When a person under 18 with no prior convictions has three misdemeanor charges consolidated for trial and gets a sentence within the limit for a single offense, can the judge expunge the whole batch under G.S. 15-223?

Plain-English summary

District Attorney Russell G. Walker, Jr., of the 19th-B Prosecutorial District asked the AG whether the youthful offender expungement statute (G.S. 15-223) reaches a case where three misdemeanor charges were consolidated for trial and the youth received a sentence within the statutory limit for a single offense.

The 1979 AG said yes.

The starting point is the general principle that court records are public records and accurate records cannot be expunged or altered without statutory authority. State v. Bellar, 16 N.C. App. 339, established that even an arrest in error generally cannot be expunged unless a statute authorizes it. So expungement statutes are the exceptions to the general rule, and the question is how broadly to read them.

G.S. 15-223 is the expungement provision for first offenders under 18 convicted of a misdemeanor (other than traffic violations). It allows the youth, after a two-year waiting period and on petition with affidavits of good behavior and character, to have the misdemeanor expunged from the criminal record. The statute is phrased in the singular ("a misdemeanor," "the misdemeanor in question").

The question is whether the singular phrasing restricts the statute to one-charge cases. Under strict construction, the statute would not reach consolidated multiple charges. Under liberal construction, the statute would reach consolidated multiple charges that produced a single-offense sentence.

The opinion goes with liberal construction. The reasoning has three pieces.

Remedial purpose. The 1973 enabling act (Session Laws 1973, Chapter 748) explicitly stated the purpose: "to protect the future of youthful offenders of the law. . . . 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." That purpose is fundamentally remedial.

Subsequent expansion. The 1979 General Assembly enacted Chapter 61 (which became G.S. 15-223.1), authorizing expungement of arrest records for youthful first offenders whose charges were dismissed or who were acquitted. Unlike G.S. 15-223, that new statute does not limit the remedy to a single use. The legislative expansion of the youthful offender expungement framework shows the General Assembly's continuing commitment to youthful-offender protection.

Consolidated sentencing reflects single-offense treatment. When a judge consolidates multiple charges for sentence and imposes a sentence within the statutory limit for a single offense, the judge has implicitly treated the multiple charges as a single offense. State v. Austin, 241 N.C. 548, holds that consolidated sentences cannot exceed the maximum for a single offense based on a theory of consecutive sentences. So the consolidation-plus-single-offense-sentence pattern is the judge's way of saying the charges are one criminal event for sentencing purposes.

The opinion's policy argument: it would be ironic and unjust that a youth who pleaded to one charge could get expungement while a youth who pleaded to three consolidated charges with the same sentence could not. The remedy of expungement should match the substance of the sentencing treatment, not the formal charge count.

The AG noted that many North Carolina judges were already ordering expungement in these circumstances. The opinion's purpose was to offer a uniform interpretation so practice could be consistent across the state and the General Assembly's remedial purpose could be carried out.

The safeguards against abuse are built into the statute. Consolidation is discretionary with the judge. The remedy is available only once. The petitioner must show two years of good behavior. The DA has notice and opportunity to object. The judge can call on a probation officer for additional verification.

Currency note

This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's expungement law has been substantially expanded since 1979, with many more categories of expungement now available and procedural requirements significantly modified. Modern practice should be based on current Chapter 15A, the current expungement statutes, and the Administrative Office of the Courts' guidance. Multiple expungements per person are now available in various contexts.

Historical context: what the AG concluded

The opinion's analytical move is the strict-construction-versus-liberal-construction debate, resolved firmly on the liberal side based on the legislature's express remedial purpose.

The strict construction case is straightforward. The statute uses singular phrasing throughout. G.S. 12-3(1) ordinarily allows singular to imply plural, but only if the statute is not subject to strict construction. Expungement statutes carve out exceptions to the general rule that accurate court records are inviolable. Under traditional canons, exceptions get strict construction.

The liberal construction case has three layers. Layer one: the explicit statement of purpose in the 1973 enabling act characterizes the statute as remedial. Remedial statutes get liberal construction. Layer two: out-of-state cases (In re Aline D. from California, Briones from Colorado) support liberal construction of statutes that provide benefits to juvenile offenders. Layer three: the 1979 expansion of the youthful expungement framework reinforces the legislature's commitment to the remedial purpose.

The consolidation argument bridges the legal frame to the practical reality. North Carolina law on consolidated sentencing already treats consolidated charges as a single offense for purposes of sentence cap. State v. Austin is the lead authority: a sentence on consolidated charges cannot exceed the maximum for a single offense unless the judge specified consecutive sentences. So if the judge consolidates and imposes a single-offense-cap sentence, the judge has by that act treated the offenses as one for sentencing purposes. Expungement should track the same treatment.

The injustice argument provides the rhetorical close. Two youths get identical sentences (say, six months suspended); one pleaded to a single charge while the other pleaded to three consolidated charges. Both are first offenders. Both deserve the chance to start over with a clean record. Differentiating between them based on the technicality of charge count would defeat the statute's purpose.

The opinion also displays good practical institutional awareness. The AG noted that many judges were already ordering expungement in these circumstances, and the SBI Records Section was processing the orders. Rather than telling judges to stop, the AG offered an interpretation that legitimated the existing practice and would produce statewide uniformity.

Background and statutory framework

The general rule in North Carolina is that court records are public records and may not be altered except as authorized by statute. G.S. 7A-180 requires clerks to maintain court records. G.S. 7A-109 and 132-1 et seq. (the Public Records Law) make those records public. State v. West, 293 N.C. 18, holds that public records belong to the people of the state. State v. Old, 271 N.C. 341, recognizes the court's inherent power to make records speak the truth, but State v. Bellar, 16 N.C. App. 339, makes clear that courts have no inherent power to expunge accurate records or records of other agencies.

The expungement statutes are the exceptions to the general rule. G.S. 15-223 (youthful first offender misdemeanor expungement), G.S. 15-223.1 (added in 1979 to cover arrest records for youthful first offenders whose charges were dismissed or who were acquitted), G.S. 90-96 (drug offender expungement), and G.S. 90-113.14 (drug paraphernalia expungement) all create narrow paths for removing specific kinds of records.

G.S. 15-223 was originally enacted as Chapter 748 of the 1973 Session Laws. The statute was amended several times in the intervening years (1975 c. 650 s. 5; 1977 c. 642 s. 1; 1977 c. 699 ss. 1, 2; 1979 c. 431 ss. 1, 2). The 1973 enabling act's preamble explicitly described the remedial purpose.

Consolidated sentencing in North Carolina is a familiar feature of district court and superior court practice. When multiple charges arise from the same incident or course of conduct, the judge may consolidate them for trial or for judgment. The consolidation is discretionary (State v. Slade, State v. Anderson). The sentence on consolidated charges, unless the judge expressly imposes consecutive sentences, is capped at the maximum for a single offense (State v. Austin). This sentencing rule reflects an underlying judicial judgment that the offenses are one criminal event for sentencing purposes.

The 1979 enactment of G.S. 15-223.1 was significant for the opinion's analysis. The new statute provided expungement of arrest records for youths whose charges were dismissed or who were acquitted, and (unlike G.S. 15-223) did not limit the remedy to a single use. The expansion supported the AG's reading of G.S. 15-223 as remedial.

Common questions

Can the petition be filed before the two-year waiting period?

No. G.S. 15-223 requires that the petition not be filed earlier than two years after the date of conviction or any period of probation, whichever occurs later. The waiting period is fixed.

What if the youth had a juvenile court adjudication before the misdemeanor conviction?

The opinion does not address juvenile adjudications. The statute disqualifies a youth who "has previously been convicted of any felony, or misdemeanor other than a traffic violation." A juvenile adjudication is technically not a conviction, but the analysis depends on the specific juvenile court treatment.

What about traffic violations?

Traffic violations are excluded from the disqualification analysis ("misdemeanor other than a traffic violation") and from the expungement remedy ("misdemeanor other than a traffic violation"). Traffic offenses do not block expungement and cannot themselves be expunged under G.S. 15-223.

What's the practical effect of expungement?

The statute restores the petitioner to the legal status they occupied before the arrest or indictment. The petitioner can answer "no" when asked whether they have ever been arrested, indicted, or convicted of the offense in question, without committing perjury or giving a false statement.

Could a youth get expungement of a felony under G.S. 15-223?

No. G.S. 15-223 is limited to misdemeanors. Felony expungement has its own framework.

What if the youth later picks up a new conviction?

The statute disqualifies any subsequent conviction during the two-year waiting period. A conviction after the waiting period would not retroactively undo the expungement but might affect other rights.

Source

• Landing page: https://ncdoj.gov/opinions/criminal-law-and-procedure-youthful-offenders-expungement-records-and-recording-laws/

Citations

• G.S. 15-223
• G.S. 15-223.1
• G.S. 90-96
• G.S. 90-113.14
• G.S. 7A-180
• G.S. 7A-109
• G.S. 132-1, et seq.
• G.S. 14-76
• G.S. 132-3
• G.S. 132-9
• G.S. 12-3(1)
• Session Laws 1979, Chapter 61
• Session Laws 1973, Chapter 748, 1
• State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977)
• State v. Old, 271 N.C. 341, 156 S.E.2d 756 (1967)
• State v. Bellar, 16 N.C. App. 339, 192 S.E.2d 86 (1972)
• Wright v. Casualty & Fidelity Company, 270 N.C. 577, 155 S.E.2d 100 (1967)
• 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)
• 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)
• State v. Austin, 241 N.C. 548, 85 S.E.2d 924 (1955)

Original opinion text

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:

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