This post was co-written by Erin Catlett, a Fox Rothschild summer associate and rising third-year law student at UNC-Chapel Hill. Join me in welcoming Erin to the fascinating world of North Carolina appellate practice and procedure. EBS
Does the statutory right to appellate review of a superior court’s final judgment under N.C. Gen. Stat. § 7A-27(b)(1) apply to a criminal appeal by the State? That is the central question a divided Supreme Court addressed a little over a month ago in State v. J.C.
The underlying facts in J.C. concerned the expunction of the arrest, trial, and conviction records of a former juvenile defendant (i.e., J.C.). In May 1986, J.C. pleaded guilty to an indecent liberties charge. Under N.C. Gen. Stat. §§ 15A-145.5 and 15A-146, nonviolent felony and misdemeanor records may be expunged after 15 years for “youthful offenders” who have had no other convictions outside of traffic violations. Expungement proceedings are designed to restore non-violent, juvenile offenders to the “status the person occupied before such arrest or indictment or information.” J.C., slip op. at 2 (citing N.C. Gen. Stat. §§ 15A-145.5 and 15A-146).
In June 2015, J.C. filed a petition for expunction of his almost 30-year-old criminal record. At the time of J.C.’s conviction, indecent liberties offenses were Class H felonies—a classification level eligible for expunction proceedings. In 2005, however, the General Assembly elevated indecent liberties offenses to a Class F felony—a classification level ineligible for expunction.
The legal question was whether the offense classification level was evaluated (1) at the time of J.C.’s offense and conviction or (2) when J.C. instituted expunction proceedings. The trial court concluded it was the former and granted J.C.’s petition for expunction.
The State noticed an appeal. Before the Court of Appeals could reach the underlying legal question, it had to decide whether the Court of Appeals had appellate jurisdiction to review the expungement order. The State contended that the expungement order was a final judgment, appealable as of right under N.C. Gen. Stat. § 7A-27(b)(1). That statute provides that an “appeal lies of right directly to the Court of Appeals” from
any final judgment of a superior court, other than one based on a plea of guilty or nolo contendere, including any final judgment entered upon review of a decision of an administrative agency, except for a final judgment entered upon review of a court martial under G.S. 127A-62.
The Court of Appeals determined that the State had no right to appellate review and dismissed the appeal. After granting the State’s petition for discretionary review, the Supreme Court in May 2019 affirmed the Court of Appeals’ dismissal by a 4-3 decision.
To avoid double jeopardy concerns, statutes authorizing appeals by the State in criminal cases are strictly construed against the State. N.C. Gen. Stat. § 15A-1445 (entitled “Appeals by the State”) lists trial court orders that the State may appeal–and expungement orders are not on that list.
The State sought to take the case outside of section 15A-1445 by arguing that expunction hearings—similar to satellite-based monitoring proceedings—are separate proceedings that produce civil judgments that are appealable as of right under N.C. Gen. Stat. § 7A-27.
Justice Earls’ majority opinion (joined by Justices Beasley, Hudson, and Morgan) rejected the State’s position that expunction proceedings are civil in nature. The justices relied on the plain language of N.C. Gen. Stat. § 15A-145.5(c)(3), which provides that an expunction request is “a motion in the cause in the case wherein the petitioner was convicted.” Id. (emphasis added). Accordingly, the majority concluded that an expunction petition is “part of the underlying criminal proceeding, making expunctions criminal matters.” J.C., slip op. at 6.
The State had a backup argument: Even if an expunction order is criminal in nature, it is still appealable under N.C. Gen. Stat. 7A-27(b)(1)—the general, appellate jurisdiction statute. In rejecting this argument, the majority noted that the Supreme Court has previously held that the only statute which permits the State to pursue a criminal appeal is N.C. Gen. Stat. § 15A-1445. Consequently, the majority affirmed the Court of Appeals opinion that the State has no statutory right to appellate review of an expunction order.
In dissent, Justice Newby (joined by Justices Ervin and Davis) would have read N.C. Gen. Stat. § 7A-27(b)(1) as providing either party a right to appeal an expunction order because expunction orders are final judgments of a superior court. J.C., slip op. dissent at 1. The dissent also would have classified expunction hearings not as criminal proceedings, but as “later in time ancillary” proceedings–similar to post-conviction sex offender registrations and satellite based monitoring proceedings. J.C., slip op. dissent at 5-6.
Noting that the law “requires equal treatment of everyone similarly situated, the dissent warned that the majority’s decision was “opening the door to inconsistent expungement decisions.” J.C., slip op. dissent at 1. The majority rejected these predictions by noting that the State could request equitable review of expungement rulings by petition for writ of certiorari. J.C., slip op. at 11.
Who has the better argument—the majority or the dissent? Anyone see any lurking issues of appellate practice and procedure not directly addressed by State v. J.C.? For example:
- Why doesn’t N.C. Gen. Stat. § 7A-27(b)(1) provide a general right to appeal final judgments in criminal cases? Take a look at the text of subsections 7A-27(b)(2) and (b)(3). These subsections give parties the right to appellate review of two other types of orders: (1) district court final judgments and (2) district and superior courts “interlocutory orders and judgments” that (among other things) affect a substantial right. These two subsections expressly limit the right to appellate review to rulings issued in “civil action[s].” Section 7A-27(b)(1) does not contain the same “civil action” limiting language. Indeed, it arguably contains language suggesting that appeals of criminal final judgments are authorized by subsection 7A-27(b)(1) (i.e., “From any final judgment of a superior court, other than one based on a plea of guilty or nolo contendere . . . .”).
- Is an expunction order necessarily a “final judgment?” After all, a final judgment in State v. J.C. was entered over thirty years prior when J.C. pled guilty and was sentenced. Can there be more than one “final judgment” in a cause? Or could expungement orders be characterized as post-judgment orders? In other words, does a trial court’s ruling on a post-trial, criminal motion necessarily fall within section 7A-27(b)(1)? Can any guidance be gleaned from N.C. Gen. Stat. § 15A-1401, which addresses appeals from post-trial criminal motions, but authorizes these appeals only “as provided in” Articles 89 and 91 of Chapter 15A—making no reference to Chapter 7A?
- The dissent predicts that “in all probability” a criminal defendant will have no right to appeal an expunction order under § 7A-27(b)(1). J.C., slip op. dissent at 6. Would the majority necessarily agree?
- Any other areas where the Supreme Court’s opinion in State v. J.C. might reverberate?
- The Supreme Court noted that the State previously had sought review of unfavorable expungement orders by petition for writ of certiorari–rather than by appeal of right. In J.C., the State failed to file a petition for writ of certiorari until after the Court of Appeals dismissed the State’s appeal. See State v. J.C., 808 S.E.2d 154, 156 (N.C. Ct. App. 2017). If the State had sought certiorari review of the expungement order early on, would the petition likely have been granted?
Let us know your thoughts in the comments below.
–Beth Scherer & Erin Catlett