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Expunction orders aren’t appealable


Prosecutors don’t have an automatic right to appeal an order expunging convictions from a person’s criminal record, a narrowly divided North Carolina Supreme Court has ruled in a case of first impression.

“J.C.” pleaded guilty to one count of indecent liberties in 1987. He filed a petition in Onslow County to have the conviction expunged under a law passed in 2012 that permits the expunction of certain non-violent felonies that are more than 15 years old. A superior court judge granted the petition, and the state tried to appeal the decision. The Court of Appeals dismissed the state’s appeal, finding that it didn’t have any right to appeal expunctions, and the Supreme Court granted a petition for discretionary review.

In a May 10 ruling, the Supreme Court voted 4-3 to affirm the dismissal of the appeal.

Justice Anita Earls, writing for the court, noted that the prosecution generally can’t appeal a judgment in favor of the defendant in a criminal case, unless a statute clearly confers that right, and even then such statutes will be strictly construed. To date, legislators have permitted prosecutors to appeal rulings in only a very narrow set of circumstances, which don’t include grants of expunctions.

The state argued that expunction hearings are actually civil proceedings, and so any party should be allowed to appeal an unfavorable ruling. But the court disagreed based on the language of the expunction statute, which provides that a petition for an expunction “is a motion in the cause in the case wherein the petitioner was convicted.”

“The plain effect of that provision is that an expunction order is one arising in a criminal proceeding,” Earls wrote. “As further support for the proposition than an expunction is part of a criminal proceeding, it is significant that the legislature placed the expunction statute, N.C.G.S. § 15A-145.5, in the chapter addressing criminal procedure … as this Court has held consistently, clear statutory language must be given its plain meaning.”

Earls also noted that after the Court of Appeals issued its opinion in the case, legislators amended the expunction statute but declined to grant the state the right to an appeal. Earls wrote that the court’s decision wouldn’t prevent prosecutors from seeking to correct errors of law because the state could still seek review of an expunction order by writ of certiorari.

Justice Paul Newby penned a dissent arguing that expunction hearings were civil proceedings, and so the state should be entitled to an appeal.

Jason Yoder of Carrboro represented J.C. Yoder said that because expunction laws are very precise and easy to apply to a given request, appeals of decisions involving expunctions have been quite rare—Yoder found only four such cases in the last 30 to 35 years. The practical effect of the court’s ruling, he said, would be to prevent the Court of Appeals from having to hear appeals that might be frivolous or unimportant.

“I’m pleased that the Supreme Court recognized that it’s ultimately the General Assembly as a legislative body that gets to decide whether the state can appeal a criminal action, and I think the opinion took the right approach in this case,” Yoder said. “If the rule is going to be changed, it should be changed by the General Assembly.”

The 20-page decision is State v. J.C. (Lawyers Weekly No. 010-020-19). The full text of the opinion is available online at

Follow David Donovan on Twitter @NCLWDonovan

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