EXPUNCTIONS IN NORTH CAROLINA. Presentation by Amanda L. Maris

Transcription

1 EXPUNCTIONS IN NORTH CAROLINA Presentation by Amanda L. Maris

2 WELCOME & BACKGROUND Welcome! I hope you enjoy the presentation! [We will start with the basics - The process or steps to expunge, types of expunctions- and end with a more detailed explanation of the most commonly used petitions. Some slides have a lot of text. That is so you can have valuable information for your later use.] Who am I? (Assistant Public Defender, District 14) What experience do I have with expunctions? (Founder of Expunction Clinic sponsored by Legal Aid of North Carolina. We are always looking for attorneys willing to volunteer and assist at clinics! me at Amanda.L.Maris@nccourts.org if you want to help out.)

3 INTRODUCTION TO EXPUNCTIONS: MYTH OR FACT? A DISMISSAL is the same thing as an EXPUNCTION. All charges are expunged after 7 years? After 15 years? Expunctions are FREE. A person cannot expunge a guilty charge or conviction. A person cannot expunge a PJC (Prayer for Judgment Continued). If a person has a felony on his or her record, he cannot pursue an expunction.

4 WHY DO WE CARE TO EXPUNGE? Your client is paying you. Criminal records have lasting consequences: SOCIETAL PERCEPTION: A criminal record is a stain on a person s life that carries into other areas of their life outside of the courts. SELF-PERCEPTION/INABILITY TO MOVE ON AND FORWARD JOB OPPORTUNITIES: some companies hire convicted felons, but a prior record is a disadvantage any time an applicant goes up against someone without a criminal record. GOVERNMENT BENEFITS: housing, Food Stamps, Medicaid, etc. (Great tool: C-CAT or Collateral Consequences Assessment Tool, see the webpage

5 AT WHAT STAGE CAN CHARGES BE EXPUNGED? AFTER DISPOSITION. THE CASE IS OVER IN COURT. WHAT IS A DISPOSITION? (TYPES) GUILTY NOT GUILTY DISMISSED PJC?

6 WHEN SHOULD A GOOD ATTORNEY THINK ABOUT A CLIENT S OPTIONS TO EXPUNGE? WHY? SURPRISE! BEFORE PLEA NEGOTIATION WITH THE DA! Understanding NC law on expunctions is crucial to properly advising a client of the best possible course of action on a client s case. There are case outcomes that one might believe to be the best result in a particular case that would nonetheless block a successful expunction down the line. Example: Client is under 18 years of age. Client is originally charged with a felony but offered a plea to a lesser-included offense of misdemeanor larceny. An outright dismissal is not an option. A trial is not advisable on the facts. Client wants a PJC rather than a guilty conviction. Is this better than a guilty? Why/Why not? NCGS 15A-145(a)

7 STEPS TO COMPLETING THE EXPUNCTION PETITION STEP 1: OBTAIN A COMPLETE NC CRIMINAL RECORD entire NC record. STEP 2: REVIEW RECORD for 5 KEY ITEMS--- 1 FELONY CONVICTIONS 2 OUTSTANDING CASES OR FINES ELIGIBILE CHARGES (BY DISPOSITION) ELIGIBILE CHARGES (BY NATURE OF CHARGE) 5 -- DATES OF OFFENSE AND DISPOSITION STEP 3: DETERMINE APPLICABLE PETITION/S ALSO BE FAMILIAR WITH THAT PARTICULAR PETITION S REQUIREMENTS. STEP 4: DISCUSS OPTIONS WITH CLIENT-some options may preclude others. Let the client decide which cases are a priority to expunge.

8 STEP 1: OBTAIN CLIENT S STATEWIDE RECORD You must obtain a full, statewide criminal record for your client. This does not include out-of-state convictions or cases. CERTIFIED CRIMINAL RECORD: This can be obtained in a county clerk of court office. Each county s clerk of court can give you a record for the cases from that county alone. There is a small fee of $25. Some clerks may be willing to give you an uncertified copy for free. The certified copy requires an AOC form is submitted (AOC-CR-314, found on Forms tab). ACIS COMPUTER SYSTEM: You can use the terminals in the county clerk office to run a statewide record yourself. You will complete a PF5 search. However, this can be tricky to a novice user. The AOC has a citizen s guide to ACIS ( NC SBI: An individual can obtain their own statewide record from the NC SBI. There is a Right to Review form to complete and a fingerprint card. The form fee is $14; card is $25. Commercial record provider: not recommended, not always accurate. Prices vary by company. Adverse action: If an employer denies employment or takes adverse action based on an applicant s criminal history they are usually required to provide a copy of the commercial record to the applicant. (See previous bullet.)

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10 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS GET YOUR PEN OUT AND PREPARE TO CIRCLE 1) You will first circle felony convictions. Stop here unless client is interested in an identity theft petition, has had a pardon of innocence and is pursuing related petition, or is eligible for the prostitution petition (nonviolent felonies okay).

11 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 1) ITEM 1 PREVIOUS FELONY CONVICTIONS Most petitions cannot be filed if a client has a previous felony conviction & some petitions are ALSO prohibited if the client has either a previous felony or misdemeanor conviction other than a traffic violations Practice Note: NCGS 15A-146 petition (Dismissed/NG petition)- prevented just by felony, not misdemeanor convictions. Other than a traffic violation What is a misdemeanor traffic violation? Traffic violations are covered in Chapter 20 of the N.C. General Statutes. Argue includes DWI (or any misdemeanor covered by Chp. 20)

12 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 2) GET YOUR PEN OUT AND PREPARE TO CIRCLE 2) You will next circle any outstanding cases or fines

13 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 2) ITEM 2 OUTSTANDING CASES OR FINES (UNPAID TICKET OR PLEA) Outstanding Fines. General rule is that a person cannot have outstanding restitution at the time a petition is filed (exception: see each petition for its requirements). Argument case isn t disposed if unpaid monies, however look to the language of the statute on a particular petition. Outstanding or Pending Cases. No rule that you can t file a petition with outstanding or pending cases/charges, but you don t want to fill out a petition for a person when there could be other charges still out there. WHY? B/C they might be able to combine charges on a petition, or the outstanding case may be more serious and therefore the client may rather have it expunged

14 OUTSTANDING FINE OR NOT? (ACIS)

15 OUTSTANDING/PENDING CASE? (ACIS)

16 ONCE IN A LIFETIME RULE MOST PETITIONS CAN ONLY BE FILED ONCE IN A LIFETIME. THIS IS WHY A CLIENT MUST CHOOSE CAREFULLY WHAT AND WHEN TO EXPUNGE AND WHY ALL OUTSTANDING CASES SHOULD BE RESOLVED BEFORE FILING A PETITION.

17 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 3) GET YOUR PEN OUT AND PREPARE TO CIRCLE 2) You will next circle any unresolved cases in order to determine eligible charges (by disposition)

18 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 3) ITEM 3 - ELIGIBLE CHARGES (BY DISPOSITION) How do you know what s eligible? Is the case resolved? UNRESOLVED = INELIGIBLE!! DISPOSED = ELIGIBLE! (IF CHARGE ITSELF IS ELIGIBLE ALSO) Types of dispositions. e.g., dismissed, guilty, not guilty, dismissed with leave, waived, unserved warrant, & prayer for judgment ( PJC ).* CIRCLE THESE - NOT ELIGIBLE: Dismissed w/ Leave, Unserved Warrant, most PJCs. Examine again at the end of Step 4.

19 DISMISSED WITH LEAVE (ACIS)

20 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 4) (We already know that regardless of the nature of charge, we will identify or circle any dismissed or not guilty on a client s record.) ITEM 4: Eligible charges by Nature of Charge include certain guilty convictions (CIRCLE): 1) First nonviolent misdemeanor or felony if it s the only case on the client s record aka. first & only. ( Nonviolent will be defined later.) 2) A misdemeanor drug charge, PDP, felony cocaine, gang offense or toxic vapor charge IF CLIENT WAS UNDER 18/22 at date of offense.

21 STEP 2: REVIEW RECORD FOR 5 KEY ITEMS (ITEM 5) ITEM 5 -- DATES OF OFFENSE AND DISPOSITION IN ORDER TO DETERMINE ULTIMATE CHARGE ELIGIBILITY AN EXAMINATION OF DATES MUST OCCUR. THESE DATES ARE: Date of offense the date the crime occurred as set out in the charging instrument. OF on an ACIS record (or far left column). Date of disposition the date the case was resolved in court. (Far right column on an ACIS record.) This becomes important w/ the multiple offense rule for 15a-146. Date of birth many petitions to expunge are permitted only where a defendant was a certain age at the date of offense. Review the DOB and OF in order to determine age at date of offense in your initial review of the record for each case listed.

22 DATE OF OFFENSE/DISPOSITION (ACIS):

23 STEP 3: DETERMINE APPLICABLE PETITION/S CATEGORIZE CASES BY TYPE OF DISPOSITION DISMISSED OR NOT GUILTY CASES: Dismissed/Not guilty (15A-146) General (any charge) Dismissed (15A-145.2,-145.3) - Offense-Specific (specific charges): 15A (a & b) Dismissed Drug Charge under Age 22; 15A (a & b) Dismissed Drug Par./Toxic Vapors Charge under Age 22 Charge dismissed/not guilty due to Identity Theft (15A-147)* *or the conviction was set aside (MAR).

24 Dismissed/Not Guilty Petition (15A-146) -This is the most commonly used petition. -It is free unless a dismissal was obtained as a result of a deferred prosecution, conditional discharge or diversionary program (then $175 but can apply for waiver of fee). -Any dismissed charge or charge with a finding of not guilty or not responsible. -No previous felony conviction. -No previous expunction! File this one before other eligible petitions!

25 MULTIPLE OFFENSE RULE (15A-146) Multiple offenses that have been dismissed/not guilty can be expunged together on the same petition under N.C. Gen. Stat. 15A-146 IF one of two things is true: 1) the date of offense for each charge occurred within 12 months of each other -OR- 2) all charges were resolved in the same session of court. (District court: same day; Superior court: same week).

26 MULTIPLE PETITIONS IN DIFFERENT COUNTIES Sometimes a client will have petitions to file in different counties. WHY? You must file any petition to expunge in the county where the charge arose. How to file in different counties: Consider which petitions permit a previous expunction and which do not. File the ones that do not permit a previous expunction first. When you are filing multiple petitions of the same nature or type (e.g. 15a-146 VD petitions): File them at same time, same day in all counties. I usually recommend Xeroxing the petition(s) being filed in the other county/counties and attaching it to the one being filed with a note to advise the clerk you are filing another one simultaneously. This is so they consider it simultaneous since it matters with a15a-146 VD petition that can only be filed once in a lifetime.

27 DISMISSED DRUG/PDP/TV PETITION (15A-145.2,-145.3) There is not much reason to use these petitions so long as one can use the 15A-146 VD petition because they require additional documentation (affidavits), cost $175 & a waiver of fee may not be possible. Also, you must have been under 22 years of age at the date of offense for the charge, and there is no age requirement for 15A-146 petitions. (Review the particular statutes below for more.) 15A (a & b) Dismissed Drug Charge under Age 22 15A (a & b) Dismissed Drug Par./Toxic Vapors Charge under Age 22

28 CHARGE DISMISSED/NOT GUILTY/SET ASIDE DUE TO IDENTITY THEFT (15A-147) The identity of the client was used without his or her permission and client was charged as a result. Charge was either: dismissed, not guilty or conviction set aside. Essentially, there needs to be some finding by the court on the record of identity theft or similar wording. Free No additional forms or affidavits required. Notice to DA

29 STEP 3: DETERMINE APPLICABLE PETITION/S CATEGORIZE CASES BY TYPE OF DISPOSITION GUILTY CASES: First misdemeanor conviction, Under 18 or Under 21 (Poss Alc) 15A-145 Gang Offense, Under 18 (15A-145.1) Drug Conviction, Under 22 (15A-145.2(c)) Toxic Vapors, Under 22 (15A-145.3(c)) Nonviolent felony, Under 18 (15A-145.4) Nonviolent misdemeanor or felony, Any Age (15A-145.5) Prostitution Offenses, Any Age (15A-145.6)

30 First Misdemeanor, Under 18 [or Under 21 (Poss Alc only)] 15A-145 At date of offense, client was under the age of 18 unless specific charge of Possession of Alcohol (18b-302(b)(1)) No previous misdemeanor or felony convictions (other than traffic violations) No subsequent misdemeanor or felony convictions (other than traffic violations) in the 2 years since the date of conviction (date of disposition) TWO-YEAR WAIT: 2 years have passed since date of conviction and sentence (including probation period) has ended. Previous expunction is OKAY. Affidavits required, Notice to DA, Fee $175 (unless waiver for indigent)

31 Nonviolent felony, Under 18 (15A-145.4) Conviction of nonviolent felony (MULTIPLE F s = 1 F only if same session of court) At date of offense, client was under 18 years of age No previous misdemeanor or felony convictions (other than traffic violations) No subsequent misdemeanor or felony convictions (other than traffic violations) in the 4 years since the date of conviction (date of disposition) FOUR-YEAR WAIT: 4 years have passed since date of conviction and sentence (including probation period) has ended. Previous expunction is NOT OKAY. No outstanding OFAs or pending criminal cases. Affidavits required (incl. 100 hours of comm. service performed since DOJ & HS diploma or GED), Notice to DA, Fee $175 (unless waiver for indigent)

32 The term "nonviolent felony" means any felony except the following: (1) A Class A through G felony. (2) A felony that includes assault as an essential element of the offense. (3) A felony that is an offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register. (4) Repealed by Session Laws , s. 2, effective December 1, (5) Any felony offense under the following sex-related or stalking offenses: G.S A(b), , , , A, , , A, (6) Any felony offense in Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine; except that if a prayer for judgment continued has been entered for an offense classified as either a Class G, H, or I felony, the prayer for judgment continued shall be subject to expunction under the procedures in this section. (7) A felony offense under G.S (b), , or , or any felony offense for which punishment was determined pursuant to G.S. 14-3(c). (8) A felony offense under G.S (9) Any felony offense in which a commercial motor vehicle was used in the commission of the offense

33 Nonviolent misdemeanor or felony, Any Age (15A-145.5) Conviction of nonviolent felony or misdemeanor (MULTIPLE F/M s = 1 only if same session of court AND none of offenses are alleged to have occurred after client was already charged w. any of the offense that resulted in conviction.) No OTHER misdemeanor or felony convictions (other than traffic violations) FIFTEEN-YEAR WAIT: 15 years have passed since date of conviction and sentence (including probation period) has ended. Previous expunction is NOT OKAY. No outstanding OFAs or pending criminal cases. Affidavits required (NO comm. service/ HS or GED req t), Notice to DA, Fee $175 (unless waiver for indigent), Judge has discretion whether to grant but if denial of petition court must include a finding as to the reason for denial.

34 The term "nonviolent misdemeanor" or "nonviolent felony" means any misdemeanor or felony except the following: (1) A Class A through G felony or a Class A1 misdemeanor. (2) An offense that includes assault as an essential element of the offense. (3) An offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register. (4) Any of the following sex-related or stalking offenses: G.S A(b), , , , , A, , , A, (5) Any felony offense in Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine. (6) An offense under G.S (b), , or , or any offense for which punishment was determined pursuant to G.S. 14-3(c). (7) An offense under G.S (7a) An offense under G.S (a), 14-54(a1), or (8) Any felony offense in which a commercial motor vehicle was used in the commission of the offense. (9) Any offense that is an attempt to commit an offense described in subdivisions (1) through (8) of this subsection.

35 Prostitution Offenses, Any Age (15A-145.6) Conviction for a prostitution offense under GS (after 9/30/13) or under GS (7) (prior to 10/1/2013) No prior convictions for any violent misdemeanor or felony. ( Violent means Class A-G felony or a Class A1 misdemeanor that includes assault as an essential element.) SATISFIES 1 OF 3 CRITERIA: (2nd WILL BE MOST COMMONLY USED) 1) Participation in the prostitution offense was due to being a trafficking victim 2) Person has no prior convictions for a prost offense and at least 3 years have passed since date of conviction or completion of sentence, whichever is later 3) Petitioner received a conditional discharge pursuant to GS (b) No subsequent misdemeanor or felony convictions (other than traffic violations) No outstanding OFAs or pending criminal cases. No outstanding orders for restitution or civil judgments for such. Affidavits required, Notice to DA, Fee $175 (unless waiver for indigent)

36 OTHER EXPUNCTION PETITIONS NOT COVERED: 1) JUVENILE RECORDS 3 TYPES (Dismissal NCGS 7B-3200(h); Undisciplined NCGS 7B-3200(a), Delinquent NCGS 7B-3200(b)) 2) DNA RECORDS (NCGS 15A-148) 3) PARDON OF INNOCENCE (NCGS 15A-149)

37 STEP 4: DISCUSS OPTIONS WITH CLIENT Some options may preclude others. Let the client decide which cases are a priority to expunge. This means which charges are most damaging to the client if they stay on their record. This may be based on the severity or nature of the charge depending on their career track. Remember to consider collateral consequences (C-CAT) of various types of convictions. Remember to consider the ORDER IN WHICH TO FILE the petition to expunge. File the petition first that cannot have any prior expunction. File the petition last the can have prior expunctions.

38 CERTIFICATE FOR RELIEF (NCGS 15A-173) When an expunction is not an option, you may want to discuss the Certificate for Relief with your client. Requirements: Convicted of no more than 2 Class G, H or I felonies or any misdemeanor in one session of court. No OTHER misdemeanor or felony convictions (other than traffic violations); No pending criminal charges. 1-YEAR WAIT: At least 12 months have passes since sentence completed. Client is engaged or seeking a lawful job OR has lawful source of support. No previous CFR has been filed or at least 12 mos since a CFR was denied. Granting the CFR petition would not pose an unreasonable risk to the safety or welfare of any individual. Free, No affidavit (but supporting documentation is okay), Notice to DA 3 wks prior to hearing

39 INDIGENT FEE WAIVER In order to have a petition fee waived, a form AOC-G-106 must be submitted and client must be a current recipient of one of the following: 1) Food stamps 2) Aid to Families with Dependent Children (AFDC) 3) Supplemental Security Income (SSI) 4) Representation by legal services organization (or private attorney working on behalf of such an organization). An individual not qualifying for one of these benefits, must submit an affidavit of indgency (AOC-CV-226).

40 WHERE CAN YOU FIND THE PETITION FORMS? NC Courts website: Click the Forms tab In the search box, enter petition Several petitions will appear including all of the expunction petitions. The title for each is a link you can select. Each title references the expunction statute, which is how you will know that you have the right form. Just above or below the form will be a link to a document with instructions on how to complete the related form. Click and begin to complete!

41 OTHER RESOURCES AND SAMPLE AFFIDAVITS: N.C Justice Center Guide to Expunctions Legal of North Carolina, Durham Office, Expunction Clinic (Free, # ) Southern Coalition for Social Justice s Clean Slate Clinic (Free, # ) Direct Link to Forms Search (AOC Forms on nc courts website)

42 ANY QUESTIONS?...

43 MY CONTACT INFORMATION Amanda L. Maris Assistant Public Defender, District 14 (Durham) (919) THANK YOU FOR YOUR ATTENTION. BEST OF LUCK IN YOUR PURSUITS