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Home My WebLink About12-3483IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lynanne M. Spagnoleth No. 2 - ?/ ?j ,? L,? (Type your name) Vs. Driver's Lice nse/Auto Registration Appeal - s a Commonwealth of Pennsylvania rn 3 C- - -?; Department of Transportation Bureau of Drivers'Licensing 1 >_ r `.- o APPEAL OF DRIVER'S LICENSE/AUTO REGISTRATION SUSPENSION : ' AND NOW, this (enter today's date) May 31 2012 , comes the Appellant, (Typerour-namel Lynanne M. Spagnoletti by his/her attorney, . 0. 1, and states as follows: Appellant's PA operator's number or automobile registration number is: 26322646 2. PennDOT proposes, by Notice dated (insert "mailing" date here) May 7 , 2012 to suspend Appellant's VLdriving privileges Flautomobile registration for a period of (Insert length of suspension) 5 years pursuant to Section 3802A1 of the Vehicle Code, which suspension is to be effective (Insert suspension effective date) February 14 2012 ****A copy of the Notice sent by PennDOT is attached to this Appeal**** 3. The suspension of Appellant's operating privileges is contrary to law in that: (Check those which apply) F] The police lacked reasonable grounds to stop Appellant and / or request Appellant to submit to a chemical test. n Appellant did not knowingly or intelligently refuse a chemical test; F] The conviction on which Appellant's suspension is based was overturned by successful appeal, OR is currently under appeal. (Attach a copy of the court docket this Appeal). W] Other (Specify reason:) On April 3, 2011, 1 was held hostage and assaulted in York County that lasted for four long days. My 9 year old daughter was olso with me during this time. On April 6, 2011, 1 walked into PNC bank with my attacker by my side and somehow managed to slip the teller a plea for help. Soon after leaving the bank and returning to the hotel where welwere being held, my attacker was arrested. We were then placed in a York County protection shelter. As a result of the 4 day ordeal, 1 was put on several prescription medications by my neurologist for pain and as a coping mechanism. One week later my ex-husband took temporary custody of my daughter which in turn my doctor decided to increase my doses of medications. I received a total of 3 DUI from May 8-July 3, 2011. The sentence for the 2DUl's are running concurrent with no license suspension which occurred 5 days apart. I am appealing the 5 year habitual offender license suspension due to the extenuating circumstances that led to the GUI's and the fad that 1 currently reside in the state of Maryland where I continue trauma therapy and no longer require any medications. Attached you will find a letter from my doctor showing some of the medications I Was taking last year, a letter from my current therapist, and a newspaper article that describes the events listed above. Please look over the enclosed documents and lift the 5 year suspension. Q.C'T ?y-?qn3 zwra i 1 -OR- The suspension of Appellant's automobile registration is contrary to law in that: ? My failure to have insurance was for a period of less than 31 days AND I did not drive nor permit anyone else to drive my vehicle during the time it was without insurance. (Attach proof of insurance to this Appeal and either a notarized statement of PennDOT form MV-221 to document non-operation of the vehicle). Other (specify reason:) WHEREFORE, Appellant respectfully requests this Honorable Court to sustain the appeal from the suspension of operating privileges or automobile registration. Respectfully submitted, (Sign name here) Lynanne M. Spagnoletti (Type name here) VERIFICATION The undersigned hereby states that the statements made in the attached Appeal of Suspension or Registration are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements in the attached Appeal are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Signature: Type Name: Lynanne M. Sp89n0let6 Address: 45999 Rolling Road City / State / Zip Code: Lg xt Palk. A+INvland 20663 Telephone Number. 301-76'9-8298 Email address: 1'YnaPa9nK)1eth @ yahoo.com 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Lynanne M. Spagnoletti (Type your name) Vs. Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing No. Driver's License/Auto Registration Appeal CERTIFICATE OF SERVICE The undersigned hereby certifies that on may 31 , 2012 , 1 caused to be mailed by regular mail, postage prepaid, a copy of the Appeal, Order Scheduling Hearing, and all attachments, to: Date: May 31 2012 Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center, 3'd Floor 1101 South Front Street Harrisburg, PA 171042516 Signature: 14 - I 'IN Type your Name: Lynanne M. Spagnoletti Address: 45999 Rolling Road Telephone: 301-769-8298 City / State / Zip Code: Lexington Park, Maryland 20653 ** This form must be completely filled out and filed in the Prothonotary's office promptly after mailing the documents to PennDOT ** NXALDEN HELP FOR i CC:,. , F R M.CiBRC W February 23, 2012 RE: Lyanne Spagnoletti DOB: 05/31/1977 To Whom It May Concern. This letter is to advise of the participation and attendance of Ms. Spagnoletti in individual trauma counseling with Walden Sierra. Ms. Spagnoletti is scheduled for seven future appointments to continue addressing past traumatic events that took place which continue to impact her functioning. if you have an4 questions please contact me at 301-997-1.300 ext. 868. Sincerely. 0 WAQU µs Nichole Moneymaker, MS Trauma Recovery Specialist Walden Sierra ' ?000_.. Vll?inrti, (cr7Ccr 17rti? Ch1)I ?frt` i1ai1. Uttl'.'111c1 April 8, 2011 J/dsi YORK (AP) -- Police in central Pennsylvania say they arrested a man on assault charges after a woman passed a note to a bank teller saying she needed help. Northern York County Regional police say Jason Zacek, of Aberdeen, Md., was arrested Wednesday at a motel in Manchester Township. The alleged victim was found with a black eye and other Injuries and told police Zacek threatened to cut off her head. Investigators say Zacek had met the victim online, then began abusing and threatening her when they mot in person. Authorities say the woman managed to slip a note asking for help to a bank teller without Zacek noticing. Zacek is being held on $2,500 bail at York County Prison. It was not clear if he had an attomey http:lldailyitem.comI0100 newslx598333113IPolice-Woman-passes-plea-for-help-to-bank... 5/29/2012 W0-IM asses-plea-for-help-to-bank-teller,) PennDOT Driver and Vehicle Services - Online Documents Page 1 of 8 pelnnsy[vania PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING FULL DRIVER RECORD MAY 29 2012 DRIVER: LYNANNE M SPAGNOLETTI 45999 ROLLING RD LEXINGTON PARK, MD 20653 DRIVER LICENSE (DL) LICENSE CLASS: LICENSE ISSUE DATE: LICENSE EXPIRES: ORIG ISSUE DATE: MED RESTRICTIONS: LEARNER PERMITS: LICENSE STATUS: C MAR 08 2011 JUN 01 2014 MAR 13 1999 NONE SUSPENDED REVOKED CDL MED SELF CERT: OCCUPATIONAL LIMITED LICENSE (OLL) OLL LICENSE' CLASS: OLL LICENSE ISSUED: OLL LICENSE EXPIRES: OLL LICENSE STATUS: MEDICAL CERTIFICATE (MC) MC STATUS: DRIVER'S LICENSE NO: 26322646 DATE OF BIRTH: MAY 31 1977 SEX: FEMALE RECORD TYPE: REG LIC/ID COMMERCIAL DRIVER LICENSE (CDL) CDL LICENSE CLASS: CDL LICENSE ISSUED: CDL LICENSE EXPIRES: CDL ENDORSEMENTS: CDL RESTRICTIONS: CDL LEARNER PERMITS: CDL LICENSE STATUS: CDL LIC DOWNGRADED: SB ENDORSEMENT: PL LICENSE CLASS: PL LICENSE ORIG ISS: PL LICENSE ISSUED: PL LICENSE EXPIRES: PL LICENSE STATUS: MEDICAL EXAMINER (MM ME NAME: MC RESTRICTIONS: NONE ME TELEPHONE: MC ISSUED: ME REGISTRY NO: MC EXPIRES: ME LICENSE NO: ME SPECIALITY CODE: ME LICENSING JURISDICTION CODE: SKILL PERFOgMANCE EVALUATION (SPE) WAVIER/EXEMPT (W/E) SPE EFFECTIVE: W/E EFFECTIVE: NONE NONE SUSPENDED REVOKED httr%c-/h%nan%r Antl etata nn m/ArivPr CPP{/l!`PC/AmCCPrvIPt 1Qn 5 /?9/2. 41? rennLAv i iinver ana v enicte cervices - unime uocumems SPE EXPIRES: W/E EXPIRES: rage z or n REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS VIOLATION DATE: FEB 21 2000 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 051 MPH IN A 025 MPH ZONE CONVICTION DATE: MAR 01 2000 ACTION: ASSIGNED POINTS VIOLATION DATE: JUL 20 2004 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 044 MPH IN A 025 MPH ZONE CONVICTION DATE: AUG 03 2004 ACTION: ASSIGNED POINTS VIOLATION DATE: JUN 03 2009 VIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 035 MPH IN A 025 MPH ZONE COMM VEHICLE: NO HAZMAT: NO CDL HOLDER: NO CONVICTION DATE: JUN 15 2009 ACTION: ASSIGNED POINTS VIOLATION DATE: JUL 03 2011 VIOLATION: VEHICLE CODE: 3802A1 MAJOR VIOLATION DESCRIPTION: DUI GENERAL IMPAIRMENT COMM VEHICLE: NO HAZMAT: NO CDL HOLDER: NO CONVICTION DATE: SEP 30 2011 ACTION: NO ACTION OFFICIAL NOTICE MAILED OCT 31 2011 VIOLATION DATE: MAY 08 2011 VIOLATION: VEHICLE CODE: 3802D MAJOR VIOLATION DESCRIPTION: DUI CONTROLLED SUBSTANCES COMM VEHICLE: NO HAZMAT: NO CDL HOLDER: NO CONVICTION DATE: FEB 14 2012 ACTION: SUSPENSION FOR 1 YEAR(S) EFFECTIVE FEB 14 2012 OFFICIAL NOTICE MAILED MAR 22 2012 VIOLATION DATE: JAN 11 2012 VIOLATION: VEHICLE CODE: 1533B https://www.dot3.state.pa.us/driver-services/AmsServlet.jsp 5/29/2012 rciuiuu urnver anu venicie services - vnitne uocuments DESCRIPTION: ENFORCEMENT AGREEMNT-NRVC UNDERLYING OFFENSE: F04, NO SEAT BELT USED VIOL. REPORT FROM MD (DLC CONY) COMM VEHICLE: NO HAZMAT: NO CDL HOLDER: NO ACTION: SUSPENSION EFFECTIVE APR 12 2012 OFFICIAL NOTICE MAILED APR 12 2012 COURT INFO: MDAN001 CITATION NO: HD16566 PHONE NO: (410)974-7177 vage i or 8 VIOLATION DATE: JUN 28 2011 VIOLATION: VEHICLE CODE: 3802A1 MAJOR VIOLATION DESCRIPTION: DUI GENERAL IMPAIRMENT COMM VEHICLE: NO HAZMAT: NO CDL HOLDER: NO CONVICTION DATE: APR 10 2012 ACTION: HABITUAL OFFENDER REVO FOR 5 YEAR(S) EFFECTIVE FEB 14 2013 OFFICIAL NOTICE MAILED MAY 07 2012 LICENSE RECEIVED FEB 14 2012 REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS NO ACCIDENTS DURING THIS REPORTING PERIOD *** END OF RECORD *** WID #:121502605016174 PROCESSED: 05/29/2012 1:39 PM https://www.dot3.state.pa.us/driver-services/AmsServlet.jsp 5/29/2012 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 05!29/12 LYNANNE M SPAIGNOLETTI DRIVER'S LICENSE NUMBER: 26322646 45999 ROLLING RD BIRTH DATE: 05/31/77 LEXINGTON PARK MD 20653 Dear MS. SPAGNOLETTI : This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified by the Department of Transportation (PENNDOT) that your driving privilege has been restored. Only after that may you drive. The date when you are eligible to have your driving privilege restored has not been determined. To determine this ELIGIBILITY DATE, you must resolve any issues listed in this letter as DRIVER'S LICENSE RETURN, INDEFINITE SUSPENSION, INDEFINITE CANCEL, INDEFINITE RECALL, and/or PRISON RELEASE REQUIREMENT. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a $25.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made payable to PENNDOT. Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Driver's License Return". https://www.dot3.state.pa.us/driver-services/AmsServlet.jsp 5/29/2412 PennDOT Driver and Vehicle Services - Online Documents LICENSE NO.. : 26322646 PAGE 2 PROOF OF INSURANCE -Within 30 days of your ELIGIBILITY DATE, provide a copy of one of the following to PENNDOT to show that all motor vehicles currently registered in Pennsylvania in :your name are insured: *Insurance ID card *Declarat.ion page of your insurance policy *Insurance Binder *An application of insurance to the PA Auto Insurance Plan if you do not own a motor vehicle currently registered in Pennsylvania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicles currently registered in Pennsylvania". Please include your name, address, driver's license number and date of birth on the statement. INDEFINITE SUSPENSION -You did not respond to a traffic citation (HD16566) in the following court: MDAN001 DISTRICT CRT OF MARYLAND P 0 BOX 6676 ANNAPOLIS MD 214014230 410-974-7177 Date of Violation: 01/11/12 Amount Owed: $25.00 Contact the court to satisfy the citation. (If the court information does not appear, write or call PENNDOT at the address or phone number listed a- the end of this letter). COURT ORDERED TREATMENT PROGRAM (ACT 122) -You must successfully complete the treatment program for alcohol or drug addiction ordered by the Court of YORK COUNTY, Court Number 4752, Court Term 2011. The Court must certify to PENNDOT that you completed the treatment program. PENNDOT recommends that you CONTACT YOUR PROBATION OFFICER and/or the Court to ensure that PENNDOT is properly notified. TERM SUSPENSION/REVOCATION -You have a 1 YEAR(S) suspension/revocation that began (or will begin) on 02/14/12. Credit for serving this suspension/revoca- tion began (or will begin) on 02/14/12 and will end on 02/14/13. The suspension/revocation resulted from a violation on 05/08/11 of Section 3802D, DUI CONTROLLED SUBSTANCES Page 5 of 8 httne•//nntnv Ar%tl etatP na ne/Arkypr comrirPe/AmcCPr%;1Pt icn /7A/1(117 Yennou i unver ana vemcte services - vnunu i»uunn u b LICENSE NO. : 26322646 PAGE 3 IGNITION INTERLOCK SYSTEM 441 You are required to have an approved Ignition Interlock System installed in your vehicle(s). Approximately 30 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. If you do not own a vehicle, you must still contact one of the vendors below to have a certificate of non-ownership completed. - Consumer Safety Technology, Inc. - 1-877-777-5020 - KeystoneSmartstart.com - 1-800-880-3394 - Alcolock PA INC - 1-800-452-1739 - LifeSafer - 1-866-342-4984 - Alcohol Detection Systems - 1-800-786-7394 - PA Interlock, Ultimate Protection, Inc.- 1-866-718-8606 - Draeger. Interlock, Inc. - 1-800-332-6858 - GuardianInterlock.com - 1-800-499-0994 - Allegheny County Interlock - 1-412-931-6107 - Dauphin County Interlock - 1-877-692-4218 TERM SUSPENSION/REVOCATION -You have a 5 YEAR(S) suspension/revocation that began (or will beain) on 02/14/13. Credit for serving this suspension/revoca- tion began (or will begin) on 02/14/13 and will end on 02/14/18. The suspension/revocation resulted from a violation on 06/28/11 of Section 3802A1, DUI GENERAL IMPAIRMENT This letter identified the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the MAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at: the beginning of this letter, on all documents you send to PENNDOT. Thank you. -e., https://www.dot3.state.pa.us/driver-services/AmsServlet.jsp 5/29/2012 - M Cumberland County Court of Common Pleas Court Summary Spagnoietti, Lynanne M. Mechanicsburg, PA 17055 Aliases: Spagnoletti, Lynanne Spagnoleti, Lynanne M. Spagnoletti, Lynanne Marie-elizab Closed Cumberland CP-21-CR-0002900-2011 Arrest Dt: Sag No St$tkrte Sentence Ut 1 75 § 3802 04/10/2012 DOB:05/31/1977 Sex: Female Eyes: Hazel Hair:Brown Race:Caucasian Proc Status: Bench Warrant Revoked - Clos DC No. OTN:L6426545 Disp Date: 09/30/2011 Disp Judge: Dougherty, Richard S. Jr. Grade Description Disposition Sentence Type Program Period Sentence Length M DUI: Gen Imp/Inc of Driving Safely - Guilty Plea (Lower Court) 1st Off Probation Other Min: 6 Month(s) Max: 6 Month(s) CP-21-CR-0000477-2012 Proc Status: Sentenced/Penalty Imposed DC No: OTN30902565 Arrest Dt: Disp Date: 04/1012012 Disp Judge: Guido, Edward E. Sep No S Grate Description Disposition Sertence Sentence Type Program Period Sentence length 1 75 § 3802 M DUI: Gen ImplInc of Driving Safely - Nolo Contendere 1st Off 04/10/2012 Probation Other Min: 6 Month(s) Max: 6 Month(s) 2 75 §j 3802 M DUI: Controlled Substance - Dismissed r Impaired Ability -1 st Offense York CP-67-CR-0004752-2011 Proc Status: Sentenced/Penatty Imposed DC No: Arrest Dt: 05/08/2011 Disp Date: 02/14/2012 Disp Judge: Kennedy, John S. DefAtty: McCabe, Scott Alan - (PR) Sim No StaW Grade Description Disposition Se n Sentence Type Program Period Sentence Lanath 1 75 § 3802 M DUI: Controlled Substance - Guilty Plea Impaired Ability - 1 st Offense 02/14/2012 IPP 6 months Min: 6 Month(s) Max: 6 Month(s) 2 75 § 3309 S Disregard Traffic Lane (Single) Nolte Prossed 3 75 § 3714 S Careless Driving Nolte Prossed 4 75 § 3745 S Acci Dam To Unattended Veh Or Nolte Prossed Propert OTN:L6306812 AOPC 3541 REV. 11/29/21911 Page i of 1 Printed: 5/3012012 9:32 PM Recent entries made in the court filing offices may not be immediately reflected on the court summary report. Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data. errors or omissions on these reports. Court Summary Report information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183. Please note that if the offense disposition information is blank. this only means that there is not a "final disposition' recorded in the Common Pleas Criminal Court Case Management System for this offense. In such an instance, you must view the public web docket sheet of the case wherein the offense is charged in order to determine what the most up-to-date disposition information is for the offense. LYNANNE M. SPAGNOLETTI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU : OFDRIVER LICENSING : NO. 12-3483 CIVIL TERM IN RE: APPEAL OF DRIVER'S LICENSE/ AUTO REGISTRATION SUSPENSION ORDER OF COURT AND NOW, this 5 h day of June, 2012, upon consideration of the above motion, a hearing is scheduled for Wednesday, October 24, 2012, at 9:30 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Christyl e L. Peck, J. ? Philip Bricknell, Esq. Office of Chief Counsel Department of Transportation Vehicle & Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for the Commonwealth V Lynanne M. Spagnoletti 45999 Rolling Road Lexington Park, MD 20653 :rc et P` e5 jKa. led G/&// a L s _ LYNANNE M. SPAGNOLETTI, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES. Respondent NO. 12-3483 CIVIL TERM APPEAL OF DRIVER LICENSE SUSPENSION ORDER AND NOW, this 24th day of October, 2012, the appeal filed in the above- captioned matter is: REMANDED to the Department of Transportation for correction of its records. DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this ,, appeal shall be REINSTATED. rr L ~1 _ CONTINUED and RESCHEDULED for the _ ~ ~'__ day of ~~ ~ E-~--~- , 20 / Z, at ~'~ ~ ~~ .m., in Couror~ ~ . ~~ ~ ~ --~ Room No. ~ of the Cumberland County Court`se~ ?_ Carlisle, Penns Ivania. r~`.,~ , ;.~ r" Y ._,~ :_ ..,_ ~,~ ~; r-- .~:: BY THE COURT: -'~ `~' ~' ~'-"~ " tw ~ -~. r ~w rv ~:.~ ._ ;~ - --= J . Attest: / Lynanne M. Spagnoletti, 45999 Rolling Road, Lexington Park, MD 20653 ~ Phifip M. Bricknell, Esq., PennDOT~, RiverFront Office Center, Office of Chief Counsel, 3`d Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 ~~ LYNANNE M. SPAGNOLETTI, Appellee V. IN THE COURT OF COMMON PLEAS COMMONWEALTH OF OF THE NINTH JUDICIAL DISTRICT PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Appellant • 2012-03483 CIVIL TERM IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Placey, C.P.J., 8 April 2013. The Commonwealth has appealed the 10 January 2013 Order of Court, sustaining the license suspension appeal of pro se litigant Lynanne Spagnoletti, hereinafter Licensee, by rescinding the five year license suspension as a habitual offender under Section 1542(a) of the Vehicle Code. Following two hearings, this opinion is written in support of the 10 January 2013 decision. STATEMENT OF FACTS In arriving at this decision, the court relied on the following findings of fact: 1. Jason Eric Zacek pled guilty on 18 November 2011 to terroristic threats with the intent to terrorize another, simple assault, false identification to law enforcement officers, and two counts of unlawful restraint—serious bodily injury in connection with an April 2011 assault on Licensee;' 2. The sworn facts from the affidavit of probable cause at that docket are as follows: Docket CP-67-CR-05413-201 I (York Crity.). On 04/6/2011 at 1607 hrs. I was dispatched to the Motel 6 room #320 in reference to a welfare check on [Licensee]; York City Police (OFF. Knarr) wanted our department to check her status because she gave a PNC bank teller a note in York City stating she needed help and wanted the police to report a domestic disturbance with a gentleman she met on line. I responded on scene and knocked loudly at room#320 numerous times. I announced myself as OFF. Greco NYCRPD. The room/door was locked and no one answered. I had the management staff obtain a key and entry was made. No one was inside and I found no problems. While closing the door I was approached by a white female, a young white female child, and a white male. The male saw police and suspiciously walked away and tried to flee the scene. The male was detained and brought back to room #320. The female was identified as the woman that gave the note to the bank teller. The woman [Licensee] stated she was assaulted and threatened by the male we had detained. I observed the female had visible black and blue marks/abrasions to both her upper arm areas. The female gave a positive identification on scene of the accused. I mirandized the accused and double locked the handcuffs. While in custody the male had no form of identification. The male gave the name of Jason Eric Zazek D.O.B 05-05-1975. No record was found in Pa or any other surrounding states. In speaking with the victim she advised a physical altercation occurred at the Super 8/Arsenal Rd., on 04-03-2011 at approx., 2300 hrs. While the physical domestic occurred the accused stated he would kill her and cut off her head somewhere in the mountains. The accused also stated he would bury her in the mountains so that no one could find the body. The victim stated the accused pushed, hit, and shoved her which caused the black and blue marks/abrasions to her both upper arm areas. I ran a Criminal History check on the accused with the name and D.O.B. he provided but no record was found in Pa or surrounding states. I believe the accused is giving false information to the police during an investigation of Terroristic Threats, Simple Assault, and Harassment. The accused was booked as John Doe due to the situation at hand. The accused also took the victims cell phone battery out of her phone so that she could not make any calls to 911 for police assistance. Based on the visible injuries on scene and her statements I charged the accused with the appropriate crimes. The victim was photographed by Cpl. Migitulski on scene. I supplied information to the victim on how to obtain a P.F.A. 2 2 Docket CP-67-CR-05413-201 1, Affidavit of Probable Cause(York Crity.). 2 3. Licensee's attempts to provide newspaper articles to substantiate the facts were limited to submission of the articles to the court, but they were not introduced as evidence;3 4. Licensee acknowledges that she did in fact get three (3) DUls in six (6) .4 weeks, 5. These arrests occurred following Licensee being "held hostage and raped in York County," wherein after she was "put on seven different medications as a coping mechanism."5 6. A second license appeal hearing was held on 10 January 2013, at which Licensee participated via telephone;6 7. Licensee's defense counsel from the two (2) DUls that occurred in Cumberland County appeared and described the medical situation as it was presented to the District Attorney's Office;' 8. The Public Defender's Office represented Licensee in both cases, which resulted in two (2) Section 3802(a)(1) General Impairment pleas;8 9. In light of the mitigating circumstances, Licensee was allowed to plead to the General Impairment, which would avoid a license suspension;9 3 Notes of Testimony, 12 Dec. 2012, p. 12-3, (hereinafter Dec. N.T. at Dec. N.T. at 7. 5 Dec. N.T. at 7. 6 Notes of Testimony, 10 Jan. 2013, p. 3, (hereinafter Jan. N.T. at 7 Jan. N.T. at 9-11. 8 Jan. N.T. at 5. 9 Jan. N.T. at 7. 3 10. Defense counsel acknowledged the focus of her representation was on mitigating any jail time and license suspension that would arise out of these convictions-10 11. Defense counsel candidly admits that the discussion of the collateral consequences of the criminal conviction, specifically the habitual offender designation, was not discussed with her client nor the District Attorney;" 12. The certified driving record shows that on 30 September 2011, the first DUI General Impairment conviction was entered in Cumberland County, arising out of a 3 July 2011 violation;12 13. This was followed by a second DUI Controlled Substances conviction in York County, with a one year suspension effective 14 February 2012, for a violation on 8 May 2011;1 3 14. The record finally shows a third DUI General Impairment conviction on 10 April 2012 in Cumberland County, arising out of a violation on 28 June 2011.14 DISCUSSION Under Section 1542 of the Vehicle Code, the Commonwealth is required to revoke the operating privilege of any person whose driving record meets the criteria defining a habitual offender. Revocation is mandatory, not discretionary. Johnson v. Commonwealth, 449 A.2d 121, 123 (Pa. Cmwth. 1982). Section 1542 provides: 10 Jan. N.T. at 15-6. Jan. N.T. at 12. 12 Commonwealth's Exhibit 1, Doc. #8. 13 Commonwealth's Exhibit 1, Doc. #8. 14 Commonwealth's Exhibit 1, Doc. #8. 4 (a) General rule.--The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A "habitual offender" shall be any person whose driving*record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter. (b) Offenses enumerated.--Three convictions arising from separate acts of any one or more of the following offenses . . . . Our Supreme Court has unequivocally stated "[p]lainly, under this language, DOT had no discretion over whether to revoke [an] appellant's operating license. Given three convictions within the prescribed time period, revocation was required." Commonwealth v. Bursick, 584 A.2d 291, 294 (Pa. 1990)." In the context of underage drinking offenses, our Supreme Court has stated that "[w]e would suggest to our legislature that it should be clearly stated on the citation, if it is not already, that a guilty plea to the offense of underage drinking will result in a license suspension. While we hold today that a licensee does not have to be warned of the collateral consequences of license suspension, we believe it would be more equitable and no great burden on the Commonwealth to provide such a warning." Commonwealth v. Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (emphasis added). As a result of Duffey, all underage drinking citations now contain a specific written warning, 1*5 When the only tool in your toolbox is a hammer, everything looks like a nail. Law enforcement, be it in criminal or civil jurisdiction, is imbued with discretion. The complex algorithm that is case resolution within our system of jurisprudence mandates, in order for the successful and economic court operation, that some discretion be involved. While the Commonwealth had no choice under Bursick but to initially suspend Licensee's operating privileges, it is within the Commonwealth's discretion whether or not to file an appeal. Thus, the Bursick decision does not mandate an appeal; it is still the Commonwealth's choice, given the finite resources at its disposal and other factors in the algorithm, to use their hammer. 5 which is on the reverse of all non-traffic summary citations.16 The Court Administrator of Pennsylvania, not the legislature, rectified this warning issue by amending the statewide form. Pa.R.Crim.P. 104. However, there are no corresponding form revisions to the longer, more serious license suspension meted out under the guise of a civil sanction for misdemeanor and felony charges. The chemical test warnings found in Section 1547 of the Vehicle Code are mandated to be provided to a licensee verbatim from the statute to ensure specific notice of the potential suspension for refusal is provided. "If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up 18 months." PennDOT Form DL-26(3-12). In the wake of certain United States Supreme Court rulings, our Supreme Court has recently readdressed the distinction between punitive and collateral consequences of a criminal conviction, and determined that the trial court must ascertain whether the consequence is "so punitive either in purpose or effect as to negate the intention to deem it civil." Commonwealth v. Abraham, 36 WAP 2010, 2012 WL 7682814 *6 (Pa. Dec. 7, 2012). The Supreme Court went on to outline this distinction and specifically cited Duffey, which dealt with a ninety (90) day license suspension arising out of an offense under the Crimes Code. Application of law to facts. The applicable case law that addresses license suspension consequences as civil in nature has been with us since the 1990's, but is still relied upon in meting out suspensions. Some would say this law is well settled in "This warning appears on the reverse of a defendant's copy of every non-traffic summary citation just above the tear off plea section. AOPC Form 407-95(Rev 2/2012). 6 their opening remarks. Technically speaking, the Commonwealth's habitual offender designation is accurate and the suspension should have been upheld. Being decades old, the well settled case law needs to be revisited in light of changes in the law in those intervening years. The Duffey case encourages prior notice be given in cases involving civil license suspensions. The Court Administrator of Pennsylvania heeded that encouragement. The legislature, motivated by the Federal government, rewrote the Driving Under the Influence statutes to Driving After Imbibing, which includes Section 1547, heeding the encouragement of our Supreme Court in its various revisions over the years. Now, there are a myriad of cases that address the mandatory warnings of the consequences of a refusal as a predicate for the Commonwealth to be able to suspend a license for chemical test refusal. Conversely, there is a dearth of statutory or case law for any equitable notice prior to the imposition of the habitual offender designation and its corresponding, significantly longer suspension. The legislative intent in a license suspension has been both a criminal punishment and a civil consequence. When Section 1542 was originally enacted, it was designed to be a civil consequence. However, since license suspensions have a punitive aspect within the sentencing matrix, any imposition includes components of restraint, retribution, and deterrence for this already criminal act. What had been the distinguishing Abraham factor, scienter, has now taken this suspension from civil to criminal. Prior to Duffey, awareness of the statutory civil suspension was not at issue; however, the last twenty years of legislative and court actions now mandates cognizance prior to the imposition of a civil license sanction. 7 The notice procedures now involved with other license suspensions since Duffey, combined with the lack of any notice requirement in a habitual offender situation, leads to the logical conclusion that the disparate treatment makes the mandatory notice suspensions clearly civil, while suspensions without warning are punitive and thus criminal. Through lack of pace with other civil license suspensions, Section 1542 has moved under the rubric of Padilla v. Kentucky, 599 U.S. 356 (2010). As such, before such punitive consequences can be enforced, as they are a direct consequence of a plea where the suspension is mandatory, it must be explained to a pleading defendant in order to constitute a knowing and informed decision. Under this analysis, the rescission of the five year license suspension is proper. In the alternative, our Supreme Court's direction in Duffey that prior notice be provided in summary license suspensions, together with the legislatively mandated notice prior to civil license suspension in situations such as chemical test refusal, indicates that notice of a suspension is now a predicate to any civil license suspension. There being no prior notice in this case compels that the designation of habitual offender be prohibited from enforcement. CONCLUSION The habitual offender designation requires an informed decision following full and adequate legal representation prior to a third offense DUI plea within five years, or that prior to the imposition of a habitual offender designation the Commonwealth must show prior notice of the civil consequences. For the foregoing reasons, the Licensee's appeal was properly granted and the rescission of the suspension should be affirmed in all respects. 8 BY THE COURT, Distribution: Thomas A. Placey C.P.J. Lynanne M. Spagnoletti Philip M. Bricknell, Esq. o a.�ed 41g113 �►- , 7D .� OD d D' CD CD -�. c 9 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LYNANNE M. SPAGNOLETTI Vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 2012-3483 CIVIL 145 CD 2013 The documents comprising the record have been numbered from No. 1 to 60, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to, each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/10/2013. ktiz )-,,) ,A 4d G Da . Buely Pr9thonotary Alma Kostjer vac, Deputy An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledainiz receipt of this record. Date Signature & Title Commonwealth of Pennsylvania ,. County of Cumberland ss. I David D.Buell Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full,true and correct copy of the whole record of the case therein stated, wherein LYNANNE M.SPAGNOLETTI Plaintiff, and COMMONWEALTH OF PENNSYLVANIA,DEPARTMENT OF TRANSPORTATION,BUREAU OF DRIVER LICENSING Defendant, as the same remains of record before the said Court at No. 2012-3483 of CIVIL Term./45 ZOO In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this LOTH day of APRIL, A D., 2013 �—y Prothonotary 1, Kevin A.Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D.Buell by whom the annexed record, certificate and attestation were made and given,and who,in his own proper handwriting,thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing,and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere,and that he said record, certificate and attestation are in due form of law and mad rope. officer. President Judge Commonwealth of Pennsylvania County of Cumberland ss: 1, David D.Buell Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A.Hess by whom the foregoing attestation was made,and who has thereunto subscribed his name,was,at the time of making thereof,and still is President J udge of the Court of Common Pleas,Orphan'Court and Court of Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified;to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. i IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 10T day of APRIL A.D. 2013 Prothon otary No. Term 19 No. 2012-3483 CIVIL 145 CD 2013 LYNANNE M. SPAGNOLETTI Versus COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING EXEMPLIFIED RECORD Cumberland From County Debt, 5 Int. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county Cumberland in the Commonwealth of Pennsylvania 2012-3483 CIVIL to No, 145 CD 2013 Term, 19 -is contained the following: COPY OF Appearance DOCKET ENTRY LYNANNE M. SPAGNOLETTI vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING **SEE CERTIFIED COPY OF DOCKET ENTERIES** �:um.oer.=q you=y ?ro,:--.=7:ary's Page Civil Case Prin: 2012-03483 SPAGNOL,-,-fI LYNANNE M (,is) COMMONWEALTH. OF PENNSYLVANIA Reference No. . : Filed. . . . . . . . : 6/01/2012 Case Type. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . . : 12:18 Judgment. . . . . . : . 00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------- Case Comments ------------- Higher Crt 1. : 145 CD 2013 Higher Crt 2 . : General Index Attorney Info SPAGNOLETTI LYNANNE M PLAINTIFF PRO SE 45999 ROLLING ROAD LEXINGTON PARK MD 20653 PENNSYLVANIA COMMONWEALTH OF DEFENDANT DEPARTMENT OF TRANSPORTATION THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 1)6/01/2012 APPELLANTR/PRO APPEAL FO P M S U S S E SION OF DRIVERS LICENSE/AUTO REGISTRATION - BY E N ------------------------------------------------------------------- 6/06/2012 ORDER OF COURT - 6/5/12 - IN RE: APPEAL OF DRIVER'S LICENSE/AUTO REGISTRATION SUSPENSION - HEARING SCHEDULED FOR 10/24/12 @ 9:30 AM IN CR 5 CLIMB CO COURTHOUSE - BY THE COURT CHRISTYLEE L PECK J COPIES MAILED 6/6/12 ----- - -------- - -- --- ------ --------- --- ----------- -------- 10/31/2012 ORDER---10/24/12---IN-RE: -APPEAL-CONTINUED-AND-RESHCEDULED-FOR CHR 12/IS12 12 @ 9:30 AM J IN- COPIES MAILED CR 6 CUMB CO COURTHOUS10/31/12 E - BY THE COURT ORDER//- L PECK ----- -- ----- ----- -------- -- -- ----------- -- ------- - -- 6-12/18/2012 ORDER OF --- THE COURT THOMAS A PLACEY J- COPIES MAILED 12-18-12 ------------------------------------------------------------------- IL 1/02/2013 ORDER OF COURT DATED 12-28-12 IN RE CONTINUANCE OF APPEAL OF DRIVERS LICENSE SUSPENSION - HEARING SCHEDULED FOR JANUARY 10 2013 AT 2 30 PM IN CR 6 - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 1-2-13 ----- -- ----- ----- ------- -- -- ------ -- -------- ------- t7 1/11/2013 ORDER-OF-COURT-DATED-1-10-13-IN-RE-APPEAL-OF-DRIVERIS-LICENSE------ SUSPENSION APPEAL IS **SUSTAINED** - SUSPENSION SHALL BE RESCINDED BY THE COURT THOMAS A PLACEY J - COPIES MAILED 1-11-13 ------ -- ------ - -- ------------ ----- - ------- --- ----- - -- 2/06/2013 NOTICE OF PHILIP M BRICKNELL ATTY FOR PLFF ------------ ----- -- -- ------ -- ------ --------- - --- -- ---- -A42/11/2013 COMMONWEALTH-COURT-OF-PA-NOTICE-OF-APPEAL-DOCKETING-#-145-CD-2013-- ----- -- ----- ---- -- - -- --- ------ -- ------ - --------- a,5'2/12/2013 ORDER OF ---2/12-13---IN-RE: -NOTICE-OF-APPEAL---APPELLANT-_ - DIRECTED TO FILE OF fiCORD IN THIS COURT AND TO SERVE UPON UNDERSIGNED JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINED OF AN APPEAL NO LATER THAN 21 DAYS AFTER ENTERY OF THIS ORDER OF COURT - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 2/12/13 2 ----------------------------------------------------------------- g 2/22/2013 STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL - BY PHILIP M BRICKNELL ATTY FOR DEPT OF TRANSPORTATION ---------- -- ----------- - ------- ------ ------ - ------ - -1-04/01/2013 TRANSCRIPT-OF-PROCEEDINGS---1/10/13-BEFORE-THOMAS-A-PLACEY-J-- - ------------------------------------------------------------------- —CZ'044/08/2013 IN RE: OPINION PURSUANT TO PA RAP 1925 - 4/8/13 - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 4/8/13 ------------------------------------------------------------------- 4/10/2013 NOTICE OF DOCKET ENTRIES MAILED TO PHILIP M BRICKNELL ESQ AND LYNANNE M SPAGNOLETTI DEFT 60 - - - i.� -- - - - - - - - LAST ENTRY - - - - - - - - - - - - - - - - u use_- _d.r c wt._ _v Y.:U' 'c` -d.-y ' S v.- c u �'C.UC G _ Civil Case Pri:.].: 2012-03483 SPAGNOLL.-iI LYNANNE M (vs) CCMr4C-NWEALT,. OF PENNSYLVANIA Reference No. . : Filed. . . . . . . . : 6/01/2012 Case Type. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . 12:18 Judgment . . . . . . : . 00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1. : 145 CD 2013 * Escrow Information Higher Crt 2 . : * Fees & Debits Beg Bal Pmts/Ad� End Bal ******************************** ******** ****** ******************************* APPEAL LIC SUSP 65 . 25 65 .25 . 00 TAX ON APPEAL . 50 .50 . 00 SETTLEMENT 9 . 50 9 . 50 . 00 AUTOMATION FEE 5 . 00 5 . 00 . 00 JCP FEE 23 .50 23 .50 . 00 APPEAL HIGH CT 57 .00 57 . 00 . 00 ------------------------ ------------ 160 . 75 160. 75 . 00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof,I here unto set my hand and the seat of said Court at Carlisle,Pa. This f Q!! day of��.20 /S Prothonotary Y04 P CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LYNANNE M. SPAGNOLETTI Vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 2012-3483 CIVIL 145 CD 2013 The documents comprising the record have been numbered from No. 1 to 60, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 4/10/2013. /Y/'� 4 114Z:It 6va?C Davi . Buell, roth otary 4�j Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD HLED IN SUPERIOR COURT Date COURT SigMRra4'018 RECORD F11.E0 IN SUPERIOR APR I HARRISBURG Was, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION P 1 L E 0 0 F'F I OFFICE OF CHIEF COUNSEL OF T ji rl t4 0 THE P BY: PHILIP M. BRICKNELL, ESQUIRE RO ASSISTANT COUNSEL 2013 MAY 1.0 PM ,2" 2 4 ATTORNEY I.D. NO. 88330 CUMBERLAND COUNTY 1101 SOUTH FRONT STREET, 3RD FLOOR PENNSYLVANIA HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON DEPARTMENT OF TRANSPORTATION PLEAS OF BUREAU OF DRIVER LICENSING CUMBERLAND COUNTY V. No: 2012-03483 LYNANNE SPANGNOLETTI DRIVER LICENSE SUSPENSION APPEAL REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the court reporter is hereby requested to certify and file the original transcript in this matter heard on December 12, 2012, in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Please include the original transcript in the original, certified record that is sent to the Commonwealth Court. The Department of Transportation, appellant, does not desire or require a separate copy of the transcript. Philip M. Bricknell, Esquire COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL BY: PHILIP M. BRICKNELL, ESQUIRE ASSISTANT COUNSEL ATTORNEY I.D. NO. 88330 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON DEPARTMENT OF TRANSPORTATION PLEAS OF BUREAU OF DRIVER LICENSING CUMBERLAND COUNTY V. LYNANNE SPANGNOLETTI No: 2012-03483 DRIVER LICENSE SUSPENSION APPEAL PROOF OF SERVICE The Commonwealth of Pennsylvania, Department of Transportation, through its counsel, Philip M. Bricknell, Esquire, does hereby certify that a copy of the REQUEST FOR TRANSCRIPT was served on May 6, 2013, by first class mail, on the following: The Honorable Thomas A. Placey, C.P.J. Lynanne M. Spagnoletti, Pro se Cumberland County Courthouse 45999 Rolling Rd. One Courthouse Square Lexington Park, MD 20653 Carlisle, Pa 17013 Mandy Cortez, Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, Pa 17013 Philip M. Bricknell, Esquire IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti V. , Commonwealth of Pennsylvania, c Department of Transportation, Bureau of Driver Licensing, Appellant No. 145 C.D. 2013 c�a 1 Ica ORDER '" — ' NOW, May 9, 2013, upon consideration of appellant's application for extension of time to file brief and reproduced record, it appearing that the certified record lacks a transcript and that appellant has taken steps to correct the omission, the briefing schedule is vacated. Upon receipt of the supplement to the certified record, the Chief Clerk shall establish a new briefing schedule. If the missing transcript is not certified by June 10, 2013, appellant shall report to the Court the status of its efforts to assure transmission of the transcript. Keith B. Quigley, Senior Judge Certified from the Record MAY 10 2013 And Order Exit SUPPLEMENTAL CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LYNANNE M. SPAGNOLETTI Vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 2012-3483 CIVIL TERM 145 CD 2013 The documents comprising the record have been numbered from No. 61 to 79, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 5/17/2013. D uell, rotho otary Alma Kostjerevac, De ty An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania. County of Cumberland ss: ------- -- -- - -----— --1-, —DavidD—.Buel-1 — , Prethonotarv— - ----of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full,true and correct copy of the whole record of the case therein stated, wherein LYNANNE M. SPAGNOLETTI Plaintiff, and COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Defendant, as the same remains of record before the said Court at No. 2012-3483 of Civil Term.141r>CD 2013 In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 17TH day of M Y A. D., 2013 7 i ProthonotarY I, Kevin A.Hess President Judge of the Ninth ,Judicial District, composed of the County of Cumberland, do certify that David D.Buell , by whom the annexed record, certificate and attestation were made and given,and who, in his own proper handwriting,thereunto subscribed his name and affixed the seal of the Court.of Common Pleas of said County,was,at the time of so doing,and now is Prothonotary in and. for said County of Cumberland .in the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere,and that the said record, certificate and attestation are in due form of law and made by the pro officer. a President.Judge Commonwealth of Pennsylvania County of Cumberland ss: 1, David D.Buell , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A.Hess by whom the foregoing attestation was made,and who has thereunto subscribed his name,was,at the time of making thereof,and still is President Judge of the Court of Common Pleas,Orphan'Court and Court of Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified-,to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 17TH d Y A.D. 2013 Prothonotary No. Term 14 -------— -------- -- ----?QI2-3483 CN�L TERIyf----- ------- -------------- o' 145 CD 2013 LYNANNE M. SPAGNOLETTI Versus COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING EXEMPLIFIED RECORD From Cumberland County Debt, $ Int. from Costs Entered and Filed Prothonotarv. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county (` in the Commonwealth of Pennsylvania 2012-3483 CIVIL TERM to No. 145 CD 2013 Term; 19 is contained the following: COPY OF Appearance DOCKET ENTRY LYNANNE M. SPAGNOLETTI vs. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING f 1 **SEE CERTIFIED COPY OF DOCKET ENTERIES** L .1 v.�ii \.ULL41J\...11UL1L,.t VVIAllVy LLVl.11V 11V 1.U12' J V111L.1... lU�w. 1 Civil Case Print 2012-03483 SPAGNOLETTI LYNANNE M (vs) COMMONWEALTH OF PENNSYLVANIA Reference No. . : Filed. . . . . . . . : 6/01/2012 Case Ty e. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . 12:18 Judgmen�. . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1. : 145 CD 2013 Higher Crt 2 . : ******************************************************************************** General Index Attorney Info SPAGNOLETTI--LYNANNE--M -----..-..._.. - -- PLAINT-IFF--- - - - PRO-SE- - 45999 ROLLING ROAD LEXINGTON PARK MD 20653 PENNSYLVANIA COMMONWWEALTH OF DEFENDANT DEPARTMENT OF TRANSPORTATION THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 ******************************************************************************** * Date Entries ******************************************************************************** 2- 136/01/2012 APPEAL FROM SUSPENSION OF DRIVERSELICENSE/AUTO REGISTRATION - BY APPELLANT/PRO SE ------------------------------------------------------------------- 1 6/06/2012 ORDER OF COURT - 6/5/12 - IN RE: APPEAL OF DRIVER'S LICENSE/AUTO REGISTRATION SUSPENSION - HEARING SCHEDULED FOR 10/24/12 @ 9:30 AM IN CR 5 CUMB CO COURTHOUSE - BY THE COURT CHRISTYLEE L PECK J COPIES MAILED 6/6/12 ------------------------------------------------------------------- 'Lf 10/31/2012 ORDER - 10 - IN RE: APPEAL CONTINUED AND RESHCEDULED FOR 12/12/12 @ 9 :30 AM IN CR 6 CUMB CO COURTHOUSE - BY THE COURT CHRISTYLEE L PECK J - COPIES MAILED 10/31/12 ------------------------------------------------------------------- 1j 12/18/2012 ORDER OF COURT DATED 12-12-12 IN RE CONTINUANCE OF HEARING - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 12-18-12 ------------------------------------------------------------------- I�j 1/02/2013 ORDER OF COURT DATED 12-28-12 IN RE CONTINUANCE OF APPEAL OF DRIVERS LICENSE SUSPENSION - HEARING SCHEDULED FOR JANUARY 10 2013 AT 2 30 PM IN CR 6 - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 1-2-13 ------------------------------------------------------------------- (7 1/11/2013 ORDER OF COURT DATED 1-10-13 IN RE APPEAL OF DRIVER'S LICENSE SUSPENSION - APPEAL IS **SUSTAINED** - SUSPENSION SHALL BE RESCINDED - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 1-11-13 ------------------------------------------------------------------- I$-�+ 2/06/2013 PHILIP OF BRICKNELL TO CCOMMONWEALTH COURT - REQUEST FOR TRIAL - BY -------------------------------------------------- ----- 2/11/2013 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 145 CD 2013 ------------------------------------------------------------------- �� 2/12/2013 ORDER OF COURT - 2/12/13 - IN RE: NOTICE OF APPEAL - APPELLANT DIRECTED TO FILE OF RECORD IN THIS COURT AND TO SERVE UPON UNDERSIGNED JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINED OF AN APPEAL NO LATER THAN 21 DAYS AFTER ENTERY OF THIS ORDER OF COURT - BY THE COURT THOMAS A PLACEY J - COPIES MAILED 2/12/13 ------------------------------------------------------------------- �( _2g 2/22/2013 BRICKNELL COMPLAINTED OF ON PEAL - BY PHILIP M TRANSPORTATION ------------------------------------------------------------------- `,Z�'-S� 4/01/2013 TRANSCRIPT OF PROCEEDINGS - 1/10/13 BEFORE THOMAS A PLACEY J ------------------------------------------ ��-S R 4/08/2013 THOMAS OPINION PURSU COPIES MAILED 4 /8/13 4/8/13 - BY THE COURT ------------------------------------------------------------------- 4/10/2013 NOTICE OF DOCKET ENTRIES MAILED TO PHILIP M BRICKNELL ESQ AND YNA M - ----LET-- DEFT - ,-b�FF. ----------------------------------------------------------- 6 � _ 6 25/10/2013 REQUEST FOR TRANSCRIPT - BY PHILIP M BRICKNELL ATTY FOR PLFF ------------------------------------------------------------------- i yv.�.�.i VUIIINVYl VV Ull I.Y lYVl.11V 11V l..UYY w7. VLL YI..G 10.yV L Civil Case Print 2012-03483 SPAGNOLETTI LYNANNE M (vs) COMMONWEALTH OF PENNSYLVANIA Reference No. . . Filed. . . . . . . . . 6/01/2012 Case Ty e. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . . : 12:18 Judgmen?. . . . . . 00 Execution Date 0/00/0000 Judge Assigned: PLACEY THOMAS A Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------ Case Comments ------------ Higgher Crt 1. : 145 CD 2013 6�# 5/13/2013 COMMONWEALTH COURT OF PENNSYLVANIA ORDER RE Crt TRANSCRIPT - BY THE COURT KEITH B QUIGLEY SENIOR JUDGE �j ------------------------------------------------------------------- 63- F_ 5/14/2013 TRANSCRIPT OF PROCEEDINGS/LICENSE SUSPENSION APPEAL - 12/12/12 - ---- - ------------------------------------------------------------------- 5/17/2013 NOTICE OF DOCKET ENTRIES MAILED TO PHILIP M BRICKNELL ESQ AND - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bn*Bal***Py*mts/Ad� End Bal ******************************* *** * ****** ******************************* APPEAL LIC SUSP 65 . 25 65 .25 . 00 TAX ON APPEAL . 50 . 50 . 00 SETTLEMENT 9 . 50 9. 50 . 00 AUTOMATION FEE 5 . 00 5 . 00 . 00 JCP FEE 23 . 50 23 .50 . 00 APPEAL HIGH CT 57 . 00 57 . 00 . 00 ------------------------ ------------ 160 . 75 160 .75 . 00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof,I here unto set my hand and the se I of said Court at Carlisle,Pa. This day 20 t- -Prothonotary fjer"c SUPPLEMENTAL CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LYNANNE M. SPAGNOLETTI c:) Vs. -n-C;-=+ - C-N COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING -0 2012-3483 CIVIL TERM fZ3 145 CD 2013 Uj The documents comprising the record have been numbered from No. 61 to 79, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate.Cou is 511712013. rN b u4r-,`P—rothcyko–tary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy thereby acknowledging receipt of this record. R9WW in superior Court JUN 3 2013 Date Signature & Title MIDDLE IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti V. No. 145 C.D. 2013 Submitted: October 4, 2013 Commonwealth of Pennsylvania, rnj Department of Transportation, -o — Bureau of Driver Licensing, , Appellant u BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge ., t HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge C1T OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: October 31, 2013 In this appeal, the Department of Transportation, Bureau of Driver Licensing (PennDOT) asks whether the Court of Common Pleas of Cumberland County (trial court) erred in sustaining the appeal of Lynanne M. Spagnoletti (:Licensee) from the five-year revocation of her operating privilege under Section 1542 of the Vehicle Code, 75 Pa. C.S. §1542 (relating to revocation of habitual offender's license). PennDOT contends the trial court abused its discretion in sustaining Licensee's appeal where Licensee had three convictions for driving under the influence (DUI) in less than five years rendering her a "habitual offender" as defined in Section 1542 of the Vehicle Code. Upon review, we are constrained to reverse. In May 2012,. PennDOT notified Licensee of the revocation of her operating privilege for a period of five years based on her designation as a habitual offender as a result of her third DUI conviction. Licensee filed an appeal with the trial court. Hearings ensued. At hearing, PennDOT produced a packet of certified documents, which included the reports of Licensee's three DUI convictions, Licensee's certified driving history, and PennDOT's notice of revocation upon Licensee's third conviction. PennDOT then rested. Licensee, representing herself, testified on her own behalf. After Licensee's testimony, the trial court continued the hearing so that it could receive testimony from counsel in the underlying criminal DUI cases, "to determine the specific agreement, if any, that gave rise to [PennDOT's] designating [Licensee] a habitual offender ...." Reproduced Record (R.R.) at 38a. At a second hearing, the attorney whose office represented Licensee in connection with two of her three DUIs testified. At the conclusion of the hearing, the trial entered an order from the bench, which stated: "the Court finds that the District Attorney's office plea offers did not address the habitual offender[] designation and are not binding on [PennDOT]. Following a review of all of the testimony, the appeal is sustained, and the suspension that is the subject of this appeal shall be rescinded." R.R. at 60a. PennDOT appealed, and the trial court ordered it to file a concise statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1.925(b), which it did. The trial court then issued an opinion in support of its decision pursuant to Pa. R.A.P. 1925(a). 2 In its Pa. R.A.P. 1925(a) opinion, the trial court made the following findings. Licensee's certified driving record "shows that on 30 September 2011, the first DUI General Impairment conviction was entered in Cumberland County, arising out of a 3 July 2011 violation[.]" Tr. Ct., Slip Op., 4/8/13, Finding of Fact (F.F.) No. 12. "This was followed by a second DUI Controlled Substances conviction in York County, with a one-year suspension effective 14 February 2012, for a violation on 8 May 2011 [.]" F.F. No. 13. Finally, the record "shows a third DUI General Impairment conviction on 10 April 2012 in Cumberland County, arising out of a violation on 28 June 2011,. [.]" F.F. No. 14. Licensee acknowledged that she did in fact receive three DUIs in six weeks. "These arrests occurred following Licensee being `held hostage and raped in York County,' wherein after she was `put on seven different medications as a coping mechanism."' F.F. No. 5 (citing Tr. Ct. Hearing, Notes of Testimony (N.T.), 12/12/1.2, at 7). Jason Eric Zacek pled guilty to terroristic threats with the intent to terrorize another, simple assault, providing false identification to law enforcement officers and two counts of unlawful restraint—serious bodily injury, in connection with an April 2011 assault on Licensee.' ' The sworn facts from the affidavit of probable cause regarding that matter are as follows: On 04/6/2011 at 1607 hrs. I was dispatched to the Motel 6 room #320 in reference to a welfare check on [Licensee]; York City Police (OFF. Knarr) wanted our department to check her status because she gave a PNC bank teller a note in York City stating she needed help and wanted the police to report a domestic disturbance with a gentleman she met on line. I (Footnote continued on next page...) 3 Licensee's defense counsel in the two DUI matters that occurred in Cumberland County "appeared and described the medical situation as it was presented to the District Attorney's Office." N.T., 1/10/13, at 9-11. "The Public Defender's Office represented Licensee in both cases, which resulted in two (2) (continued...) responded on scene and knocked loudly at room #320 numerous times. I announced myself as OFF. Greco NYCRPD. The room/door was locked and no one answered. I had the management staff obtain a key and entry was made. No one was inside and I found no problems. While closing the door I was approached by a white female, a young white female child, and a white male. The male saw police and suspiciously walked away and tried to flee the scene. The male was detained and brought back to room #320. The female was identified as the woman that gave the note to the bank teller. The woman [Licensee] stated she was assaulted and threatened by the male we had detained. I observed the female had visible black and blue marks/abrasions to both her upper arm areas. The female gave a positive identification on scene of the accused. I [M]irandized the accused and double locked the handcuffs. While in custody the male had no form of identification. The male gave the name of Jason Eric Za[c]ek D.O.B 05-05-1975. No record was found in Pa or any other surrounding states. In speaking with the victim she advised a physical altercation occurred at the Super 8/Arsenal Rd., on 04-03-2011 at approx., 2300 hrs. While the physical domestic occurred the accused stated he would kill her and cut off her head somewhere in the mountains. The accused also stated he would bury her in the mountains so that no one could find the body. The victim stated the accused pushed, hit, and shoved her which caused the black and blue marks/abrasions to her both upper arm areas. I ran a Criminal History check on the accused with the name and D.O.B. he provided but no record was found in Pa or surrounding states. I believe the accused is giving false information to the police during an investigation of Terroristic "Threats, Simple Assault, and Harassment. The accused was booked as John Doe due to the situation at hand. The accused also took the victims cell phone battery out of her phone so that she could not make any calls to 911 for police assistance. Based on the visible injuries on scene and her statements I charged the accused with the appropriate crimes. The victim was photographed by Cpl. Migitulski on scene. I supplied information to the victim on how to obtain a P.F.A. Tr. Ct., Slip Op., 4/8/13, Finding of Fact No. 2 (quoting Docket CP-67-CR-05413-2011, Affidavit of Probable Cause (York Cnty.)). 4 Section 3802(a)(1) General Impairment pleas[.]" F.F. No. 3. In light of the mitigating circumstances, Licensee was allowed to plead to "General Impairment," offenses that would allow her to avoid a license suspension. F.F. No. 8. "Defense counsel acknowledged the focus of her representation was on mitigating any jail time and license suspension that would arise out of these convictions[.]" F.F. No. 10. "Defense counsel candidly admits that the discussion of the collateral consequences of the criminal conviction, specifically the habitual offender designation, was not discussed with her client nor the District Attorney." F.F. No. 11. At the outset of its discussion, the trial court stated that under Section 1542 of the Vehicle Code, the Commonwealth is required to revoke the operating privilege of any person whose driving record meets the criteria defining a habitual offender. Revocation is mandatory, not discretionary. Johnson v. Commonwealth, 449 A.2d 121 (Pa. Cmwlth. 1982). Further, our Supreme Court unequivocally holds that based on the language of Section 1542, PennDOT lacks discretion over whether to revoke an individual's operating license. Given three convictions in the prescribed time period, revocation is required. Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990). Nevertheless, the trial court observed that citations for underage drinking contain a specific warning regarding the consequence of a license suspension based on our Supreme Court's decision in Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994). Similarly, in the context of a refusal to submit 5 to chemical testing, specific warnings are required. See Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. §1547(b)(2). The trial court then explained: In the wake of certain United States Supreme Court rulings, our Supreme Court has recently readdressed the distinction between punitive and collateral consequences of a criminal conviction, and determined that the trial court must ascertain whether the consequence is `so punitive either in purpose of effect as to negate the intention to deem it civil.' [Commonwealth v. Abraham, Pa. , 62 A.3d 343, 350 (2012)]. The Supreme Court went on to outline this distinction and specifically cited [Duffey], which dealt with a ninety (90) day license suspension arising out of an offense under the Crimes Code. The applicable case law that addresses license suspension consequences as civil in nature has been with us since the 1990's, but is still relied upon in meting out suspensions. ... Being decades old, the well settled case law needs to be revisited in light of changes in the law in those intervening years. ... [T]here is a dearth of statutory or case law for any equitable notice prior to the imposition of the habitual offender designation and its corresponding, significantly longer suspension. The legislative intent in a license suspension has been both a criminal punishment and a civil consequence. When Section 1542 [of the Vehicle Code] was originally enacted, it was designed to be a civil consequence. However, since license suspensions have a punitive aspect within the sentencing matrix, any imposition includes components of restraint, retribution, and deterrence for this already criminal act. What had been the distinguishing [Abraham] factor, scienter, has now taken this suspension from civil to criminal. Prior to [Duffey], awareness of the statutory civil suspension was not at issue; however, the last twenty years of legislative and court actions now mandates cognizance prior to the imposition of a civil license sanction. 6 The notice procedures now involved with other license suspensions since [Duffey] combined with the lack of any notice requirement in a habitual offender situation, leads to the logical conclusion that the disparate treatment makes the mandatory notice suspensions clearly civil, while suspensions without warning are punitive and thus criminal. Through lack of pace with other civil license suspensions, Section 1542 has moved under the rubric of Padilla v. Kentucky, 559 U.S. 356 (2010). As such, before such punitive consequences can be enforced, as they are a direct consequence of a plea where the suspension is mandatory, it must be explained to a pleading defendant in order to constitute a knowing and informed decision. Under this analysis, the rescission of the five year license suspension is proper. In the alternative, our Supreme Court's direction in [Duffey] that prior notice be provided in summary license suspensions, together with the legislatively mandated notice prior to civil license suspension in situations such as chemical test refusal, indicates that notice of a suspension is now a predicate to any civil license suspension. There being no prior notice in this case compels that the designation of habitual offender be prohibited from enforcement. ... Tr. Ct., Slip Op. at 7-8. Thus, the trial court determined the habitual offender designation requires an informed decision following full and adequate legal representation prior to a third offense DtJI plea within five years. Alternatively, prior to the imposition of a habitual offender designation, the Commonwealth must show prior notice of the civil consequences. As such, the trial court opined, it properly sustained Licensee's appeal, and this Court should aff nn rescission of the suspension. This matter is now before us for disposition? 2 This Court previously precluded Licensee from filing a brief based on her failure to do so in accordance with the briefing schedule issued by this Court. 7 On appeal,' PennDOT argues it correctly revoked Licensee's operating privilege. Specifically, PennDOT asserts Licensee was convicted of three DUls within five years making her a "habitual offender" as defined in the Vehicle Code. While PennDOT is sympathetic toward Licensee as a victim of crime, the Vehicle Code nonetheless requires it to revoke her license for five years because she fits the definition of a habitual offender. PennDOT maintains the trial court agreed, stating: "Technically speaking, the Commonwealth's habitual offender designation is accurate and the [revocation] should have been upheld." R.R. at 98a. Regardless of circurnstance, PennDOT contends, neither it nor the trial court has discretion to determine if a habitual offender's license should be revoked. PennDOT argues the trial court abused its discretion when it overrode the law and sustained Licensee's appeal. PennDOT asserts the trial court's reasoning for sustaining Licensee's appeal is inconsistent with the Vehicle Code and relevant, precedential case law. The habitual offender revocation is a collateral civil consequence of criminal convictions because it is a civil requirement over which a sentencing judge has no control. Thus, there is no requirement for a warning of the consequence of pleading guilty to a third DUI violation within five years. See Duffey; Abraham. PennDOT also maintains the trial court's examples of situations where warnings of possible license suspensions are given do not support the trial 3 Our review is limited to determining whether the trial court's findings were supported by competent evidence, whether errors of law were committed, or whether the trial court's determinations demonstrated a manifest abuse of discretion. Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). 8 court's position that warnings are required for all license suspensions, including the five-year revocation based on a habitual offender designation. To that end, this Court directly holds that a failure to warn a licensee that pleading guilty or entering a pre-adjudication program will result in a habitual offender designation does not allow for rescission of the five-year license revocation. See Brewster v. Dep't of Transp., 503 A.2d 497 (Pa. Cmwlth. 1986) (en banc); see also Brophy v. Dep't of Transp., 503 A.2d 1010 (Pa. Cmwlth. 1986). PennDOT further contends the details of what occurred in the litigation of Licensee's DUI convictions is simply not relevant to her designation as a habitual offender because the facts establish she had three DUI convictions in less than five years. Further, PennDOT argues, contrary to the trial court's reasoning, neither Duffey nor the refusal warnings required by Section 1547 of the Vehicle Code support the trial court's conclusion that Licensee must have been warned of the collateral consequences of her guilty plea. PennDOT asserts that, short of the legislative remedy of inserting a warning requirement into Section 1542 of the Vehicle Code, Licensee's only potential remedy was to seek relief from one of her DUI convictions in criminal court. See Duffey. Section 1.542 of the Vehicle Code states, in relevant part (with emphasis added): (a) General rule.--The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A "habitual offender" shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed 9 after the effective date of this title and within any period of five years thereafter. (b) Offenses enumerated.--Three convictions arising_ from separate acts of any one or more of the following offenses committed by any person shall result in such person being designated as a habitual offender: (1.1) Any violation of Chapter 38 (relating_to driving after imbibing alcohol or utilizing drugs) except for sections 3801(a)(1) and (b) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and 3809 (relating to restriction on alcoholic beverages). (d) Period of revocation.--The operating privilege of any person found to be a habitual offender under the provisions of this section shall be revoked by the department for a period of five years. ... 75 Pa. C.S. §1542(a), (b) (1.1), (d). "In a license suspension case, the only issues are whether the licensee was in fact convicted, and whether [Penn]DOT has acted in accordance with applicable law." Dep't of Transp., Bureau of Driver Licensing v. Tarnopolski, 533 Pa. 549, 552, 626 A.2d 138, 140 (1993). PennDOT bears the initial burden to establish a prima facie case that a record of conviction supports a suspension. Taddei v. Dep't of Transp., Bureau of Driver Licensing, 982 A.2d 1249 (Pa. Cmwlth. 2009). An essential part of satisfying this burden is the production of an official record of the conviction supporting the suspension. Glidden v. Dep't of Transp., Bureau of Driver Licensing, 962 A.2d 9 (Pa. Cmwlth. 2008). PennDOT must also establish it acted in accordance with applicable law. Id. 10 Here, PennDOT entered a certified packet of eight documents into the record without objection. R.R. at 30a. These documents constitute official records of Licensee's convictions. Relevant here, PennDOT's certified packet of documents includes Licensee's driving history documenting her three convictions for DUI, as well as the reports of each conviction, within a period of less than one year, justifying her designation as a habitual offender. See R.R. at 67a, 74a, 76a, 78a-80a. These certified documents satisfied PennDOT's initial burden to establish the convictions underlying Licensee's designation as a habitual offender. Fett_y v. Dep't of Transp., Bureau of Driver Licensing, 784 A.2d 236 (Pa. Cmwlth. 2001); Martino v. Commonwealth, 541 A.2d 425 (Pa. Cmwlth. 1988). To overcome the rebuttable presumption that she was convicted of these offenses, Licensee bore the burden of proving by clear and convincing evidence that the record was erroneous. Mateskovich v. Dep't of Transp., Bureau of Driver Licensing, 755 A.2d 100 (Pa. Cmwlth. 2000). Clear and convincing evidence is "evidence that is so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue." Id. at 102 n.6 (citation omitted). Here, Licensee did not present any rebuttal evidence regarding her DUI convictions. Rather, Licensee admitted she received three DUIs in the six- week period after she was the victim of a violent crime. R.R. at 31a. Licensee explained that she was prescribed medication and underwent trauma therapy as a result of her victimization. Id. Licensee asserted she was "just asking that ... the five year [revocation] be lifted because of extreme extenuating circumstances." Id. 11 The trial court also heard testimony from Licensee's former criminal defense counsel, whose office represented Licensee in two of her three underlying criminal DUI cases. Licensee's former counsel testified that, with regard to the DUI case in which she personally represented Licensee, based on mitigating circumstances, the district attorney allowed Licensee to plead guilty to a first offense, general impairment DUI. See Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. However, Licensee's former counsel agreed she did not consider or discuss the potential for the habitual offender designation with Licensee based on Licensee's three DUI convictions. R.R. at 53a-54a. Ultimately, the trial court sustained Licensee's appeal, and rescinded the five-year license revocation. R.R. at 60a. For the reasons set forth below, the trial court erred in sustaining Licensee's appeal. It is well-settled that, "[t]he mandatory suspension of a driver's license upon conviction for DUI is a collateral civil penalty administratively imposed by [PennDOT] pursuant to the mandates of the Motor Vehicle Code not the Crimes Code. Thus, the mandatory suspension is not a direct criminal penalty, but rather, is a civil sanction ...." Commonwealth v. Wolf, 534 Pa. 283, 290, 632 A.2d 864, 867 (1993) (emphasis in original); see also Duffey. More particularly, in the context of a license revocation under Section 1542 of the Vehicle Code, an en banc panel of this Court previously stated: [A] license revocation is a civil proceeding. The suspension of operating privileges is, therefore, a collateral consequence of any criminal proceedings. It is a consequence, civil in nature, whose imposition has been vested in an administrative agency over which the criminal judge had no control and for which he 12 had no responsibility. Courts have thus consistently held that a trial court's failure to inform a defendant of this potential collateral consequence does not invalidate his guilty plea. Brewster v. Dep't of Transp., 503 A.2d at 498 (citation and quotation omitted); accord Brophy.' Further, contrary to the trial court's statements at the hearings here, the details of Licensee's plea agreement in the underlying criminal proceedings are not relevant. To that end, as we explained in Stair v. Department of Transportation, Bureau of Driver Licensing, 911 A.2d 1014 (Pa. Cmwlth. 2006): [R]egardless of whether a plea agreement existed in the underlying criminal proceedings, it has no effect on [PennDOT's] duty under the relevant provisions of the Vehicle Code to impose the instant license suspension and ignition interlock requirement. In other words ... neither the district attorney in plea bargaining, nor the court of common pleas when deciding a criminal matter, has jurisdiction to bind [PennDOT] to withdraw a civil license suspension. The statutory suspensions following ... a conviction for [DUI] are not bargaining chips to be traded in exchange for criminal convictions; rather, they are mandatory civil penalties, imposed not for penal purposes, but to protect the public by providing an effective means of denying an intoxicated motorist the privilege of using our roads. 4 We note that in Sondergaard v Department of Transportation Bureau of Driver Licensing, 65 A.3d 994 (Pa Cmwlth. 2013), this Court held that a lifetime disqualification of an individual's commercial driver's license (CDL) under the Uniform Commercial Driver's License Act, 75 Pa. C.S. §§1601-1620, is penal in nature because, unlike the "privilege" of operating a motor vehicle, the lifetime disqualification on a CDL results in an individual's loss of the right to practice his chosen profession. Id_ at 997. "The severity of this sanction transforms what is a remedial law in the context of a one-year disqualification, into a penal one." Id. Here, unlike in Sonder ,aard, we are not confronted with a lifetime ban on an individual's chosen profession, but rather the temporary loss of the privilege of operating a motor vehicle. 13 Id. at 1018 (citations and quotations omitted). Similarly, "[a] licensee may not collaterally attack an underlying criminal conviction in a civil license suspension proceeding." Piasecki v. Dep't of Transp., Bureau of Driver Licensing, 6 A.3d 1067, 1071 (Pa. Cmwlth. 2010) (quoting Duffey, 536 Pa. at 443, 639 A.2d at 1177)). Here, it is undisputed that Licensee pled guilty to three DUI violations in less than a year. These convictions triggered PennDOT's duty to revoke Licensee's operating privileges for five years under 75 Pa. C.S. §1542. PennDOT's designation of Licensee as a habitual offender was proper, and the five-year revocation of her operating privileges is mandatory. Id. The trial court conceded as much in its opinion, stating: "Technically speaking, the Commonwealth's habitual offender designation is accurate and the suspension should have been upheld." Tr. Ct., Slip Op. at 7. Indeed, once PennDOT submitted an unrebutted certified record of Licensee's three DUI convictions in less than a year, the trial court lacked discretion to modify the mandatory five-year revocation of Licensee's operating privileges. See 75 Pa. C.S. §1542(a), (b)(1.1), (d); Bursick, 526 Pa. at 11, 584 A.2d at 293 ("[PennDOT] is required to revoke the operating privilege of aM person whose driving record meets criteria defining a habitual offender. Revocation is mandatory, not discretionary.") (emphasis in original); Dep't of Transp., Bureau of Traffic Safety v. Hill, 543 A.2d 211, 212 (Pa. Cmwlth. 1988) ("When the common pleas court finds that the licensee has committed the violation for which the penalty was imposed, it is a manifest abuse of discretion to modify the penalty because the court disagrees with the penalty.") (Citation omitted). 14 Moreover, our Supreme Court's recent decision in Abraham does not alter this result. There, the Court considered whether a public school teacher's criminal defense counsel was ineffective for failing to inform the teacher that he would forfeit his pension upon pleading guilty to specified offenses. The Court framed the issues before it as: (1) whether, in light of Padilla, the distinction in Pennsylvania between direct and collateral consequences to define scope of constitutionally "reasonable and professional assistance" required under Strickland v. Washington, 466 U.S. 668 (1984), is appropriate; and, (2) if so, whether the forfeiture of a pension that stems from a public school teacher's negotiated plea to crimes committed in the scope of his employment is a collateral civil consequence of a criminal conviction that relieves counsel from any affirmative duty to investigate and advise. In resolving the first issue, the Court held: Padilla did not abrogate the application of [a direct versus collateral consequences] analysis in cases that do not involve deportation. Frometa's['] general holding remains: a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Abraham, Pa. at , 62 A.3d at 350 (emphasis added). After determining the direct versus collateral consequences analysis remained viable in cases other than those involving deportation, the Court then explained that it previously defined the distinction between a direct and collateral ' See Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989), abrogated in >L by Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation was a collateral consequence of a guilty plea and therefore did not need to be explained to the defendant). 15 consequence of a guilty plea as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control. In detennining whether a statutory provision constitutes a criminal penalty or a civil requirement, the Court observed it previously adopted the U.S. Supreme Court's analysis in Smith v. Doe, 538 U.S. 84 (2003). After a comprehensive analysis of the factors set forth in Smith, the Court ultimately held the pension forfeiture statute was not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. Because the statute was not punitive in nature, the Court held forfeiture of-the pension was a collateral consequence of the teacher's guilty plea. Further, because counsel could not be deemed ineffective for failing to advise the teacher regarding the collateral consequences of his plea, the Court rejected the ineffective assistance of counsel claim. Of further note, in Abraham, the Supreme Court cited its 1994 decision in Duffey, observing that "Duffey held the loss of driving privileges is a collateral consequence of a conviction for underage drinking ...." Abraham, Pa. at , 62 A.3d at 350, n.8.`' The issue in Duffey was whether the license suspension triggered by an underage drinking conviction was a criminal penalty requiring a licensee to knowingly and intelligently consent to such a suspension when he made his plea bargain. In resolving this issue, the Court stated: Today, we hold that loss of driving privileges is a civil collateral consequence of a conviction for underage drinking .... Courts of this Commonwealth have consistentlrecognized 6 The Court also cited Duffev when it reiterated that the distinction between a direct and collateral consequence of a guilty plea was effectively defined as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control. Commonwealth v. Abraham,____Pa. _, 62 A.3d 343 (2012). 16 that a license suspension is a collateral civil consequence of a criminal conviction. See Commonwealth v. Englert, 457 A.2d 121 (Pa. Super. 1983) (suspension imposed following a conviction for failing to stop at the scene of an accident constituted a civil collateral consequence); [Brophy] (operating privilege suspension as a habitual offender constitutes a collateral civil consequence of acceptance of ARD on the underling offense). See also [Bursick]; [Brewster]; Zanotto v. Department of Transportation, Bureau of Driver Licensing, 475 A.2d 1375 (Pa. Cmwlth. 1984). We recognize that these cases involved offenses other than underage drinking. However, we find that these cases establish that license suspension is properly considered a collateral consequence rather than a criminal penalty. As we hold that [the licensee's] suspension is a collateral civil consequence of his conviction, there is no requirement that he know of this consequence at the time of his guiltyplea. [The licensee's] loss of driving privileges is irrelevant to the determination of whether a guilty plea was entered voluntarily and knowingly. ... As we hold that the suspension of operating privileges pursuant to 18 Pa. C.S.A. [sic] § 6310.4 is a collateral civil consequence of a criminal conviction and is not part of the criminal sentence, we must also hold that it is not proper for the [licensee] to attack the validity of the criminal conviction upon which [Penn]DOT based the suspension in this civil proceeding. We have established that a licensee may not collaterally attack an underlying criminal conviction in a civil license suspension proceeding. In [Bursick], this court held that the scope of review of an operating privilege suspension which resulted from a criminal conviction does not include the authority to attack the validity of the underlying criminal conviction. See also [Wol . Numerous Commonwealth Court decisions have adhered to this principle. See, lam, Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. Heeter, 563 A.2d 993 (Pa. Cmwlth. 1989); Radice v. Commonwealth, Dep't of Transp., Bureau of Traffic Safety, 545 A.2d 1005 (Pa. Cmwlth. 1988). Under these principles of law, [the licensee] cannot attempt to withdraw his guilty plea in this civil proceeding. When a licensee becomes aware that he is going to lose his driving privilege as-a consequence of paying a 17 fine on a summary offense, his only remedy is to seek allowance of appeal nunc pro tunc from the summary conviction. Heeter, 563 A.2d at 994. We would suggest to our legislature that it should be clearly stated on the citation, if it is not already, that a guilty plea to the offense of underage drinking will result in a license suspension. While we hold today that a licensee does not have to be warned of the collateral consequences of license suspension, we believe it would be more equitable and no great burden on the Commonwealth to provide such a warning. Duffey, 536 Pa. at 440-41, 442-43, 639 A.2d at 1176, 1177 (emphasis added). In addition, in Zanotto, we specifically rejected a licensee's argument that he was denied due process because he was not informed of the habitual offender designation at the time of his convictions, explaining: [The licensee] contends that a de novo hearing in common pleas court does not satisfy due process, because at the time of his convictions he was not informed of the ultimate consequences of multiple convictions, i.e., the triggering of f the habitual offender provision. We have recently held, however, that a de novo hearing adequately safeguards the notice and hearing requirements of due process. Yeckley v. Commonwealth of Pennsylvania, 474 A.2d 71 (Pa. Cmwlth. 1984). Cf. [Englert] (the suspension of operating privileges is a collateral consequence, civil in nature, of a conviction; a trial court's failure to inform a defendant of a potential collateral consequence does not invalidate a guilty plea). Zanotto, 475 A.2d at 1375-76 (emphasis added). In short, based on our review of Section 1542 of the Vehicle Code and applicable case law, there is simply no support for the trial court's determination that Licensee's five-year operating privilege revocation is invalid based on 18 Licensee's failure to receive notice of the habitual offender designation prior to her decision to plead guilty to her third DUI offense. Further, while the trial court found support for its decision in the implied consent warnings in Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. 1547(b)(2), we disagree that this provision supports the result reached by the trial court. To that end, unlike Section 1547, which specifically requires recitation of the consequences of a refusal to submit to chemical testing by a police officer, Section 1542 contains no counterpart. In addition, while the trial court pointed to the Supreme Court's "suggestion" to the legislature in Duffey regarding the inclusion of a license suspension warning on a citation for underage drinking, Duffey, 536 Pa. at 443, 639 A.2d at 1177, that statement, made in dicta, did not alter the Court's essential holding that "a licensee does not have to be warned of the collateral consequences of license suspension ...." Id. Perhaps more importantly, the propriety of the inclusion of any such warning is a question for the General Assembly, and that body included no warning requirement in Section 1542 of the Vehicle Code. Despite our respect for the compassionate trial court, we remain mindful of the proper roles of a trial court and an intermediate appellate court. Our roles are to apply existing law, reserving for our Supreme Court the sensitive policy judgments attendant to major changes in the law. Policy judgments must consider not only Licensee here, but also other licensees who clearly come within the habitual offender statutory sanctions, and the risk such offenders pose to 19 citizens lawfully using our roadways. While we are sympathetic to Licensee's situation, based upon the application of well-settled law to undisputed facts, we must reverse the trial court. y 4frA ,Pr,,F d ROBERT SIMPSO`N,1JUdge h� F 20 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti V. No. 145 C.D. 2013 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 31st day of October, 2013, the order of the Court of Common Pleas of Cumberland County is REVERSED. rte. d k t; a ROBERT SIMPS , Judge t rn Certified from the Record OCT 3 1 2013 ad Order j5o /,2m31743 .re-7(71 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti v. : No. 145 C.D. 2013 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant PER CURIAM ORDER :Tjxs :SO 7. AND NOW, this 21st day of March, 2014, it is ordered that the above- captioned opinion filed on October 31, 2013, shall be designated OPINION, rather than MEMORANDUM OPINION, and it shall be reported. Certified from the Record MAR 2 1 2014 and Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti V. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 145 C.D. 2013 : Submitted: October 4, 2013 • • BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION BY JUDGE SIMPSON FILED: October 31, 2013 In this appeal, the Department of Transportation, Bureau of Driver Licensing (PennDOT) asks whether the Court of Common Pleas of Cumberland County (trial court) erred in sustaining the appeal of Lynanne M. Spagnoletti (Licensee) from the five-year revocation of her operating privilege under Section 1542 of the Vehicle Code, 75 Pa. C.S. §1542 (relating to revocation of habitual offender's license). PennDOT contends the trial court abused its discretion in sustaining Licensee's appeal where Licensee had three convictions for driving under the influence (DUI) in less than five years rendering her a "habitual offender" as defined in Section 1542 of the Vehicle Code. Upon review, we are constrained to reverse. In May 2012, PennDOT notified Licensee of the revocation of her operating privilege for a period of five years based on her designation as a habitual offender as a result of her third DUI conviction. Licensee filed an appeal with the trial court. Hearings ensued. At hearing, PennDOT produced a packet of certified documents, which included the reports of Licensee's three DUI convictions, Licensee's certified driving history, and PennDOT's notice of revocation upon Licensee's third conviction. PennDOT then rested. Licensee, representing herself, testified on her own behalf. After Licensee's testimony, the trial court continued the hearing so that it could receive testimony from counsel in the underlying criminal DUI cases, "to determine the specific agreement, if any, that gave rise to [PennDOT's] designating [Licensee] a habitual offender ...." Reproduced Record (R.R.) at 38a. At a second hearing, the attorney whose office represented Licensee in connection with two of her three DUIs testified. At the conclusion of the hearing, the trial entered an order from the bench, which stated: "the Court finds that the District Attorney's office plea offers did not address the habitual offender[] designation and are not binding on [ PennDOT]. Following a review of all of the testimony; the appeal - is sustained, and The suspension that is the -subject of this appeal shall be rescinded." R.R. at 60a. PennDOT appealed, and the trial court ordered it to file a concise statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b), which it did. The trial court then issued an opinion in support of its decision pursuant to Pa. R.A.P. 1925(a). 2 In its Pa. R.A.P. 1925(a) opinion, the trial court made the following findings. Licensee's certified driving record "shows that on 30 September 2011, the first DUI General Impairment conviction was entered in Cumberland County, arising out of a 3 July 2011 violation[.]" Tr. Ct., Slip Op., 4/8/13, Finding of Fact (F.F.) No. 12. "This was followed by a second DUI Controlled Substances conviction in York County, with a one-year suspension effective 14 February 2012, for a violation on 8 May 2011[.] F.F. No. 13. Finally, the record "shows a third DUI General Impairment conviction on 10 April 2012 in Cumberland County, arising out of a violation on 28 June 2011H" F.F. No, 14. Licensee acknowledged that she did in fact receive three DUIs in six weeks. "These arrests occurred following Licensee being 'held hostage and raped in York County,' wherein after she was 'put on seven different medications as a coping mechanism." F.F. No. 5 (citing Tr. Ct. Hearing, Notes of Testimony (N.T.), 12/12/12, at 7). Jason Eric Zacek pled guilty to terroristic threats with the intent to terrorize another, simple assault, providing false identification to law enforcement officers and two counts of unlawful restraint—serious bodily injury, in connection with an April 2011 assault on Licensee.' 1 The sworn facts from the affidavit of probable cause regarding that matter are as follows: On 04/6/2011 at 1607 hrs. I was dispatched to the Motel 6 room #320 in reference to a welfare check on [Licensee]; York City Police (OFF. Knarr) wanted our department to check her status because she gave a PNC bank teller a note in York City stating she needed help and wanted the police to report a domestic disturbance with a gentleman she met on line. I (Footnote continued on next page...) Licensee's defense counsel in the two DUI matters that occurred in Cumberland County "appeared and described the medical situation as it was presented to the District Attorney's Office." N.T., 1/10/13, at 9 -11. "The Public Defender's Office represented Licensee in both cases, which resulted in two (2) (continued...) responded on scene and knocked loudly at room #320 numerous times. I announced myself as OFF. Greco NYCRPD. The room/door was locked and no one answered. I had the management staff obtain a key and entry was made. No one was inside and I found no problems. While closing the door I was approached by a white female, a young white female child, and a white male. The male saw police and suspiciously walked away and tried to flee the scene. The male was detained and brought back to room #320. The female was identified as the woman that gave the note to the bank teller. The woman [Licensee] stated she was assaulted and threatened by the male we had detained. I observed the female had visible black and blue marks /abrasions to both her upper arm areas. The female gave a positive identification on scene of the accused. I [M]irandized the accused and double locked the handcuffs. While in custody the male had no form of identification. The male gave the name of Jason Eric Za[c]ek D.O.B 05 -05 -1975. No record was found in Pa or any other surrounding states. In speaking with the victim she advised a physical altercation occurred at the Super 8 /Arsenal Rd., on 04 -03 -2011 at approx., 2300 hrs. While the physical domestic occurred the accused stated he would kill her and cut off her head somewhere in the mountains. The accused also stated he would bury her in the mountains so that no one could find the body. The victim stated the accused pushed, hit, and shoved her which caused the black and blue marks /abrasions to her both upper arm areas. I ran a Criminal History check on the accused with the name and D.O.B. he provided but no record was found in Pa or surrounding states. I believe the accused is giving false information to the police during an investigation of Terroristic Threats, Simple Assault, and Harassment. The accused was booked as John Doe due to the situation at hand. The accused also took the victims cell phone battery out of her phone so that she could not make any calls to 911 for police assistance. Based on the visible injuries on scene and her statements I charged the accused with the appropriate crimes. The victim was photographed by Cpl. Migitulski on scene. I supplied information to the victim on how to obtain a P.F.A. Tr. Ct., Slip Op., 4/8/13, Finding of Fact No. 2 (quoting Docket CP- 67 -CR- 05413 -2011, Affidavit of Probable Cause (York Cnty.)). 4 Section 3802(a)(1) General Impairment pleas[.]" F.F. No. 3. In light of the mitigating circumstances, Licensee was allowed to plead to "General Impairment," offenses that would allow her to avoid a license suspension. F.F. No. 8. "Defense counsel acknowledged the focus of her representation was on mitigating any jail time and license suspension that would arise out of these convictions[1" F.F. No. 10. "Defense counsel candidly admits that the discussion of the collateral consequences of the criminal conviction, specifically the habitual offender designation, was not discussed with her client nor the District Attorney." F.F. No. 11. At the outset of its discussion, the trial court stated that under Section 1542 of the Vehicle Code, the Commonwealth is required to revoke the operating privilege of any person whose driving record meets the criteria defining a habitual offender. Revocation is mandatory, not discretionary. Johnson v. Commonwealth, 449 A.2d 121 (Pa. Cmwlth. 1982). Further, our Supreme Court unequivocally holds that based on the language of Section 1542, PennDOT lacks discretion over whether to revoke an individual's operating license. Given three convictions in the prescribed time period, revocation is required. Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990): Nevertheless, the trial court observed that citations for underage drinking contain a specific warning regarding the consequence of a license suspension based on our Supreme Court's decision in Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994). Similarly, in the context of a refusal to submit 5 to chemical testing, specific warnings are required. See Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. §1547(b)(2). The trial court then explained: In the wake of certain United States Supreme Court rulings, our Supreme Court has recently readdressed the distinction between punitive and collateral consequences of a criminal conviction, and determined that the trial court must ascertain whether the consequence is `so punitive either in purpose of effect as to negate the intention to deem it civil.' [Commonwealth v. Abraham, Pa. , 62 A.3d 343, 350 (2012)]. The Supreme Court went on to outline this distinction and specifically cited [Duffey], which dealt with a ninety (90) day license suspension arising out of an offense under the Crimes Code. The applicable case law that addresses license suspension consequences as civil in nature has been with us since the 1990's, but is still relied upon in meting out suspensions.... Being decades old, the well settled case law needs to be revisited in light of changes in the law in those intervening years. ... [T]here is a dearth of statutory or case law for any equitable notice prior to the imposition of the habitual offender designation and its corresponding, significantly longer suspension. The legislative intent in a license suspension has been both a criminal punishment and a civil consequence. When Section 1542 [of the Vehicle Code] was originally enacted, it was designed to be a civil consequence. However, since license suspensions have a punitive aspect within the sentencing matrix, any imposition includes components of restraint, retribution, and deterrence for this already criminal act. What had been the distinguishing [Abrahaml factor, scienter, has now taken this suspension from civil to criminal. Prior to [Duffey], awareness of the statutory civil suspension was not at issue; however, the last twenty years of legislative and court actions now mandates cognizance prior to the imposition of a civil license sanction. 6 The notice procedures now involved with other license suspensions since [Duffey] combined with the lack of any notice requirement in a habitual offender situation, leads to the logical conclusion that the disparate treatment makes the mandatory notice suspensions clearly civil, while suspensions without warning are punitive and thus criminal. Through lack of pace with other civil license suspensions, Section 1542 has moved under the rubric of Padilla v. Kentucky, 559 U.S. 356 (2010). As such, before such punitive consequences can be enforced, as they are a direct consequence of a plea where the suspension is mandatory, it must be explained to a pleading defendant in order to constitute a knowing and informed decision. Under this analysis, the rescission of the five year license suspension is proper. In the alternative, our Supreme Court's direction in [Duffey] that prior notice be provided in summary license suspensions, together with the legislatively mandated notice prior to civil license suspension in situations such as chemical test refusal, indicates that notice of a suspension is now a predicate to any civil license suspension. There being no prior notice in this case compels that the designation of habitual offender be prohibited from enforcement. ... Tr. Ct., Slip Op. at 7-8. Thus, the trial court determined the habitual offender designation requires an informed decision following full and adequate legal representation prior to a third offense DUI plea within five years. Alternatively, prior to the imposition of a habitual offender designation, the Commonwealth must show prior notice of the civil consequences. As such, the trial court opined, it properly sustained Licensee's appeal, and this Court should affirm rescission of the suspension. This matter is now before us for disposition.' 2 This Court previously precluded Licensee from filing a brief based on her failure to do so in accordance with the briefing schedule issued by this Court. 7 On appeal,' PennDOT argues it correctly revoked Licensee's operating privilege. Specifically, PennDOT asserts Licensee was convicted of three DUIs within five years making her a "habitual offender" as defined in the Vehicle Code. While PennDOT is sympathetic toward Licensee as a victim of crime, the Vehicle Code nonetheless requires it to revoke her license for five years because she fits the definition of a habitual offender. PennDOT maintains the trial court agreed, stating: "Technically speaking, the Commonwealth's habitual offender designation is accurate and the [revocation] should have been upheld." R.R. at 98a. Regardless of circumstance, PennDOT contends, neither it nor the trial court has discretion to determine if a habitual offender's license should be revoked. PennDOT argues the trial court abused its discretion when it overrode the law and sustained Licensee's appeal. PennDOT asserts the trial court's reasoning for sustaining Licensee's appeal is inconsistent with the Vehicle Code and relevant, precedential case law. The habitual offender revocation is a collateral civil consequence of criminal convictions because it is a civil requirement over which a sentencing judge has no control. Thus, there is no requirement for a warning of the consequence of pleading guilty to a third DUI violation within five years. See Duffey; Abraham. PennDOT also maintains the trial court's examples of situations where warnings of possible license suspensions are given do not support the trial 3 Our review is limited to determining whether the trial court's findings were supported by competent evidence, whether errors of law were committed, or whether the trial court's determinations demonstrated a manifest abuse of discretion. Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). 8 court's position that warnings are required for all license suspensions, including the five-year revocation based on a habitual offender designation. To that end, this Court directly holds that a failure to warn a licensee that pleading guilty or entering a pre-adjudication program will result in a habitual offender designation does not allow for rescission of the five-year license revocation. See Brewster v. Dep't of Transp., 503 A.2d 497 (Pa. Cmwlth. 1986) (en bane); see also Brophy v. Dep't of Transp., 503 A.2d 1010 (Pa. Cmwlth. 1986). PennDOT further contends the details of what occurred in the litigation of Licensee's DUI convictions is simply not relevant to her designation as a habitual offender because the facts establish she had three DUI convictions in less than five years. Further, PennDOT argues, contrary to the trial court's reasoning, neither Duffey nor the refusal warnings required by Section 1547 of the Vehicle Code support the trial court's conclusion that Licensee must have been warned of the collateral consequences of her guilty plea. PennDOT asserts that, short of the legislative remedy of inserting a warning requirement into Section 1542 of the Vehicle Code, Licensee's only potential remedy was to seek relief from one of her DUI convictions in criminal court. See Duffey. Section 1542 of the Vehicle Code states, in relevant part (with emphasis added): (a) General rule.--The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A "habitual offender" shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed 9 after the effective date of this title and within any period of five years thereafter. (b) Offenses enumerated. - -Three convictions arising from separate acts of any one or more of the following offenses committed by any person shall result in such person being designated as a habitual offender: (1.1) Any violation of Chapter 38 (relating to driving after imbibing alcohol or utilizing drugs) except for sections 3801(a)(1) and (b) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and 3809 (relating to restriction on alcoholic beverages). (d) Period of revocation.--The operating privilege of any person found to be a habitual offender under the provisions of this section shall be revoked by the department for a period of five years.... 75 Pa. C.S. §1542(a), (b) (1.1), (d). "In a license suspension case, the only issues are whether the licensee was in fact convicted, and whether [Penn]DOT has acted in accordance with applicable law." Dep't of Transp., Bureau of Driver Licensing v. Tarnopolski, 533 Pa. 549, 552, 626 A.2d 138, 140 (1993). PennDOT bears the initial burden to establish a prima facie case that a record of conviction supports a suspension. Taddei v. Dep't of Transp., Bureau of Driver Licensing, 982 A.2d 1249 (Pa. Cmwlth. 2009). An essential part of satisfying this burden is the production of an official record of the conviction supporting the suspension. Glidden v. Dep't of Transp., Bureau of Driver Licensing, 962 A.2d 9 (Pa. Cmwlth. 2008). PennDOT must also establish it acted in accordance with applicable law. Id. 10 Here, PennDOT entered a certified packet of eight documents into the record without objection. R.R. at 30a. These documents constitute official records of Licensee's convictions. Relevant here, PennDOT's certified packet of documents includes Licensee's driving history documenting her three convictions for DUI, as well as the reports of each conviction, within a period of less than one year, justifying her designation as a habitual offender. See R.R. at 67a, 74a, 76a, 78a-80a. These certified documents satisfied PennDOT's initial burden to establish the convictions underlying Licensee's designation as a habitual offender. Fetty v. Dep't of Transp., Bureau of Driver Licensing, 784 A.2d 236 (Pa. Cmwlth. 2001); Martino v. Commonwealth, 541 A.2d 425 (Pa. Cmwlth. 1988). To overcome the rebuttable presumption that she was convicted of these offenses, Licensee bore the burden of proving by clear and convincing evidence that the record was erroneous. Mateskovich v. Dep't of Transp., Bureau of Driver Licensing, 755 A.2d 100 (Pa. Cmwlth. 2000). Clear and convincing evidence is "evidence that is so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue." Id. at 102 n.6 (citation omitted). Here, Licensee did not present any rebuttal evidence regarding her DUI convictions. Rather, Licensee admitted she received three DUIs in the six- week period after she was the victim of a violent crime. R.R. at 31a. Licensee explained that she was prescribed medication and underwent trauma therapy as a result of her victimization. Id. Licensee asserted she was "just asking that ... the five year [revocation] be lifted because of extreme extenuating circumstances." Id. 11 The trial court also heard testimony from Licensee's former criminal defense counsel, whose office represented Licensee in two of her three underlying criminal DUI cases. Licensee's former counsel testified that, with regard to the DUI case in which she personally represented Licensee, based on mitigating circumstances, the district attorney allowed Licensee to plead guilty to a first offense, general impairment DUI. See Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. However, Licensee's former counsel agreed she did not consider or discuss the potential for the habitual offender designation with Licensee based on Licensee's three DUI convictions. R.R. at 53a-54a. Ultimately, the trial court sustained Licensee's appeal, and rescinded the five-year license revocation. R.R. at 60a. For the reasons set forth below, the trial court erred in sustaining Licensee's appeal. It is well-settled that, "[t]he mandatory suspension of a driver's license upon conviction for DUI is a collateral civil penalty administratively imposed by [PennDOT] pursuant to the mandates of the Motor Vehicle Code not the Crimes Code. Thus, the mandatory suspension is not a direct criminal penalty, but rather, is a civil sanction ...." Commonwealth v. Wolf, 534 Pa. 283, 290, 632 A.2d 864, 867 (1993) (emphasis in original); see also Duffey. More particularly, in the context of a license revocation under Section 1542 of the Vehicle Code, an en bane panel of this Court previously stated: [A] license revocation is a civil proceeding. The suspension of operating privileges is, therefore, a collateral consequence of any criminal proceedings. It is a consequence, civil in nature, whose imposition has been vested in an administrative agency over which the criminal judge had no control and for which he 12 had no responsibility. Courts have thus consistently held that a trial court's failure to inform a defendant of this potential collateral consequence does not invalidate his guilty plea. Brewster v. Dep't of Transp., 503 A.2d at 498 (citation and quotation omitted); accord Brophy."' Further, contrary to the trial court's statements at the hearings here, the details of Licensee's plea agreement in the underlying criminal proceedings are not relevant. To that end, as we explained in Stair v. Department of Transportation, Bureau of Driver Licensing, 911 A.2d 1014 (Pa. Cmwlth. 2006): [R]egardless of whether a plea agreement existed in the underlying criminal proceedings, it has no effect on [PennDOT's] duty under the relevant provisions of the Vehicle Code to impose the instant license suspension and ignition interlock requirement. In other words ... neither the district attorney in plea bargaining, nor the court of common pleas when deciding a criminal matter, has jurisdiction to bind [PennDOT] to withdraw a civil license suspension. The statutory suspensions following ... a conviction for [DUI] are not bargaining chips to be traded in exchange for criminal convictions; rather, they are mandatory civil penalties, imposed not for penal purposes, but to protect the public by providing an effective means of denying an intoxicated motorist the privilege of using our roads. 4 We note that in Sondergaard v. Department of Transportation, Bureau of Driver Licensing, 65 A.3d 994 (Pa Cmwlth. 2013), this Court held that a lifetime disqualification of an individual's commercial driver's license (CDL) under the Uniform Commercial Driver's License Act, 75 Pa. C.S. §§1601-1620, is penal in nature because, unlike the "privilege" of operating a motor vehicle, the lifetime disqualification on a CDL results in an individual's loss of the right to practice his chosen profession. Id. at 997. "The severity of this sanction transforms what is a remedial law in the context of a one-year disqualification, into a penal one." Id. Here, unlike in Sondergaard, we are not confronted with a lifetime ban on an individual's chosen profession, but rather the temporary loss of the privilege of operating a motor vehicle. 13 Id. at 1018 (citations and quotations omitted). Similarly, "[a] licensee may not collaterally attack an underlying criminal conviction in a civil license suspension proceeding." Piasecki v. Dep't of Transp., Bureau of Driver Licensing, 6 A.3d 1067, 1071 (Pa. Cmwlth. 2010) (quoting Duffey, 536 Pa. at 443, 639 A.2d at 1177)). Here, it is undisputed that Licensee pled guilty to three DUI violations in less than a year. These convictions triggered PennDOT's duty to revoke Licensee's operating privileges for five years under .75 Pa. C.S. §1542. PennDOT's designation of Licensee as a habitual offender was proper, and the five-year revocation of her operating privileges is mandatory. Id. The trial court conceded as much in its opinion, stating: "Technically speaking, the Commonwealth's habitual offender designation is accurate and the suspension should have been upheld." Tr. Ct., Slip Op. at 7. Indeed, once PennDOT submitted an unrebutted certified record of Licensee's three DUI convictions in less than a year, the trial court lacked discretion to modify the mandatory five-year revocation of Licensee's operating privileges. See 75 Pa. C.S. §1542(a), (b)(1.1), (d); Bursick, 526 Pa. at 11, 584 A.2d at 293 ("[PennDOT] is required to revoke the operating privilege of any person whose driving record meets criteria defining .a habitual offender. Revocation is mandatory, not discretionary.") (emphasis in original); Dep't of Transp., Bureau of Traffic Safety v. Hill, 543 A.2d 211, 212 (Pa. Cmwlth. 1988) ("When the common pleas court finds that the licensee has committed the violation for which the penalty was imposed, it is a manifest abuse of discretion to modify the penalty because the court disagrees with the penalty.") (Citation omitted). 14 Moreover, our Supreme Court's recent decision in Abraham does not alter this result. There, the Court considered whether a public school teacher's criminal defense counsel was ineffective for failing to inform the teacher that he would forfeit his pension upon pleading guilty to specified offenses. The Court framed the issues before it as: (1) whether, in light of Padilla, the distinction in Pennsylvania between direct and collateral consequences to define scope of constitutionally "reasonable and professional assistance" required under Strickland v. Washington, 466 U.S. 668 (1984), is appropriate; and, (2) if so, whether the forfeiture of a pension that stems from a public school teacher's negotiated plea to crimes committed in the scope of his employment is a collateral civil consequence of a criminal conviction that relieves counsel from any affirmative duty to investigate and advise. In resolving the first issue, the Court held: Padilla did not abrogate the application of [a direct versus collateral consequences] analysis in cases that do not involve deportation. Frometa's[5] general holding remains: a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Abraham, Pa. at , 62 A.3d at 350 (emphasis added). After determining the direct versus collateral consequences analysis remained viable in cases other than those involving deportation, the Court then explained that it previously defined the distinction between a direct and collateral 5 See Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989), abrogated in part Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation was a collateral consequence of a guilty plea and therefore did not need to be explained to the defendant). 15 consequence of a guilty plea as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control. In determining whether a statutory provision constitutes a criminal penalty or a civil requirement, the Court observed it previously adopted the U.S. Supreme Court's analysis in Smith v. Doe, 538 U.S. 84 (2003). After a comprehensive analysis of the factors set forth in Smith, the Court ultimately held the pension forfeiture statute was not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. Because the statute was not punitive in nature, the Court held forfeiture of the pension was a collateral consequence of the teacher's guilty plea. Further, because counsel could not be deemed ineffective for failing to advise the teacher regarding the collateral consequences of his plea, the Court rejected the ineffective assistance of counsel claim. Of further note, in Abraham, the Supreme Court cited its 1994 decision in Duffey, observing that "Duffey held the loss of driving privileges is a collateral consequence of a conviction for underage drinking ...." Abraham, Pa. at , 62 A.3d at 350, n.8.6 The issue in Duffey was whether the license suspension triggered by an underage drinking conviction was a criminal penalty requiring a licensee to knowingly and intelligently cOnsent to such a suspension when he made his plea bargain. In resolving this issue, the Court stated: Today, we hold that loss of driving privileges is a civil collateral consequence of a conviction for underage drinking .... Courts of this Commonwealth have consistently recognized 6 The Court also cited Duffey when it reiterated that the distinction between a direct and collateral consequence of a guilty plea was effectively defined as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control. Commonwealth v. Abraham, Pa. , 62 A.3d 343 (2012). 16 that a license suspension is a collateral civil consequence of a criminal conviction. See Commonwealth v. Englert, 457 A.2d 121 (Pa. Super. 1983) (suspension imposed following a conviction for failing to stop at the scene of an accident constituted a civil collateral consequence); [Brophy] (operating privilege suspension as a habitual offender constitutes a collateral civil consequence of acceptance of ARD on the underlying offense). See also [Bursick]; [Brewster]; Zanotto v. Department of Transportation, Bureau of Driver Licensing, 475 A.2d 1375 (Pa. Cmwlth. 1984). We recognize that these cases involved offenses other than underage drinking. However, we find that these cases establish that license suspension is properly considered a collateral consequence rather than a criminal penalty. As we hold that [the licensee's] suspension is a collateral civil consequence of his conviction, there is no requirement that he know of this consequence at the time of his guilty plea. [The licensee's] loss of driving privileges is irrelevant to the determination of whether a guilty plea was entered voluntarily and knowingly. ... As we hold that the suspension of operating privileges pursuant to 18 Pa. C.S.A. [sic] § 6310.4 is a collateral civil consequence of a criminal conviction and is not part of the criminal sentence, we must also hold that it is not proper for the [licensee] to attack the validity of the criminal conviction upon which [Penn]DOT based the suspension in this civil proceeding. We have established that a licensee may not collaterally attack an underlying criminal conviction in a civil license suspension proceeding. In [Bursick], this court held that the scope of review of an operating privilege suspension which resulted from a criminal conviction does not include the authority to attack the validity of the underlying criminal conviction. See also [Wolf]. Numerous Commonwealth Court decisions have adhered to this principle. See, E.g., Commonwealth De • 't of Trans Bureau of Driver Licensin v. Heeter, 563 A.2d 993 (Pa. Cmwlth. 1989); Radice v. Commonwealth, Dep't of Transp., Bureau of Traffic Safety, 545 A.2d 1005 (Pa. Cmwlth. 1988). Under these principles of law, [the licensee] cannot attempt to withdraw his guilty plea in this civil proceeding. When a licensee becomes aware that he is going to lose his driving privilege as a consequence of paving a 17 fine on a summary offense, his only remedy is to seek allowance of appeal nunc pro tunc from the summary conviction. Heeter, 563 A.2d at 994. We would suggest to our legislature that it should be clearly stated on the citation, if it is not already, that a guilty plea to the offense of underage drinking will result in a license suspension. While we hold today that a licensee does not have to be warned of the collateral consequences of license suspension, we believe it would be more equitable and no great burden on the Commonwealth to provide such a warning. Duffey, 536 Pa. at 440 -41, 442 -43, 639 A.2d at 1176, 1177 (emphasis added). In addition, in Zanotto, we specifically rejected a licensee's argument that he was denied due process because he was not informed of the habitual offender designation at the time of his convictions, explaining: [The licensee] contends that a de novo hearing in common pleas court does not satisfy due process, because at the time of his convictions, he was not informed of the ultimate consequences of multiple convictions, i.e., the triggering of the habitual offender provision. We have recently held, however, that a de novo hearing adequately safeguards the notice and hearing requirements of due process. Yeckley v. Commonwealth of Pennsylvania, 474 A.2d 71 (Pa. Cmwlth. 1984). Cf. [Englert] (the suspension of operating privileges is a collateral consequence, civil in nature, of a conviction; a trial court's failure to inform a defendant of a potential collateral consequence does not invalidate a guilty plea). Zanotto, 475 A.2d at 1375 -76 (emphasis added). In short, based on our review of Section 1542 of the Vehicle Code and applicable case law, there is simply no support for the trial court's determination that Licensee's five -year operating privilege revocation is invalid based on 18 Licensee's failure to receive notice of the habitual offender designation prior to her decision to plead guilty to her third DUI offense. Further, while the trial court found support for its decision in the implied consent warnings in Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. §1547(b)(2), we disagree that this provision supports the result reached by the trial court. To that end, unlike Section 1547, which specifically requires recitation of the consequences of a refusal to submit to chemical testing by a police officer, Section 1542 contains no counterpart. In addition, while the trial court pointed to the Supreme Court's "suggestion" to the legislature in Duffey regarding the inclusion of a license suspension warning on a citation for underage drinking, Duffey, 536 Pa. at 443, 639 A.2d at 1177, that statement, made in dicta, did not alter the Court's essential holding that "a licensee does not have to be warned of the collateral consequences of license suspension ...." Id. Perhaps more importantly, the propriety of the inclusion of any such warning is a question for the General Assembly, and that body included no warning requirement in Section 1542 of the Vehicle Code. Despite our respect for the compassionate trial court, we remain mindful of the proper roles of a trial court and an intermediate appellate court. Our roles are to apply existing law, reserving for our Supreme Court the sensitive policy judgments attendant to major changes in the law. Policy judgments must consider not only Licensee here, but also other licensees who clearly come within the habitual offender statutory sanctions, and the risk such offenders pose to 19 citizens lawfully using our roadways. While we are sympathetic to Licensee's situation, based upon the application of well-settled law to undisputed facts, we must reverse the trial court. ROBERT SIMPS , Judge 20 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lynanne M. Spagnoletti v. : No. 145 C.D. 2013 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant • • ORDER AND NOW, this 31S` day of October, 2013, the order of the Court of Common Pleas of Cumberland County is REVERSED. ROBERT S PS , Judge (ommontueattij Court of Vennopthania Kristen W. Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P.O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 www.pacourts.us June 6, 2014 CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: DOT v. Spagnoletti. L. 145 CD 2013 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 12-3483 CIVIL TERM Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description trial court record Remand/Remittal Date: April 19, 2013 1 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Commonwealth Court Filing Office Fa r