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OLR Research Report


April 30, 2009

 

2009-R-0201

PARDONS AND ERASURE OF CONVICTIONS IN NORTH CAROLINA

By: Christopher Reinhart, Senior Attorney

You asked how a Connecticut resident could get a pardon for a conviction in North Carolina. This report updates OLR Report 2003-R-0416.

SUMMARY

A Connecticut resident convicted of a crime in North Carolina could apply to North Carolina's governor for a pardon and, if granted a pardon of innocence, apply to North Carolina's courts for an order to expunge the criminal records. For certain misdemeanors or drug crimes, a person could apply to North Carolina's courts to expunge the criminal records.

The North Carolina Constitution gives the governor the power to grant pardons after conviction for all offenses except impeachment under conditions as “he may think proper” (Article III, 5(6)). According to the governor's Office of Executive Clemency, a pardon “may be granted to those individuals who have maintained a good reputation in their community, following the completion of their sentence for a criminal offense.” The office states that applicants ordinarily must wait at least five years from their release from state supervision. The office also states that a pardon is attached to the criminal record and does not expunge or erase a criminal record. But a person who receives a pardon of innocence can apply to the courts for an order to expunge his or her criminal records.

North Carolina statutes also allow the Judicial Branch to expunge certain drug convictions in limited circumstances. Someone who pleads guilty or is found guilty of a (1) misdemeanor for possession of certain controlled substances or drug paraphernalia or (2) felony for possessing less than one gram of cocaine, can petition the court to expunge the conviction. The person must have been under age 21 at the time of the offense and have no previous convictions of an offense under the North Carolina controlled substances act or state or federal law relating to controlled substances or drug paraphernalia. The person must wait at least 12 months after the conviction before petitioning.

A person can also petition the court to expunge certain misdemeanors if he or she was not previously convicted of a felony or misdemeanor other than a traffic violation under state or federal law. This applies to:

1. misdemeanors other than traffic violations if the person was under age 18 at the time of pleading guilty or being found guilty and

2. possession of alcohol if the person was under age 21 at the time of pleading guilty or being found guilty.

The person must wait at least two years after conviction or the end of any period of probation to apply.

A court must make certain findings, including the petitioner's good conduct and lack of subsequent convictions, before approving a petition to erase a conviction.

PARDONS

By law, pardon applications to the governor must be in writing and signed by the convicted person or someone on his or her behalf. The application must contain the reasons for asking for the pardon and a certified copy of the indictment, verdict, and court judgment (NCGS 147-21).

The governor also has the power to grant pardons subject to conditions, restrictions, and limitations that he or she considers proper and necessary (NCGS 147-23). If any conditions are violated, the person must be arrested and detained while the governor examines the case. If the person violated the conditions, the governor must order the person confined for the unexpired term of his or her sentence. The person is released and the conditional pardon remains in force if it appears the person did not violate the conditions (NCGS 147-24).

A person who receives a pardon of innocence can apply to the court where he or she was convicted for an order to expunge all official records relating to the person's apprehension, charge, or trial. The clerk must verify the pardon and then issue an order to expunge court, law enforcement agency, Division of Motor Vehicles, and other state or local government agency records. The order is forwarded to the FBI.

After the order is issued, a person does not commit perjury or false statement for failing to acknowledge the conviction (NCGS 15A-149).

EXPUNGING RECORDS

Certain Drug Crimes

Someone who pleads guilty or is found guilty of a (1) misdemeanor for possession of certain controlled substances (see NCGS 90-90 to 90-94 attached) or drug paraphernalia or (2) felony for possessing less than one gram of cocaine, can petition the court to expunge the conviction. The person must have been under age 21 at the time of the offense and have no previous convictions of an offense under the North Carolina controlled substances act or the law of any state or federal law relating to controlled substances or drug paraphernalia. The person must wait at least 12 months after the conviction before petitioning and must pay a $65 application fee (unless indigent).

The court can order the conviction expunged if the person:

1. has been of good behavior since the conviction,

2. successfully completed a drug education program approved for this purpose by the North Carolina Department of Health and Human Services (the judge can waive this requirement if a program was not available within a reasonable distance from the petitioner's residence or extenuating circumstances made it unlikely that the person would benefit from the program), and

3. has not been convicted of a felony or misdemeanor (other than a traffic violation) under North Carolina law prior to or since the conviction in question.

The judge can request that a probation officer investigate or verify the petitioner's conduct since the conviction.

The court can cancel the conviction and order expunged all records relating to the arrest, indictment or information, trial, finding of guilt, judgment, cancellation of judgment, and the expungement. Law enforcement agencies must expunge their records of the conviction and send a copy of the order to the FBI. The Administrative Office of the Courts retains a confidential file available only to judges to determine if a person charged with a controlled substance offense was previously granted a conditional discharge.

After the court order, the conviction is no longer considered for purposes of disqualifications or liabilities imposed by law, including the provisions on additional penalties for second or subsequent convictions under the controlled substances act. The order restores the petitioner to the status he or she had before arrest, indictment or information, or conviction and the person does not commit perjury or false statement for failing to acknowledge the conviction (NCGS 90-96(e)).

A person can only use this provision to expunge a conviction once.

Misdemeanors

A person can also petition the court to expunge certain misdemeanors if he or she was not previously convicted of a felony or misdemeanor other than a traffic violation under state or federal law. This applies to:

1. misdemeanors other than traffic violations if the person was under age 18 at the time of pleading guilty or being found guilty and

2. possession of alcohol if the person was under age 21 at the time of pleading guilty or being found guilty.

The person must wait at least two years after conviction or the end of any period of probation to apply, must pay a $125 fee, and submit certain information and affidavits in support of the petition. The district attorney can object to the petition.

The court must find, after a hearing, that the petitioner has been of good behavior, had no felony or misdemeanor (other than traffic violations) convictions for two years, and has no outstanding restitution orders or civil judgments for restitution. The judge can request that a probation officer investigate or verify the petitioner's conduct since the conviction.

The court then can restore the person to the status he or she had before the arrest, indictment, or information and the person will not be subject to penalties for perjury or false statement for failing to disclose the crime. The misdemeanor is expunged from court, law enforcement, and Division of Motor Vehicles records and a copy of the order is forwarded to the FBI. The court's administrative office maintains a confidential file that judges can use only to determine if a person charged with an offense was previously granted a discharge (NCGS 15A-145).

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