State v. Allen
| Decision Date | 19 April 2016 |
| Docket Number | No. COA15–708.,COA15–708. |
| Citation | 247 N.C.App. 179,783 S.E.2d 799 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Juan Fitzgerald ALLEN. |
Attorney General, Roy Cooper, by Assistant Attorney General, Tamika L. Henderson, for the State.
Appellate Defender, Staples Hughes, by James R. Grant, for defendant-appellant.
Where defendant was tried without objection and convicted on a misdemeanor citation in district court, appealed the conviction for a trial de novo in superior court and was convicted by jury on the same misdemeanor citation, again without objection to the citation, defendant's challenge to the jurisdiction of the trial court is without merit.
On 27 July 2013, defendant Juan Fitzgerald Allen was issued North Carolina Uniform Citations charging him with willfully operating a motor vehicle on a street or highway/public vehicular area (1) while subject to an impairing substance, (2) while his drivers' license was revoked, (3) while displaying an expired registration plate knowing the same to be expired, (4) without having a current electronic inspection, such vehicle requiring such an inspection, and (5) for transporting an open container of fortified wine or spirituous liquor. Defendant submitted to a chemical analysis of his breath approximately one hour after his arrest and registered a 0.23 blood alcohol level. The record indicates that a bench trial was held in Surry County District Court followed by a trial de novo commenced on 21 January 2015, during the criminal session in Surry County Superior Court, the Honorable Stuart Albright, Judge presiding.
During a pre-trial conference in superior court, the State made an unchallenged oral motion before the trial court to join for trial the charges of transporting fortified wine or spirituous liquor without being in an unopened original container, driving while impaired, and driving while license revoked. The State took a voluntary dismissal on charges of driving with an expired registration and no vehicle inspection. The matter proceeded to trial before a jury.
Following the presentation of all evidence and the trial court's instruction to the jury, the jury returned guilty verdicts against defendant for impaired driving, driving a motor vehicle on a highway while his driver's license was revoked, and transporting within the passenger area of a motor vehicle spirituous liquor in other than the manufacturer's unopened original container. The jury further found as an aggravating factor that "[a]t the time of the offense, ... defendant's license was revoked because of impaired driving." Based on the jury's finding of the aggravating factor, the trial court arrested judgment on the offense of driving a motor vehicle on a highway while his driver's license was revoked. In accordance with the remaining jury verdicts, the trial court entered judgment against defendant for the offense of impaired driving and sentenced him to an active term of two years. Judgment was entered against defendant for transporting an open container of spirituous liquor, for which he was sentenced to an active term of twenty days, to be served concurrent with his DWI sentence. Defendant entered written notice of appeal.
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On appeal, defendant argues the trial court lacked jurisdiction to try him for transporting an open container of spirituous liquor, a misdemeanor, when the charging citation failed to allege an essential element of that offense. Specifically, defendant contends that the charging citation was fatally defective as it failed to allege that the open container was transported in the passenger area of defendant's vehicle. We disagree.
McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17–18 (1966) (citations and quotation marks omitted). "[A] citation ... serves as the pleading of the State for a misdemeanor prosecuted in the district court, unless the prosecutor files a statement of charges, or there is objection to trial on a citation." N.C. Gen.Stat. § 15A–922(a) (2015). "A citation is a directive, issued by a law enforcement officer or other person authorized by statute, that a person appear in court and answer a misdemeanor or infraction charge or charges." Id. § 15A–302(a) (2015). "The citation must: (1) [i]dentify the crime charged, including the date, and where material, identify the property and other persons involved[.]" Id. § 15A–302(c).
Initially, we note that a defendant may object to a trial on a citation; "[a] defendant charged in a citation with a criminal offense may by appropriate motion require that the offense be charged in a new pleading." Id. § 15A–922(c). However, this Court has held that a defendant may not challenge the derivative jurisdiction of the superior court to try a misdemeanor offense on a citation, where that challenge was not raised before the district court. See State v. Phillips, 149 N.C.App. 310, 318, 560 S.E.2d 852, 857 (2002) ").
Defendant appeals from the conviction by jury of a misdemeanor allowed by his de novo appeal to superior court. "[T]he superior court has jurisdiction to try a misdemeanor ... [w]hen a misdemeanor conviction is appealed to the superior court for trial de novo...." N.C. Gen.Stat. § 7A–271(a)(5) (2015). The record does not indicate that defendant—tried and convicted in district court before his appeal to superior court for a trial de novo —challenged the charges in the citation during proceedings in the district court, or the superior court. Now before this Court, defendant raises this challenge to the jurisdiction of the trial courts for the first time. We acknowledge defendant is allowed to challenge jurisdiction for the first time on appeal. See N.C. R.App. P. 10(a)(1) (2015) ("[W]hether the court had jurisdiction over the subject matter, and whether a criminal charge is sufficient in law, may be made the basis of an issue presented on appeal."). However, the ability to raise a jurisdictional challenge at any time does not ensure that the jurisdictional challenge has merit.
Defendant argues that "[a] citation,...
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State v. Jones
...an open container offense: operating a motor vehicle while on a public street or highway. The trial court, citing State v. Allen , ––– N.C. App. ––––, 783 S.E.2d 799 (2016), denied Defendant's motion. The jury found Defendant guilty of the open container charge and not guilty of speeding. D......
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