                IN THE SUPREME COURT OF NORTH CAROLINA

                                      No. 336A17

                                 Filed 26 October 2018

 STATE OF NORTH CAROLINA

              v.
 DARYL LAMONT JONES



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 701 (2017), finding no error in a

judgment entered on 15 June 2016 by Judge George B. Collins, Jr. in Superior Court,

Wake County. Heard in the Supreme Court on 16 April 2018.


      Joshua H. Stein, Attorney General, by Robert C. Montgomery, Senior Deputy
      Attorney General, and Daniel P. O’Brien, Special Deputy Attorney General, for
      the State.

      Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate
      Defender, for defendant-appellant.


      MORGAN, Justice.


      Defendant Daryl Lamont Jones was convicted of operating a motor vehicle

when having an open container of alcohol in the passenger compartment while alcohol

remained in his system. Defendant appealed his conviction to the Court of Appeals

which, in a divided opinion, found that the citation that charged the offense was

legally sufficient to properly invoke the trial court’s subject-matter jurisdiction. State

v. Jones, ___ N.C. App. ___, ___, 805 S.E.2d 701, 706 (2017). The dissenting judge did
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                                   Opinion of the Court



not believe that the citation met the statutory requirements for a valid criminal

pleading in this State. Id. at ___, 805 S.E.2d at 712. Upon review, we conclude that

the citation sufficiently and properly vested the trial court with subject-matter

jurisdiction in this criminal proceeding and we thus affirm the decision of the Court

of Appeals.


 I.   Factual and Procedural Background


      On 4 January 2015, while driving his vehicle in Wake County, defendant was

cited for speeding and charged with operating a motor vehicle when having an open

container of alcohol while alcohol remained in his system. Defendant was not charged

with driving while impaired. The fill-in-the-blanks citation form utilized by the

charging officer stated that the officer

              has probable cause to believe that on . . . Sunday, the 04
              day of January, 2015 at 10:16PM in the county named
              above [defendant] did unlawfully and willfully

              OPERATE A MOTOR VEHICLE ON A STREET OR
              HIGHWAY AT A SPEED OF 62 MPH IN A 45 MPH ZONE
              (G.S. 20-141(J1))

              and on . . . Sunday, the 04 day of January, 2015 at 10:16PM
              in the county named above [defendant] did unlawfully and
              willfully WITH AN OPEN CONTAINER OF ALCOHOLIC
              BEVERAGE AFTER DRINKING (G.S. 20-138.7(A))[.]

(Underlined language added by the officer to supply the pertinent information

regarding the charged offenses in the blanks provided on the citation).



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      Defendant filed a motion to dismiss the open container charge on grounds that

the citation was fatally defective such that the trial court lacked jurisdiction. The

district court denied the motion and found defendant guilty as charged of both

offenses. Defendant appealed his convictions to the Superior Court, Wake County.

On 15 June 2016, a jury found defendant guilty of operating a vehicle while having

an open container but found him not guilty of speeding. Defendant was sentenced on

the same day to a twenty-day term of incarceration, which was suspended subject to

six months of unsupervised probation. Defendant appealed his conviction to the

Court of Appeals.

      In the Court of Appeals, defendant argued that the trial court lacked

jurisdiction to try him for operating a motor vehicle while having an open container

because the citation purporting to charge him with that offense failed to allege all of

its essential elements. Id. at ___, 805 S.E.2d at 705. In a divided opinion filed on 5

September 2017, the Court of Appeals found no error. The majority of the court

explained that N.C.G.S. § 15A-302(c) establishes requirements for citations like the

one issued here. The majority further noted that the official commentary to Article

49, “Pleadings and Joinder,” which is part of the Criminal Procedure Act embodied in

Chapter 15A, states that a citation, which “constitutes the ‘pleading’ for misdemeanor

criminal cases, . . . . ‘requires only that the crime be “identified.” ’ ” Id. at ___, 805

S.E.2d at 703. The commentary further states that a defendant has the right under

N.C.G.S. § 15A-922(c) to object to the description of the crime in a citation and


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“require a more formal pleading.” Id. at ___, 805 S.E.2d at 704 (emphasis omitted)

(quoting N.C.G.S. ch. 15A, art. 49 official cmt. (2015)).       Therefore, the majority

concluded that “[t]o the extent there was a deficiency in the citation, [d]efendant had

the right to object to trial on the citation by filing a motion” requiring that he “be

charged in a new pleading,” with any such objection being filed in the district court

division. Id. at ___, 805 S.E.2d at 704 (quoting N.C.G.S. § 15A-922(c) (2015)).

      The Court of Appeals majority determined that the citation complied with

N.C.G.S. § 15A-302(c) because the charging instrument “properly identified the crime

of having an open container of alcohol in the car while alcohol remained in his system,

charged by citing N.C.[G.S.] § 20-138.7(a) and stating [d]efendant had an open

container of alcohol after drinking.” Id. at ___, 805 S.E.2d at 705. The majority

reiterated that

             [b]ecause [d]efendant failed to file a motion pursuant to
             [N.C.G.S. §] 15A-922(c) [to object to the citation at the
             district court level], he was no longer in a position to assert
             his statutory right to object to trial on citation, or to the
             sufficiency of the allegations set forth in [N.C.G.S. §] 20-
             138.7(g).

Id. at ___, 805 S.E.2d at 705.

      The court’s majority went on to add that even assuming, arguendo, that

defendant was not required to object to the contents of the citation, “the failure to

comply with N.C.[G.S.] § 15A-924(a)(5) by neglecting to allege facts supporting every

element of an offense in a citation is not a jurisdictional defect.” Id. at ___, 805 S.E.2d



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at 705. Unlike the requirements for an indictment, the State constitution does not

require “a citation charging a misdemeanor to allege each element as a prerequisite

of the district court’s jurisdiction.” Id. at ___, 805 S.E.2d at 705. As a result, “any

failure of a law enforcement officer to include each element of the crime in a citation

is not fatal to the district court’s jurisdiction.”       Id. at ___, 805 S.E.2d at 706.

Furthermore, the majority found that “the record establishes that [d]efendant was

apprised of the charge against him and would not be subject to double jeopardy.” Id.

at ___, 805 S.E.2d at 706.

      The dissenting judge reasoned that the citation was defective due to its failure

to allege facts that “would support the elements of the offense” with which defendant

was charged. Id. at ___, 805 S.E.2d at 712 (Zachary, J., dissenting). She disagreed

with the majority’s determination that defendant’s failure to object to the citation in

the court of original jurisdiction—here, the district court—precluded his challenge to

jurisdiction. Id. at ___, 805 S.E.2d at 707. The dissent noted that N.C.G.S. § 15A-

1446(d) allows a defendant to assert errors on appellate review based upon the failure

of a pleading “to state essential elements of an alleged violation as required by

[N.C.]G.S. § 15A-924(a)(5),” even if no objection was made in the trial division because

a challenge to subject-matter jurisdiction can be raised at any time. Id. at ___, 805

S.E.2d at 707. The dissent noted that the majority opinion relied primarily on the

language of N.C.G.S. § 15A-302, which describes the information that a valid citation

must contain; however, the dissent distinguished between a citation used as a


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process, which serves as a directive that a person appear in court and answer a

misdemeanor or infraction charge or charges, and a citation used as a criminal

pleading, which must assert facts supporting every element of a criminal offense and

the defendant’s commission thereof. Id. at ___, ___, 805 S.E.2d at 706, 708. The

dissent concluded that the majority “fails to acknowledge this issue or to articulate a

basis for applying the requirements for use of a citation as a form of process, rather

than the specific statutory criteria for use of a citation as a criminal pleading.” Id. at

___, 805 S.E.2d at 710.

      For those reasons, the dissenting judge stated that she would hold that, “upon

application of the plain language of the statutes governing criminal pleadings in

North Carolina, the citation is invalid.” Id. at ___, 805 S.E.2d at 707. The dissenting

opinion included the following passage:

                    In sum, N.C.[G.S.] § 15A-921 expressly states that a
             citation may serve as the State’s pleading in a criminal
             case, and N.C.[G.S.] § 15A-924(a)(5) requires that every
             criminal pleading must contain facts supporting each of the
             elements of the criminal offense with which the defendant
             is charged. There do not appear to be any appellate cases
             holding that N.C.[G.S.] § 15A-924 does not apply to a
             citation used as the pleading in a criminal case. Under the
             plain language of these statutes, when a citation is used by
             the State as the pleading in a criminal case, it must—like
             any other criminal pleading—allege facts that support the
             elements of the offense with which the defendant is
             charged.

Id. at ___, 805 S.E.2d at 709. The dissent opined that the citation “fail[ed] to allege

that defendant operated a motor vehicle on a public road or highway, or even that he


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                                    Opinion of the Court



drove,” or “that the open container of alcohol was in the passenger area of defendant’s

car.” Id. at ___, 805 S.E.2d at 709. Accordingly, the dissent concluded that “[t]he

citation fails to allege facts that would support two of the three elements of the

offense: that defendant drove on a public highway, or that he had an open container

of alcohol in the passenger area of the car.” Id. at ___, 805 S.E.2d at 709. The dissent

concluded that, “[a]s a result, the citation did not comply with the requirements of

N.C.[G.S.] § 15A-924 [governing contents of pleadings] and did not confer subject

matter jurisdiction upon the trial court.” Id. at ___, 805 S.E.2d at 709.

II.    Analysis

       North Carolina General Statutes section 15A-921 states: “[T]he following may

serve as pleadings of the State in criminal cases:

              (1) Citation.
              (2) Criminal summons.
              (3) Warrant for arrest.
              (4) Magistrate’s order . . . after arrest without warrant.
              (5) Statement of charges.
              (6) Information.
              (7) Indictment.”

N.C.G.S. § 15A-921 (2017). Defendant was issued a citation for a misdemeanor

offense and ordered to appear in the District Court, Wake County. “Exclusive original

jurisdiction of all misdemeanors is in the district courts of North Carolina.” State v.

Felmet, 302 N.C. 173, 174, 273 S.E.2d 708, 710 (1981) (citing N.C.G.S. § 7A-272)).

       The criminal pleading that initiated proceedings against defendant in the

present case is a citation. “A citation is a directive, issued by a law enforcement officer


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or other person authorized by statute, that a person appear in court and answer a

misdemeanor or infraction charge or charges.” N.C.G.S. § 15A-302(a) (2017). A law

enforcement officer is authorized to “issue a citation to any person who he has

probable cause to believe has committed a misdemeanor or infraction.” Id. § 15A-

302(b) (2017). Statutory mandates require that a citation:

                    (1) Identify the crime charged, including the date,
                        and where material, identify the property and
                        other persons involved,

                    (2) Contain the name and address of the person
                        cited, or other identification if that cannot be
                        ascertained,

                    (3) Identify the officer issuing the citation, and

                    (4) Cite the person to whom issued to appear in a
                        designated court, at a designated time and date.

Id. § 15A-302(c) (2017).

      While N.C.G.S. § 15A-302 clearly establishes that a citation is sufficient to be

utilized as a criminal pleading as authorized by N.C.G.S. § 15A-921(1), nevertheless,

it is appropriate and instructive to reconcile the efficacy and properness of its usage

in light of N.C.G.S. § 15A-924(a)(5). N.C.G.S. § 15A-924(a)(5) states that a criminal

pleading must contain:

             A plain and concise factual statement in each count which,
             without allegations of an evidentiary nature, asserts facts
             supporting every element of a criminal offense and the
             defendant’s commission thereof with sufficient precision
             clearly to apprise the defendant or defendants of the
             conduct which is the subject of the accusation. When the


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             pleading is a criminal summons, warrant for arrest, or
             magistrate’s order, or statement of charges based thereon,
             both the statement of the crime and any information
             showing probable cause which was considered by the
             judicial official and which has been furnished to the
             defendant must be used in determining whether the
             pleading is sufficient to meet the foregoing requirement.

Id. § 15A-924(a)(5) (2017).

      At first blush, it appears that the statutory provisions of N.C.G.S. § 15A-302

and N.C.G.S. § 15A-921(1), when read together, are in conflict with the terms

contained in N.C.G.S. § 15A-924(a)(5). N.C.G.S. §§ 15A-302 and 15A-921(1) jointly

establish that a citation sufficiently operates as a criminal pleading when it merely

complies with the requirement, inter alia, to “[i]dentify the crime charged”; N.C.G.S.

§ 15A-924(a)(5), on the other hand, mandates a fuller recitation in a criminal pleading

of “[a] plain and concise factual statement in each count which . . . asserts facts

supporting every element of a criminal offense.” This seeming inconsistency between

and among the statutory enactments at issue in the present case is readily resolved

by the Official Commentary to Article 49 of the North Carolina General Statutes.

      While N.C.G.S. § 15A-924 sets forth specific requirements for criminal

pleadings, the opening Official Commentary to Article 49, “Pleadings and Joinder”—

within which N.C.G.S. § 15A-924 is found—expressly discusses citations used as

pleadings. See id. ch. 15A, art. 49 official cmt. (2017). “[T]he commentary to a

statutory provision can be helpful in some cases in discerning legislative intent.”

Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 425, 426 S.E.2d 685, 689 (1993)


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(citations omitted).    The commentary to Article 49 delineates the evolution and

application of different types of pleadings which are employable for the prosecution

of criminal cases in North Carolina, while particularly noting the requirements that

make each one legally sufficient. N.C.G.S. ch. 15A, art. 49 official cmt. In comparing

and contrasting the required components of these various criminal pleadings, the

Official Commentary details the salient considerations which are endemic to the first

four criminal pleading forms which were recognized in this State before the

introduction of the citation form:        “warrants and criminal summonses in

misdemeanor cases and informations and indictments in felony cases.” Id. Concepts

such as sufficiency of the pleading, the statement of the crime, a showing of probable

cause, an order for arrest, an order to appear, an order of commitment or bail, and

provisions for supplemental information are all identified and compared for each of

the original four types of criminal pleadings in North Carolina. Id. On the other

hand, in contrast to these other types of criminal pleadings, the Official Commentary

instructs that a citation simply needs to identify the crime that is being charged:

                    It should be noted that the citation (G.S. 15A-302)
             requires only that the crime be “identified,” less than is
             required in the other processes. This is a reasonable
             difference, since it will be prepared by an officer on the
             scene. It still may be used as the pleading, but rather than
             get into sufficiency of the pleading in such a case the
             [Criminal Code] Commission simply gives the defendant
             the right to object and require a more formal pleading. G.S.
             15A-922(c).

Id. (emphasis added).


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                                   Opinion of the Court



      Here, the fill-in-the-blanks citation form showed that the charging officer

             has probable cause to believe that on or about Sunday, the
             04 day of January, 2015 at 10:16PM in the county named
             above [defendant] did unlawfully and willfully

             OPERATE A MOTOR VEHICLE ON A STREET OR
             HIGHWAY AT A SPEED OF 62 MPH IN A 45 MPH ZONE
             (G.S. 20-141(J1))

             and on . . . Sunday, the 04 day of January, 2015 at 10:16PM
             in the county named above [defendant] did unlawfully and
             willfully WITH AN OPEN CONTAINER OF ALCOHOLIC
             BEVERAGE AFTER DRINKING (G.S. 20-138.7(A))[.]

      A studious focus on the applicable statutes, official commentaries to those

statutes, and relevant case law demonstrates that the citation in the case at bar is a

criminal pleading that is sufficient to authorize the trial court to exercise jurisdiction

over the charged criminal misdemeanor offense, while giving appropriate notice to

defendant of the offense for which he is being compelled to appear in court. The

citation at issue fulfills the salient requirements of N.C.G.S. § 15A-302, and therefore

this charging instrument is in compliance with the statute in that it was a directive

issued by a law enforcement officer for defendant to appear in court to answer the

misdemeanor charge of driving a motor vehicle on a highway while there is an

alcoholic beverage in the passenger area in other than the unopened manufacturer’s

original container and while the driver is consuming alcohol or while alcohol remains

in the driver’s body, thereby satisfying N.C.G.S. § 15A-302(a); the citation was issued

to defendant by the charging officer based upon the officer’s determination that



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probable cause existed to believe that the misdemeanor offense had been committed

by defendant, thereby satisfying N.C.G.S. § 15A-302(b); and the citation identified

the crime charged, contained the name and address of defendant, identified the

charging officer, and directed defendant to appear in the District Court, Wake County

in Courtroom 101 on Thursday, February 19, 2015 between the hours of 7:45 a.m.

and 3:30 p.m., thereby satisfying N.C.G.S. § 15A-302(c).1

       It is at this juncture in the analysis that the learned dissent in the appellate

court below begins to veer from the proper course, because the dissent focuses upon

the manner in which the statement of the charged crime is conveyed in the entirety

of the citation instead of the substance of the statement of the charged crime in the

whole citation. Although the dissent is discomforted by the fragmented language that

was utilized by the charging officer in composing the details of the misdemeanor

charge, nonetheless, the contents of the citation at issue as drafted by the officer

comport with the substantive requirements delineated in N.C.G.S. § 15A-302(c) and

suit the practical considerations afforded by the Official Commentary to Article 49,

“Pleadings and Joinder,” of the North Carolina General Statutes.

       If defendant had concerns about the level of detail contained in the citation,

N.C.G.S. § 15A-922(c) expressly provides that “[a] defendant charged in a citation

with a criminal offense may by appropriate motion require that the offense be charged



       1 Because the speeding charge which was also alleged in the citation is not relevant
to this analysis, any discussion of it is purposely omitted.

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in a new pleading.”     Id. § 15A-922(c) (2017).      This opportunity is afforded to a

defendant in recognition of the fact that N.C.G.S. § 15A-302 “provides for a separate

criminal process, applicable to any misdemeanor.”           N.C.G.S. § 15A-302 (2017).

Additionally, in light of this classification of a citation as a “separate criminal process”

that is required only to identify the crime at issue instead of providing a more

exhaustive “statement of the crime” as required in the other criminal pleadings, a

defendant such as the current one is given the right to object and require a more

formal pleading under N.C.G.S. § 15A-922(c). See id. ch. 15A, art. 49 official cmt.

The dissent in the appellate court below misidentifies this statutory right of a

defendant to require a criminal pleading more formal than a citation while the charge

is still pending in the court of original jurisdiction by conflating it with a defendant’s

challenge to a trial court’s jurisdiction over a criminal matter that can be raised even

on appeal. While a defendant is entitled to require the State to file a statement of

charges if he objects to being tried by citation alone, after defendant here did not

object to trial by citation in the court of original jurisdiction, he was no longer entitled

to assert that right. See State v. Monroe, 57 N.C. App. 597, 599, 292 S.E.2d 21, 22

(1982) (citing Felmet, 302 N.C. 173, 273 S.E.2d 708); see also State v. Phillips, 149

N.C. App. 310, 318, 560 S.E.2d 852, 857, appeal dismissed, 355 N.C. 499, 564 S.E.2d

230 (2002). In the case at bar, because defendant did not invoke his right through an

appropriate motion filed in District Court, Wake County to have the State charge him

in a new pleading while the matter was still pending in its court of original


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jurisdiction, defendant was precluded from challenging the citation in another

tribunal on those grounds because he was no longer in a position to assert his

statutory right to object to trial on citation after jurisdiction had been established and

his case had been determined in district court.

      Lastly, it is significant that a citation’s pleading contents are deemed to be

“reasonabl[y] differen[t]” from the more stringent requirements for other criminal

processes because the citation “will be prepared by an officer on the scene.” N.C.G.S.

ch. 15A, art. 49 official cmt. This approved relaxation of the established criminal

pleading contents for a citation is rooted in the realization that the execution of a law

enforcement officer’s investigative duties and responsibilities must embrace certain

practicalities and realities.   Among them is the unsettling, unpredictable, and

unsecure environment in which officers routinely issue citations as they patrol and

monitor the areas that they serve. An officer on his or her beat cannot reasonably be

expected to utilize the same measured standards of thoroughness and exactness in

syntax and grammar that a grand jury applies in its quietude in composing an

indictment or a prosecutor employs in drafting an information. Based upon these and

related considerations, the criminal pleading contents of a citation are designed and

allowed to be more relaxed than those of other criminal charging instruments.

      A citation that identifies the charged offense in compliance with N.C.G.S. §

15A-302(c) sufficiently satisfies the legal requirements applicable to the contents of

this category of criminal pleadings and establishes the exercise of the trial court’s


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jurisdiction. Under the facts and circumstances of the present case, the citation at

issue included sufficient criminal pleading contents in order to properly charge

defendant with the misdemeanor offense for which he was found guilty, and the trial

court had subject-matter jurisdiction to enter judgment in this criminal proceeding.

Accordingly, we affirm the decision of the Court of Appeals finding no error in the

trial court’s judgment.

      AFFIRMED.




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