Criminal Law--expungement--age requirement
The trial court erred by granting appellee's petition for expunction of her conviction when
she was twenty-two years old for possession of one-half ounce or less of marijuana in violation of
N.C.G.S. § 90-95(a), because N.C.G.S. § 90-96(e) requires that a person who seeks to have his
or her record expunged must meet the age requirement of not being over twenty-one years of age
at the time of the offense.
Attorney General Michael F. Easley, by Assistant Attorney
General John J. Aldridge, III and Associate Attorney General
Jeffrey C. Sugg, for the State.
Harrington, Ward, Gilleland & Winstead, LLP, by Eddie S.
Winstead, III, for the appellee.
WALKER, Judge.
On 8 September 1993, the appellee, Heather Rachelle Spencer
(Ms. Spencer), pled guilty to the charge of possessing one-half
ounce or less of marijuana, a controlled substance included within
Schedule VI of the North Carolina Controlled Substance Act, in
violation of N.C. Gen. Stat. § 90-95(a)(1999). Ms. Spencer was 22
years of age at the time she committed the offense. Later, on 10
August 1998, Ms. Spencer filed a petition for expunction of her
conviction, pursuant to N.C. Gen. Stat. § 90-96(e)(1999). The
trial court granted her petition by order dated 9 February 1999.
Upon receiving a copy of the order for expungement, Dalila Loran-Parker of the State Bureau of Investigation (SBI) requested
clarification from the trial court regarding the order for
expungement, since it was her understanding that “Ms. Spencer's age
disqualifies her from obtaining relief under N.C.G.S. 90-96(e).”
The trial court responded by way of correspondence, stating “the
[s]tatute gives the court broad authority to expunge the records of
anyone convicted of a misdemeanor possession of [a] controlled
substance.” (emphasis added). The Court of Appeals granted the
State's writ of certiorari on 29 October 1999 to review the order
for expungement. On appeal, the State argues that the trial court
erred in granting Ms. Spencer's petition for expunction because she
was over 21 years of age at the time she committed the offense.
The State therefore argues that the trial court exceeded its
statutory authority.
It is well settled in this State that a person may have his or
her record of criminal charges or convictions expunged under
certain circumstances. See N.C. Gen. Stat. § § 7B-3200 (1999);
15A-145-146 (1999); 90-96(b), (d) and (e)(1999); and 90-113.14(b),
(d) and (e)(1999). We specifically address whether N.C. Gen. Stat.
§ 90-96(e), which provision is included within a statute entitled
“Conditional discharge and expunction of records for first offense”
is applicable to those persons who are over 21 years of age at the
time the offense was committed. N.C. Gen. Stat. § 90-96.
The language of N.C. Gen. Stat. § 90-96(e) provides, inpertinent part:
Whenever any person who has not previously
been convicted of an offense under thisArticle or under any statute . . . pleads
guilty to or has been found guilty of (i) a
misdemeanor under this Article by possessing a
controlled substance included within Schedules
II through VI of this Article, or by
possessing drug paraphernalia . . ., the court
may, upon application of the person not sooner
than 12 months after conviction, order
cancellation of the judgment of conviction and
expunction of the records of his arrest,
indictment, or information, trial and
conviction.
N.C. Gen. Stat. § 90-96(e)(emphasis added). This statute then
establishes the following procedures for obtaining an order for
expungement:
The judge to whom the petition [for
expunction] is presented is authorized to call
upon a probation officer for additional
investigation or verification of the
petitioner's conduct since conviction. If the
court determines that the petitioner was
convicted of (i) a misdemeanor under this
Article for possessing a controlled substance
included within Schedules II through VI of
this Article, or for possessing drug
paraphernalia . . ., or (ii) a felony under
G.S. 90-95(a)(3) for possession of less than
one gram of cocaine, that he was not over 21
years of age at the time of the offense, that
he has been of good behavior since his
conviction, that he has successfully completed
a drug education program approved for this
purpose by the Department of Health and Human
Services, and that he 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 or since the conviction
for the offense in question, it shall enter an
order of expunction of the petitioner's court
record.
Id. (emphasis added).
Ms. Spencer correctly notes that this statute requires the
trial court to expunge the record of a person not over age 21 if
the required conditions are satisfied. However, she contends thatthe use of the word “may” in this statute allows the trial cour
t to
exercise its discretion in ordering an expungement when the offense
was committed by a person over the age of 21.
To the contrary, the State contends that the legislature only
intended to authorize the trial court to order expungement of the
criminal record of a person not over 21 years of age at the time
the offense was committed. The State further contends that N.C.
Gen. Stat. § 90-96(e) lacks language granting the trial court's
discretionary authority to order expungement regardless of the
offender's age.
As to statutory interpretation, our Supreme Court has held
“[w]hen the language of a statute is clear and unambiguous,” there
is no room for judicial construction and the courts must give it
its plain meaning. Utilities Comm. v. Edmisten, Atty. General, 291
N.C. 451, 465, 232 S.E.2d 184, 192 (1977). However, “[w]hen a
statute is ambiguous or unclear in its meaning, resort must be had
to judicial construction to ascertain the legislative will. In re
Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 389 (1978), citing State
v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936). In so doing, the
court may interpolate a word, delete a word, or modify a word, when
the legislative intent is clear and such construction is necessary
to effectuate that intent. Humphries, 210 N.C. at 409-11, 186 S.E.
at 476. Further, “[w]here a literal interpretation of the language
of a statute would contravene the manifest purpose of the statute,
the reason and purpose of the law will be given effect and the
strict letter thereof disregarded.” In re Banks, 295 N.C. at 240,244 S.E.2d at 389. This is because “[w]here possible th
e language
of a statute will be interpreted so as to avoid an absurd
consequence . . . .” Id. (citation omitted). Accordingly, our
Supreme Court has held that “[w]ords and phrases of a statute may
not be interpreted out of context, but individual expressions 'must
be construed as a part of the composite whole and must be accorded
only that meaning which other modifying provisions and the clear
intent and purpose of the act will permit.'” In re Hardy, 294 N.C.
90, 95-96, 240 S.E.2d 367, 371-72 (1978), citing Watson Industries
v. Shaw, Comr. of Revenue, 235 N.C. 203, 210, 69 S.E.2d 505, 511
(1952).
Because the plain language of N.C. Gen. Stat. § 90-96 does
not clearly indicate whether a trial court has discretion to grant
an expungement to one who “pleads guilty or has been found guilty,”
we must determine the statute's legislative intent. Edmisten, 291
N.C. 451, 232 S.E.2d 184. We first look at the statute as a
“composite whole” to avoid construing any of its words or phrases
out of context. In re Hardy, 294 N.C. at 95-96, 240 S.E.2d at 371-
72. In so doing, we note that the statute contains four separate
provisions stating that a petitioner be “not over 21 years of
age[.]” N.C. Gen. Stat. § 90-96(a)-(e). Since the requirement for
an expungement of “not over 21 years of age” is woven throughout
the statute as a whole, this proves a legislative intent to reserve
expungement to those persons ages 21 and under. Id. In addition,
the statute lacks specific language granting discretion to thetrial court to order an expungement to a person over 21 years of
age. Id.
Moreover, the legislature obviously determined there are more
compelling reasons to permit a youthful offender to have his or her
record expunged without extending this privilege to a person over
the age of 21. We recognize there may be persons over the age of
21 at the time of the offense who are deserving and should likewise
have the ability to seek expungement; however, it is up to the
legislature to broaden expungement to those over the age of 21.
Based on the foregoing, we hold that a person who seeks to
have his or her record expunged must meet the age requirement of
being “not over 21 years of age at the time of the offense.” N.C.
Gen. Stat. § 90-96(e).
Reversed.
Judges McGEE and HORTON concur.
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