in the Court of Appeals 24 August 2017.
by the State from order entered 8 August 2016 by Judge Mary
Ann Tally in Onslow County Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General William P. Hart, Jr., for Appellant, the County of
Onslow, State of North Carolina.
Law PLLC, by Jason Christopher Yoder, for the
filed the original opinion in this matter on 19 September
2017. We subsequently allowed the State's Petition for
Rehearing on 11 October 2017 in order to clarify our original
opinion. This opinion replaces the original opinion.
State appeals from an order of the trial court finding J.C.
("Petitioner") to be eligible for (1) an expunction
of a criminal charge to which Petitioner pleaded guilty in
1987 and (2) an expunction of the dismissal of a criminal
charge dismissed in exchange for Petitioner's guilty plea
to the other offense. The trial court granted
Petitioner's petitions for expunction pursuant to N.C.
Gen. Stat. § 15A-145.5 (2015) and N.C. Gen. Stat. §
15A-146 (2015) and ordered that the offenses be removed from
appeal, the State challenges only the portion of the trial
court's order granting Petitioner's petition for
expunction pursuant to N.C. Gen. Stat. § 15A-145.5,
making no argument in its brief concerning the expunction
pursuant to N.C. Gen. Stat. § 15A-146. We conclude that
the State has no statutory right to appeal an order of
expunction made pursuant to N.C. Gen. Stat. § 15A-145.5,
and we hereby grant Petitioner's motion to dismiss the
appeal can be taken only from such judgments and orders as
are designated by the statute regulating the right of
appeal." Veazey v. City of Durham, 231 N.C.
357, 362, 57 S.E.2d 377, 381 (1950); see also State v.
Harrell, 279 N.C. 464, 183 S.E.2d 638 (1971) (holding
that in general, the State cannot appeal from a judgment in
favor of a defendant in a criminal proceeding in the absence
of a statute clearly conferring that right).
Court has previously held that where the State fails to
demonstrate its right to appeal, "no appeal can be
taken, and our Court is without jurisdiction over the
appeal." State v. Bryan, 230 N.C.App. 324, 329,
749 S.E.2d 900, 904 (2013). Here, the State argues that our
Court has jurisdiction over this appeal pursuant to N.C. Gen.
Stat. § 7A-27 (2015). However, we conclude that N.C.
Gen. Stat. § 15A- 1445 is the statute which determines
our jurisdiction in this matter because the trial court's
order of expunction pursuant to N.C. Gen. Stat. §
15A-145.5 is part of a criminal proceeding.
Criminal Procedure Act is codified in Chapter 15A of our
General Statutes. Our General Assembly has provided in that
Act that "[r]elief from errors committed in criminal
trials and proceedings . . . may be sought by . . . [a]ppeal,
as provided in Article 91 [of the Act]." N.C. Gen. Stat.
§ 15A-1401 (2015). Article 91 of Chapter 15A contains
N.C. Gen. Stat. § 15A-1445, which sets forth the
circumstances where the State has the right to
appellate review in criminal proceedings. See N.C.
Gen. Stat. § 15A-1445 (2015).
conclude that the trial court's order of expunction
pursuant to N.C. Gen. Stat. § 15A-145.5 is part of a
"criminal proceeding, " and, therefore, N.C. Gen.
Stat. § 15A-1445 - and not N.C. Gen. Stat. § 7A-27
- is the relevant statute in determining the State's
right to appeal in this case. Specifically, the General
Assembly has chosen to include the expunction law as part of
the Criminal Procedure Act, suggesting that it intended for
expunction proceedings thereunder to be considered a
"criminal proceeding." Further, the General
Assembly has expressed in N.C. Gen. Stat. § 15A-145.5
that a petition filed thereunder "is a motion in the
cause in the case wherein the petitioner was convicted."
N.C. Gen. Stat. § 15A-145.5(c)(3).
Supreme Court has pointed out that the statute "which
permits an appeal by the State in a criminal case is
contained in [ N.C. Gen. Stat. §] 15A-1445" and
that this statute is to be "strictly construed."
State v. Elkerson, 304 N.C. 658, 669-70, 285 S.E.2d
784, 791-92 (1982).
because N.C. Gen. Stat. § 15A-1445 clearly does not
include any reference to a right of the State to appeal from
an order of expunction under N.C. Gen. Stat. §
15A-145.5, we are compelled to conclude that the General
Assembly did not intend to bestow such a right at the time
the statute was adopted. "It is for the legislative
power, not for the courts, to consider whether th[e]
[statute] should  be extended" to include such a
right. Hodges v. Lipscomb, 128 N.C. 57, 58, 38 S.E.
281, 282 (1901). And while we note that our court has, on
several occasions, reviewed expunctions, we have obtained
jurisdiction to do so pursuant to the granting of a petition
submitted to our Court by the State for writ of
certiorari. See, e.g., State v. Frazier,
206 N.C.App. 306, 697 S.E.2d 467 (2010) (granting the
State's petition for certiorar ...