Expunctions, how do they work? What is a PJC?

Contrary to common belief, a PJC (Prayer for Judgment Continued) does not solve every problem.  They are not a silver bullet.  They are very helpful with certain kinds of traffic tickets, but they also indefinitely postpone a final judgment in a criminal case.  This can really hurt your future.  Without a final judgment, there cannot be an expunction. You should know that opportunities to expunge a criminal record in North Carolina are relatively rare. Instead, criminal records eligible for expunction in North Carolina are generally limited to the following three categories:
  • A first-time, nonviolent offense committed more than 15 years ago
  • A first-time offense committed under age 18/22
  • A charge that was dismissed or disposed “not guilty”
A CRIMINAL RECORD often gives rise to significant barriers to gainful employment, affordable housing, family unification, and a variety of other benefits and opportunities essential to productive citizenship. In North Carolina, an expunction is the destruction of a criminal record by court order. An expunction (also called an “expungement”) of a criminal record restores the individual, in the view of the law, to the status he or she occupied before the criminal record existed. With rare exception, when an individual is granted an expunction, he or she may truthfully and without committing perjury or false statement deny or refuse to acknowledge that the criminal incident occurred. The primary exception to this is for purposes of federal immigration. Please see North Carolina General Statutes §15A-151 for other exceptions. This summary provides details of the following twelve expunction statutes:
  • Juvenile Record………………………………… NCGS §7B-3200
  • Misdemeanor Under Age 18…………………… NCGS §15A-145
  • Gang Offense Under Age 18…………………… NCGS §15A-145.1
  • Controlled Substance Under Age 22 …………… NCGS §15A-145.2
  • Toxic Vapors Under Age 22……………............. NCGS §15A-145.3
  • Nonviolent Felony Under Age 18……….……… NCGS §15A-145.4
  • Nonviolent Offense…………………………...... NCGS §15A-145.5
  • Prostitution Offense………………………......... NCGS §15A-145.6
  • Charge Resulting in Dismissal or Not Guilty ….. NCGS §15A-146
  • Identity Theft………………………………….... NCGS §15A-147
  • DNA Records………………………………....... NCGS §15A-148
  • Pardon of Innocence……………………………. NCGS §15A-149
In addition, this summary provides the following information and resources:
  • Certificates of Relief……………………………. NCGS §15A-173
  • Indigent Fee Waiver
  • Steps to Submitting a Petition for Expunction
  • How to Read an ACIS Criminal Record Report
  • Petition for Expunction of Nonviolent Offense, Sample
  • Petition for Expunction of Dismissed Charges, Sample
  • Petitioner’s Affidavit, Worksheet
  • Affidavit of Good Character, Worksheet
  • Affidavit of Good Character
More information and source material. Questions?  Contact us and the attorneys at David R. Payne law firm would be happy to speak with you. Read more "Expunctions, how do they work? What is a PJC?"

Supreme Court rules Indoor Grow Marijuana search warrant invalid based on anonymous tip

State v. Benters Synopsis: September, 2011 a Confidential Informant meets with Detective Hastings of the Vance County Sheriff's office and tells he knows where an indoor marijuana grow operation is in Henderson, N.C.  The CI tells him the name of the owner, the address, that the owner doesn't live there.  The officers perform a "knock and talk" and secure a warrant based on the C.I. statements and their own observations, such as gardening supplies and an unusually large light bill.  The police find a large indoor grow operation.  The defendant Benters, was charged with trafficking marijuana, among other things.  The defendant moved to suppress the search based on the defective warrant and constitutional violations.  The trial court granted the defendant's motion.  The State appealed.  The State Supreme Court sided with the Defendant, holding that conclusions by law enforcement and an essentially unidentified tipster could not sustain the warrant. From the opinion: Here Lieutenant Ferguson averred that “Detective Hastings has extensive training and experience with indoor marijuana growing investigations on the state and federal level,” and that Detective Hastings had subpoenaed defendant’s Progress Energy power records. Lieutenant Ferguson then summarily concluded that “the kilowatt usage hours are indicative of a marijuana grow operation based on the extreme high and low kilowatt usage.” As explained above, the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records. Kaluza, 272 Mont. at 409, 901 P.2d at 110; McManis, 2010 VT 63, ¶¶ 16-19, 188 Vt. at 195-97, 5 A.3d at 896. Therefore, these unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip. Campbell, 282 N.C. at 130-31, 191 S.E.2d at 756. We acknowledge that investigating officers or a reviewing magistrate may have some degree of suspicion regarding defendant’s “extreme high and low kilowatt usage” given that defendant “is not currently living at the residence.” These unspecified extremes also may be explained, however, by wholly innocent behavior such as defendant’s intermittently visiting his property. Thus, these circumstances may justify additional investigation, but they do not establish probable cause. We turn next to the officers’ observations of multiple gardening items on defendant’s property in the absence of exterior gardens or potted plants. In relevant part, the affidavit provides that law enforcement officers observed from outside of the curtilage multiple items in plain view that were indicative of an indoor marijuana growing operation. The items mentioned above are as followed [sic]; potting soil, starting fertilizer, seed starting trays, plastic cups, metal storage racks, and portable pump type sprayers. Detectives did not observe any gardens or potted plants located around the residence. Nothing here indicates “a ‘fair probability that contraband or evidence of a crime will be found in a particular place’ ” beyond Lieutenant Ferguson’s wholly conclusory allegations. State v. Benters, (5A14) Motion to suppress evidence; whether an affidavit based upon an anonymous tip established probable cause to issue a search warrant. Read more "Supreme Court rules Indoor Grow Marijuana search warrant invalid based on anonymous tip"

Do you need a “do-over”? And what is a Motion for Appropriate Relief?

Motion for Appropriate Relief   Did you get some bad advice?  Did you pay your ticket online without consulting an attorney?  Or you may have pled guilty due to coaxing by an officer or other unqualified party, and now your insurance has increased or you found out your license is suspended. If you believe your conviction was defective, there is a second chance available by a "Motion for Appropriate Relief" (MARs).  MARs can be filed for most criminal matters, including traffic violations, misdemeanors and felonies. For example, if you were convicted of a criminal offense and someone other than your attorney told you to plead guilty, that may be a defect that warrants an MAR. A MAR is a motion made after judgment to correct any errors that occurred before, during, or after a criminal trial or proceeding, including errors related to the entry of a guilty plea.  It is a legal mechanism that allows people who have been convicted of a crime to challenge their conviction because the conviction was obtained in violation of their Constitutional rights. The most common grounds raised in a MAR are:
  • violation of the right to effective assistance of counsel
  • Pleading guilty without advice of an attorney
  • Improper advice by unqualified parties such as police officers, DMV or Court personnel
  • newly discovered evidence
  • prosecutorial misconduct
  • actual innocence or
  • Illegality of sentence.
All the grounds for a Motion for Appropriate Relief under listed under N.C.G.S. § 15A-1415.    Under a related statute G.S. 15A-1414, a person convicted of a criminal offense may seek relief for any error that occurred before or during trial within 10 days after entry of judgment.   G.S. 15A-1417 describes the relief available when a court grants a motion for appropriate relief, including vacating of a conviction if the court finds it invalid for one of the reasons described in G.S. 15A-1415. An order vacating a conviction does not necessarily terminate the criminal case; the State may retry the defendant unless, in addition to vacating the conviction, the court enters an order dismissing the charges. The Court has the authority to order that an MAR or dismissal nunc pro tunc, a Latin phrase literally meaning "now for then," is a concept derived from the common law that is utilized by courts as clerical correction or as an equitable remedy. An order issued nunc pro tunc has retroactive legal effect, essentially modifying a previous order or entering an effective date of a court order retroactively. This can be critical when your license is suspended by DMV because of prior convictions that were obtained defectively.   Filing a Motion for Appropriate Relief can be very complicated depending on the case. An experienced attorney will review your case, and may need to interview witnesses, investigate the facts of the case, review the discovery that leads to new evidence, and review the entire history of the case from start to finish. Sometimes the court will require an evidentiary hearing to be held on the motion, where the lawyer will have to call witnesses, present evidence, and challenge the State's evidence, and make arguments to the court.   Hiring the right attorney for the job can be the difference between a winning motion and a losing motion.  Call today for a free consultation on whether an MAR is the right action for you. Read more "Do you need a “do-over”? And what is a Motion for Appropriate Relief?"