1985) defines the term "a", when used before nouns, to denote a single person or thing. The legislative use of this term before the words "crime", "misdemeanor" and "felony" would therefore restrict their usage in terms of the singular and not plural. Thus, we conclude that the legislature intended only a singular offense to be expunged and not multiple offenses.

If the legislature had intended N.C.G.S. §§ 15A-145 and 146 to allow for the expunction of multiple offenses, it would have used plural articles in the wording of the statutes. Only where multiple offenses arise out of the same transaction or occurrence, or were consolidated for trial and judgment, would an expunction of more than one offense be appropriate.

Michael F. Easley Attorney General

Robin P. Pendergraft

Special Deputy Attorney General

John J. Aldridge, III Assistant Attorney General