              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-653

                                Filed: 3 March 2020

Wake County, No. 07-CRS-729

STATE OF NORTH CAROLINA

             v.

LUIS GUILLERMO NEIRA, Defendant.


      Appeal by Defendant from order entered 13 June 2019 by Judge Vinston Rozier

in Wake County Superior Court. Heard in the Court of Appeals 21 January 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Anton M. Lebedev for the Defendant.


      BROOK, Judge.


      Luis Guillermo Neira (“Defendant”) appeals from an order denying his petition

for the expunction of his conviction over ten years ago of felonious speeding to elude

arrest. Because we hold that the trial court erred in determining that Defendant was

ineligible for an expunction, we reverse and remand.

                                     I. Background

      Defendant was charged 9 January 2007 by arrest warrant with felony speeding

to elude arrest and by criminal citation with speeding and driving while impaired
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                                 Opinion of the Court



(“DWI”) in Wake County District Court. Defendant’s arrest warrant charged that

Defendant

             operate[d] a motor vehicle on a higway [sic] while fleeing
             or attempting to elude [a law enforcement officer] who was
             in lawful perforance [sic] of his duties by

             (1)   speeding in excess of 15 mph over the speed limit[]

             (2)   reckless driving

             (3)   gross impairment of an impairing substance[.]

      Defendant was indicted 6 March 2007 in Wake County District Court for

felonious speeding to elude and DWI; the charges stemmed from the same events of

9 January 2007. Defendant was convicted by a jury on 12 September 2007 of felonious

speeding to elude arrest and of DWI. The trial court found, as a mitigating factor,

that “Defendant was significantly impaired by alcohol” when he committed the

offense. The trial court sentenced Defendant to four to five months in the custody of

the North Carolina Department of Corrections for the charge of speeding to elude.

The trial court also sentenced Defendant to 120 days on the charge of impaired

driving. It suspended that sentence upon Defendant’s successful completion of 24

months’ supervised probation.

      Defendant filed a petition for expunction of the speeding to elude charge in

Wake County Superior Court on 1 November 2018. As part of his petition, Defendant

submitted affidavits of support from members of the community asserting that he has



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good character and a good reputation in the community.           The State opposed

expunction because the charge for “fleeing to elude [was filed under] the same file

number as DWI. This is an offense ‘involving impaired driving.’” The trial court

denied Defendant’s petition for expunction, finding he was ineligible for an

expunction because the offense “involve[d] impaired driving per [N.C. Gen. Stat. §

]15A-156.6(a)(8a)[.]”

                                  II. Jurisdiction

        Defendants who have been denied the expunction of a conviction have no

appeal as of right. See N.C. Gen. Stat. § 15A-1444 (2019). However, Defendant filed

a petition for writ of certiorari on 14 June 2019, which this Court allowed on 3 July

2019.

                                    III. Analysis

        Defendant contends that the lower court erroneously determined Defendant

was ineligible for an expunction and, as a result, erroneously denied his expunction

petition. We agree.

                               A. Standard of Review

        Whether to grant an expunction is a discretionary determination.       North

Carolina General Statutes § 15A-145.5(c) provides that a person convicted of a

nonviolent misdemeanor or nonviolent felony, but who has no other misdemeanor or

felony convictions other than traffic violations, may petition for expunction of that



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                                   Opinion of the Court



person’s criminal record. N.C. Gen. Stat. § 15A-145.5(c) (2019). If the trial court finds

the petitioner eligible for expunction, “it may order that such person be restored . . .

to the status the person occupied before such arrest or indictment or information.”

Id. (emphasis added). Given its discretionary nature, the review of a denial of an

expunction will generally be reviewed solely for an abuse of discretion. See Little v.

Penn Ventilator Co., 317 N.C. 206, 217-18, 345 S.E.2d 204, 211-12 (1986) (“may”

indicates discretion).

      Here, however, Defendant alleges that the trial court misapplied our statutes

in holding that it had no choice but to deny Defendant’s expunction petition. Alleged

errors in statutory interpretation are errors of law that we review de novo. Armstrong

v. N.C. State Bd. of Dental Examiners, 129 N.C. App. 153, 156, 499 S.E.2d 462, 466

(1998); see also State v. Cotton, 318 N.C. 663, 668, 351 S.E.2d 277, 280 (1987) (“Where

the trial court has discretion but erroneously fails to exercise it and rules as a matter

of law, the prejudiced party is entitled to have the matter reconsidered.”). “Under a

de novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008) (internal marks and citation omitted). We therefore review the

question of whether the trial court erroneously denied Defendant’s expunction

petition de novo.

                           B. Denial of Expunction Petition



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      Defendant contends that the trial court erred in concluding that the offense

that Defendant sought to have removed from his criminal record “involve[d] impaired

driving per [N.C. Gen. Stat. § ]15A-156.6(a)(8a)” and, as such, was ineligible for

expunction.

      Under N.C. Gen. Stat. § 15A-145.5(a)(8a), a petitioner is ineligible for an

expunction of a conviction for “[a]n offense involving impaired driving as defined in

G.S. 20-4.01(24a).”   N.C. Gen. Stat. § 15A-145.5(a)(8a) (2019).       North Carolina

General Statutes § 20-4.01(24a) states:

              Offense Involving Impaired Driving. – Any of the following
              offenses:

              a. Impaired driving under G.S. 20-138.1.

              b. Any offense set forth under G.S. 20-141.4 when
              conviction is based upon impaired driving or a
              substantially similar offense under previous law.

              c. First or second degree murder under G.S. 14-17 or
              involuntary manslaughter under G.S. 14-18 when
              conviction is based upon impaired driving or a
              substantially similar offense under previous law.

              d. An offense committed in another jurisdiction which
              prohibits substantially similar conduct prohibited by the
              offenses in this subsection.

              e. A repealed or superseded offense substantially similar to
              impaired driving, including offenses under former G.S. 20-
              138 or G.S. 20-139.

              f. Impaired driving in a commercial motor vehicle under
              G.S. 20-138.2, except that convictions of impaired driving
              under G.S. 20-138.1 and G.S. 20-138.2 arising out of the


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             same transaction shall be considered a single conviction of
             an offense involving impaired driving for any purpose
             under this Chapter.

             g. Habitual impaired driving under G.S. 20-138.5.

N.C. Gen. Stat. § 20-4.01(24a) (2019).

      Here, the lower court denied Defendant’s petition for expunction, finding

Defendant not “eligible for an expunction of the offense[] listed . . . because [the

offense] involves impaired driving per 15A-145.5(a)(8a).” As a matter of fact, the

felonious fleeing to elude conviction Defendant seeks to have expunged here involved

impaired driving; it arose from the same incident resulting in his DWI conviction.

But the statutory regime defines expunction eligibility in term of the offense in

question. Felonious speeding to elude arrest is not an offense involving impaired

driving per N.C. Gen. Stat. § 20-4.01(24a). And, while it may seem counterintuitive

that an offense committed while driving impaired is not an offense “involving

impaired driving,” the statutory definition controls in this inquiry. See In re Clayton-

Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 203 (1974) (noting that where a

statute “contains the definition of a word used therein, that definition controls,

however contrary to the ordinary meaning of the word it may be.”). Therefore, the

lower court’s determination that Defendant was ineligible for an expunction of his

fleeing to elude conviction was an error of law.

      The State notes that even “a person with an eligible conviction is not entitled

to expungement” because N.C. Gen. Stat. § 15A-145.5(c) grants trial courts the

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discretion to grant or deny expunctions sought by eligible petitioners. We agree with

the State that whether to grant an expunction is a discretionary matter, and that the

trial court could have, in its discretion, denied Defendant’s petition after considering,

for example, that the sentencing court found Defendant was “significantly impaired

by alcohol[.]”   However, the trial court did not deny Defendant’s petition as an

exercise of discretion but rather because it found Defendant was ineligible for

expunction; this determination reflects an error of law.

                                    IV. Conclusion

      Having concluded that the trial court made an error of law in determining that

Defendant was ineligible for expunction of the offense of fleeing to elude arrest, we

must reverse the denial of Defendant’s petition for expunction and remand to the trial

court for it to exercise its discretion in determining whether to grant the petition.


      REVERSED AND REMANDED.

      Chief Judge McGEE and Judge STROUD concur.




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