FRANKLIN COUNTY REPUBLICAN PARTY
101 W. NASH STREET
P.O. BOX 909
LOUISBURG, NORTH CAROLINA 27549
(919) 496-1469
www.FranklinNCGOP.com
October 2, 2007
Doug Berger's Disgraceful Bill
Youthful Offender's Criminal Record May be Expunged of Nonviolent Felonies
Senate Bill 677 Sponsored by Doug
Berger:
AN ACT to provide that a youthful offender's criminal record may be expunged of
nonviolent felonies.
The General Assembly of North Carolina enacts:
SECTION 1. Article 5 of Chapter 15A of the General Statutes is amended
by adding a new section to read:
"§ 15A-150. Expunction of records for first offenders who are under 18 years
of age at the time of the commission of a nonviolent felony.
(a) For purposes of this section, 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 e ssential element of
the offense;
(3) A felony that is an offense for which the convicted offender
must register under Article 27A of Chapter 14 of the General Statutes; and
(4) Any felony offense charged pursuant to Chapter 90 of the
General Statutes where the offense involves methamphetamines.
(b) Notwithstanding any other provision of law, if the person is
convicted of more than one nonviolent felony in the same session of court and
none of the nonviolent felonies are alleged to have occurred after the person
had already been charged and arrested for the commission of a nonviolent felony,
then the multiple nonviolent felony convictions shall be treated as one
nonviolent felony conviction under this section, and the expunction order issued
under this section shall provide that the multiple nonviolent felony convictions
shall be expunged from the person's record in accordance with this section.
(c) Whenever any person who had not yet attained the age of 18
years at the time of the offense 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 nonviolent felony, the person may file a petition in the court where
the person was convicted for expunction of the nonviolent felony from the
person's criminal record. The petition shall not be filed earlier than two years
after the date of the conviction or when any active sentence, period of
probation, and post-release supervision has been served, whichever occurs later.
The person shall also perform at least 100 hours of community service,
preferably related to the conviction, before filing a petition for expunction
under this section. The petition shall contain the following:
(1) An affidavit by the petitioner that the petitioner has been
of good moral character for the two-year period since the date of conviction of
the nonviolent felony in question and has not been convicted of any other felony
or any misdemeanor other than a traffic violation under the laws of the United
States or the laws of this State or any other state.
(2) 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 the
petitioner lives and that the petitioner's character and reputation are good.
(3) A statement that the petition is a motion in the cause in
the case wherein the petitioner was convicted.
(4) An application on a form approved by the Administrative
Office of the Courts requesting and authorizing (i) a State and national
criminal record check by the Department of Justice using any information
required by the Administrative Office of the Courts to identify the individual;
(ii) a search by the Department of Justice for any outstanding warrants or
pending criminal cases; and (iii) a search of the confidential record of
expunctions maintained by the Administrative Office of the Courts. The
application shall be forwarded to the Department of Justice and to the
Administrative Office of the Courts, which shall conduct the searches and report
their findings to the court.
(5) An affidavit by the petitioner that no restitution orders or
civil judgments representing amounts ordered for restitution entered against the
petitioner are outstanding.
(6) An affidavit by the petitioner that the petitioner has
performed at least 100 hours of community service since the conviction for the
nonviolent felony. The affidavit shall include a list of the community services
performed, a list of the recipients of the services, and a detailed description
of those services.
(7) An affidavit by the petitioner that the petitioner possesses
a high school diploma, a high school graduation equivalency certificate, or a
General Education Development Degree.
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 30
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 district attorney
shall make his or her best efforts to contact the victim, if any, to notify the
victim of the request for expunction prior to the date of the hearing.
(d) The court in which the petition was filed may take the
following steps and may consider at least the following issues in rendering a
decision upon a petition for expunction of records of a nonviolent felony under
this section:
(1) Call upon a probation officer for additional investigation
or verification of the petitioner's conduct during the two-year period since the
date of conviction of the nonviolent felony in question.
(2) Review the petitioner's juvenile record, ensuring that the
petitioner's juvenile records remain separate from adult records and files and
are withheld from public inspection as provided under Article 30 of Chapter 7B
of the General Statutes.
(3) Review the amount of restitution made by the petitioner to
the victim of the nonviolent felony to be expunged and give consideration to
whether or not restitution was paid in full.
(4) Review any other information the court deems relevant,
including, but not limited to, affidavits or other testimony provided by law
enforcement officers, district attorneys, and victims of nonviolent felonies
committed by the petitioner.
(e) The court may order that the person be restored, in the
contemplation of the law, to the status the person occupied before the arrest or
indictment or information if the court finds all of the following after a
hearing:
(1) The petitioner has remained of good moral character and has
been free of conviction of any felony or misdemeanor, other than a traffic
violation, for two years from the date of conviction of the nonviolent felony in
question or any active sentence, period of probation, or post-release
supervision has been served, whichever is later.
(2) The petitioner 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.
(3) The petitioner has no outstanding warrants or pending
criminal cases.
(4) The petitioner has no outstanding restitution orders or
civil judgments representing amounts ordered for restitution entered against the
petitioner.
(5) The petitioner was less than 18 years old at the time of the
commission of the offense in question.
(6) The petitioner has performed at least 100 hours of community
service since the time of the conviction and possesses a high school diploma, a
high school graduation equivalency certificate, or a General Education
Development Degree.
(7) The search of the confidential records of expunctions
conducted by the Administrative Office of the Courts shows that the petitioner
has not been previously granted an expunction.
(f) No person as to whom an order has been entered pursuant to
subsection (d) of this section shall be held thereafter under any provision of
any laws to be guilty of perjury or otherwise giving a false statement by reason
of that person's failure to recite or acknowledge the arrest, indictment,
information, trial, or conviction. Persons pursuing certification under the
provisions of Chapters 17C or 17E of the General Statutes, however, shall
disclose any and all felony convictions to the certifying Commission regardless
of whether or not the felony convictions were expunged pursuant to the
provisions of this section.
Persons required by State law to obtain a criminal background check on a
prospective employee shall not be deemed to have knowledge of any convictions
expunged under this section.
(g) The court shall also order that the nonviolent felony
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 of
police, or head of any 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.
(h) Any other applicable State or local government agency shall
expunge from its records entries made as a result of the conviction ordered
expunged under this section. The agency shall also reverse any administrative
actions taken against a person whose record is expunged under this section as a
result of the charges or convictions expunged. This subsection shall not apply
to the Department of Justice for DNA records and samples stored in the State DNA
Database and the State DNA Databank.
(i) The clerk of superior court in each county in North
Carolina shall, as soon as practicable after each term of court in the clerk's
county, file with the Administrative Office of the Courts the names of those
persons granted expunctions under the provisions of this section, and the
Administrative Office of the Courts shall maintain a confidential file
containing the names of persons granted expunctions. The information contained
in the file shall be disclosed only as follows:
(1) 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.
(2) To State and local law enforcement agencies for employment
purposes only.
(3) To the North Carolina Criminal Justice Education and
Training Standards Commission for certification purposes only.
(4) To the North Carolina Sheriffs' Education and Training
Standards Commission for certification purposes only.
(j) Any person eligible for expunction of a criminal record
under this section shall be notified about the provisions of this section by the
probation officer assigned to that person. If no probation officer is assigned,
notification of the provisions of this section shall be provided by the court at
the time of the conviction of the felony which is to be expunged under this
section.
(k) A person who files a petition for expunction of a criminal
record under this section shall pay the clerk of superior court a fee of one
hundred twenty-five dollars ($125.00) at the time the petition is filed. Fees
collected under this subsection shall be deposited in the General Fund. This
subsection does not apply to petitions filed by an indigent."
SECTION 2. G.S. 17C-13 reads as rewritten:
"§ 17C-13. Pardons.Pardons; expunctions.
(a) When a person presents competent evidence that he has been
granted an unconditional pardon for a crime in this State, any other state, or
the United States, the Commission may not deny, suspend, or revoke that person's
certification based solely on the commission of that crime or for an alleged
lack of good moral character due to the commission of that crime.
(b) Notwithstanding G.S. 15A-150, the Commission may gain access
to a person's felony conviction records, including those maintained by the
Administrative Office of the Courts in its confidential files containing the
names of persons granted expunctions. The Commission may deny, suspend, or
revoke a person's certification based solely on that person's felony conviction,
whether or not that conviction was expunged."
SECTION 3. G.S. 17E-12 reads as rewritten:
"§ 17E-12. Pardons. Pardons; expunctions.
(a) When a person presents competent evidence that the person has
been granted an unconditional pardon of innocence for a crime in this State, any
other state, or the United States, the Commission may not deny, suspend, or
revoke that person's certification based solely on the commission of that crime
or for alleged lack of good moral character due to the commission of that crime.
(b) Notwithstanding G.S. 15A-150, the Commission may gain access
to a person's felony conviction records, including those maintained by the
Administrative Office of the Courts in its confidential files containing the
names of persons granted expunctions. The Commission may deny, suspend, or
revoke a person's certification based solely on that person's felony conviction,
whether or not that conviction was expunged."
SECTION 4. This act becomes effective December 1, 2007, and expires
December 1, 2014.