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IL'R:--:FR \"l>t)CU~;NEI F
JAN L. SHAHAN,
petitioner
: IN THE COURT OF COMMON PLEAS
.
.
v.
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-6742 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,:
Respondent
PBTXTIONBR'S HBMORAHDUM
I'aot.
On February 12, 1994, the petitioner was stopped at a traffic
signal at Seventh and Foster Streets in the city of Harrisburg when
her car was struck by another vehicle attempting to make a u-turn.
An accident investigation was conducted by the Capitol police who
subsequently arrested petitioner for driving under the influence
of alcohol. A breathalyzer test revealed a blood alcohol level of
12%. A search conducted incident to the arrest revealed a spoon,
mirror, pipe and glassine bag with the residue of cocaine in
petitioner's purse and .63 grams of marijuana in a film canister
in the car's glove compartment.
On September 12, 1994, the petitioner pleaded guilty to
driving under the influence, simple possession of cocaine,
possession of drug paraphernalia and possession of a small amount
of marijuana.
petitioner received a fine and two day prison
sentence for the driving under the influence charge and fines and
probationary sentencos for the other charges.
By notice dated October 20, 1994, the Department advised
petitioner that her license was suspended for one year as a result
1
of her conviction of driving under the influence.
By notice dated october 31, 1994, the petitioner received
notice of an additional six month suspension for her conviction of
the possession of a small amount of marijuana. A third notice,
also dated October 31, 1994, advised petitioner that her conviction
for the possession of cocaine was her third major violation within
five years, and as a result her license would be revoked for na
additional five years under the habitual offender provisions of the
Vehicle Code. 75 Pa. C.S.A. 1542(0).
Issue
Whether petitioner's three convictions arising
out the February 12, 1994, episode permit the
application of the habitual offender provi-
sions of the Vehicle Code.
Arqument
section 1542 of the vehicle code provides:
(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 convic-
tions 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 anyone or more of the following
offenses committed either sinaularlv or in combination
by any person shall result in such person being desig-
nated as a habitual offender:
2
(1) Any offense set forth in section 1532
(relating to revocation or suspension of operating
privilege) .
(2) operation following suspension of registra-
tion as defined in section 1371 (relating to
operation following suspension of registration).
(3) Making use of or operating any vehicle
without the knowledge or consent of the owner or
custodian thereof.
(4) utilizing a vehicle
transportation or unlawful sale
controlled substance.
in the unlawful
of alcohol or any
(5) Any felony in the commission of which a
court determines that a vehicle was essentially
involved.
. . .
(d) Period of Revocation.-The operating privilege of any
person found to be a habitual offender under the provi-
sions of this section shall be revoked by the department
for a period of five years.
(emphasis supplied)
While the statue specifically permits the status of habitual
offender to be imposed based on three convictions arising from a
single episode, the commonwealth and Supreme Courts have emphasized
that the convictions must arise from separate and distinct acts.
In an early case, the Commonwealth Court held the statute properly
applied when the offenses of driving under the influence, fleeing
or attempting to elude police, and leaving the scene of an accident
involving property damage, were committed during a single episode.
Brewster v. Commonwealth of pennsvlvania., 52 Pa. cmwlth 11?, 415
A.2d 922 (1980).
The circumstances surrounding appellant's three convic-
tions, it is urged, do not evidence "habitual" conduct
3
in the common sense. Where, however, the legislature has
specifically defined a term, as in Section 1542 it has
defined "habitual offender", this Court may not frustrate
the clear legislative intent by interpreting such term
according to its usual and customary meaning in disregard
of the legislature I s intended usage. Since the requisite
offenses for purposes of Section 1542 may be "committed
either singularly or in combination" we are constrained
to agree with the department I s application of section
1542. Brewst~, 415 A.2d at 924.
Nevertheless, the Supreme Court has held that defendant I s
convictions for three counts of homicide by motor vehicle arising
from a single collision were not separate acts for purposes of the
habitual offender status. The court construed the statute consis-
tent with what it saw to be its "apparent thrust" - the punishment
of persons who made a "habit" of committing serious code viola-
tions.
In the present case we have an individual, who by a
single act caused multiple consequences. The propriety
of the multiple criminal sanctions he must suffer as a
result of that act is without question. However, for the
purpose of a recidivist penalty it would be unjust, and
in derivation of the intent of the statute, to separate
out the consequences of this one act in order to catego-
rize this individual as a person with a propensity to
commit repeated offenses. Wherefore, we find the three
convictions for homicide by vehicle, having resulted from
a single act, are not to be considered as separate
offenses for the purpose of classifying this appellant
as an habitual offender pursuant to 75 Pa. C.S.A. section
1542. Frontini, 593 A.2d at 412.
In a recent case, the Commonwealth Court held that defendant's
convictions for driving under the influence, leaving the scene of
an accident involving damage to a vehicle, and leaving the scene
of an accident involving personal Injury, all arising from a single
incident, did not constitute three distinct acts for purposes of
the statute. Hill v. Commonwealth of Pennsvlvania. Department of
4
TransDortation, 1175 CD 1994 filed November 14, 1994 (attached).
Hill had been driving under the influence when he hit one vehicle
which was propelled into a second vehicle in which an occupant was
injured. Hill then left the scene. The court held that Hill's two
convictions for leaving the scene constituted one act for purposes
of section 1542. While the court carefully noted that the issue
before it was not whether multiple convictions arising from a
single episode can ~ constitute more than a single offense for
purposes of the habitual offender statute, the court stated that
such an argument was "plausible" and seemed to invite the oppor-
tunity to overrule its earlier holding in Brewster.
The specific issue before this court arises as a consequence
of a 1993 amendment to section 1532 of the vehicle code.
This
section, which had enumerated the vehicle code offenses for which
a suspension or revocation of licence could be imposed, was amended
in 1993 to include driver's license suspensions imposed for
violation of the drug act.1
prior to the amendment section 1532, the commonwealth Court
had addressed the question whether multiple convictions of the drug
act which arose from a single criminal episode would trigger the
enhancement provisions of section 13 (m) which provided for increas-
ing penalties for second and subsequent offenders.
In commonwealth v. Perruso, 160 Pa. cmwlth 49, 634 A.2d 692
(1993), the defendant's vehicle was searched and a small amount of
1
These suspensions were previously imposed pursuant to
Section 13(m) of the drug act. 35 Pa. C.S.A. 780-113(m).
5
marijuana and a quantity of hallucinogenic mushrooms were found.
The defendant pleaded guilty to two counts of possession under the
drug act.
Thereafter, the defendant received two notices for
suspension from the Department of Transportation.
The first gave
notice of a ninety day suspension for a first offense and the
second, notice of a on~ year suspension for a second offense. The
commonwealth Court held that the enhancement provisions were
inapplicable under the circumstances.
In the present case, the legislature, in enacting section
13(m) of the Drug Act, gave no authorization to treat one
as a habitual offender for convictions arising from the
same incident. If the legislature had intended the same
result, it could have used the same language Nhen passing
section 13 (m) more than ten years later. For that
reason, DOT's argument in this regard is not supported
by the cases based upon section 1542 of the Vehicle Code.
It is clear that a person who has no prior convictions
under the Drug Act is not among the class of person which
the legislature intended to subject to the penalty
enhancement provisions of section 13(m). perruso, 634
at 695.
Even wh9re the defendant pled guilty to 21 violations occur-
ring over a period of eight months, the court found it inap-
propriate to invoke the enhancement provisions of section 13 (m)
where the defendant had no prior drug related convictions.
HesterkamD v. commonwealth, _ Pa. Cmwlth _, 644 A.2d 262
(1994).
When in 1993 the license suspension provisions of section
13(m) were repealed and transferred to section 1532 of the Vehicle
Code, it then became legally possible to become a "habitual
offender" for convictions which had no relationship whatsoever with
a motor vehicle. It also raised the question, not yet answered by
6
the appellate courts, whether section 1542's habitual offender
provisions, requiring convictions for three enumerated offenses
"committed singularly or in combination," would apply to drug
offenses. It is clear that the petitioner would not be subject to
the enhancement provisions of repealed section 13 (m) under the
holdings of Perruso and HesterkamD. When the provisions of that
seotion were moved to section 1532 of the vehicle code, one can
suppose that the reasoning of these decisions moved with it. If
that is so, than multiple drug convictions arising out of a single
episode would be considered a single "offense" for purposes of the
enhancement provisions mll'l therefore, for the purposes of the three
"offense" requirement of Section 1542 concerning habitual of-
fenders.
Further, the Supreme Court has not, as is apparent in Fron-
llni, been inclined to liberally apply the habitual offender
provisions of 1542 to acts arising out of a single episode. The
oourt has regarded this section as a recidivist provision and all
but required a previous conviction before allowing its application.
The Commonwealth Court, for its part, has apparently retreated from
its holding in Brewster and has characterized as "plausible" the
argument (Which was not even made in the case) that a previous
conviction is required before one can be regarded as a habitual
offender under section 1542.
Finally, it is submitted that petitioner I s possession of
cocaine and marijuana comprise a single act for purposes of Section
1542, which along with petitioner's conviction for driving under
7
five-year revocation for the third violation based on the habitual
offender statute, which provides:
(a) General rule.--The department shall
revoke the operating privilege of any person
found to be a habitual offender purruant 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
arisina from seoarate acts of anyone or more
of the following offenses committed either
singularly or in combination by any person
shall result in such person being designated
as a habitual offender....
(d) pericd 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. S1542 (emphasis added).
The trial court, in a well-written opinion, denied with
some apparent reluctance Hill's challenge to the five-year
revocation. Hill now appeals to this Court. I
lOur scope of review of a trial court decision in a license
suspension case is limited to determining whether the court made
findings of fact unsupported by substantial evidence, committed an
error of law or abused its discretion. Department of
Transportation. Bureau of Driver Licensina v. Les~isin, 156 Pa.
Commonwealth Ct. 666, 628 A.2d 1208 (1993).
2
Hill's argument in this appeal is that an individual with
no prior offenses who receives three convictions arising from two
acts in a single incident should not be considered a habitual
offender under the habitual offender statute. Hill expressly does
not ground his contention on the fact that the violations occurred
in a series of a single event, but instead argues that there were
only two acts involved herein, i.e., driving under the influence of
alcohol and striking a vehicle; he maintains that the chain
reaction which took place, whereby the vehicle he struck in turn
struck another vehicle, does not constitute a third act.
In Frontini v. Department of Transportation, 527 Pa. 448,
593 A.2d 410 (1991), our Supreme Court held that an appellant's
three convictions for homicide by vehicle were not separate acts,
but resulted from a single act, and were therefore not to be
considered separate offenses under the habitual offender provision.
The Court also wrotA:
The apparent thrust of the habitual offender
statute is to punish persons who make a
'habit' of violating the more serious
provisions of the vehicle code, thus causing
themselves to be a menace to the other
licensed drivers in Pennsylvania. Thus, the
habitual offender statute is recidivist in
nature, concerning itself with the number of
prior acts committed by the offender, as
opposed to the multiple consequences of any
one act....
Statutes such as these, provide for enhanced
penalties for individuals with a propensity to
commit repeated offenses of the same type.
~. at 451-452, 593 A.2d at 412.
3
We relied on Frontini in deciding that, under former
Section 13(m) of the Drug Act, formerly 35 P.S. ~780-113(m), now
replaced by 75 Pa. C.S. ~1532(c), multiple convictions arising out
of a single incident constitute only a single offense. Department
of TransDortation. Bureau of Driver Licensina v. Perruso, 160 Pa.
Commonwealth ct. 49, 634 A.2d 692 (1993), petition for allowance of
appeal denied, ____ Pa. ____, ____ A.2d ____ (1994), The statute
there was not expressly recidivist, as is the habitual offender
statute by its very title and terms. Nevertheless, we recognized
that provisions which are in fact recidivist or enhancement
provisions are designed to deter future criminal behavior, and it
. is therefore improperly simplistic to treat separate offenses
arising from the same incident as two separate offenses under said
provisions. IS. On the other hand, we also recognized that the
habitual offender statute provides specific authority to treat one
as a habitual offender for convictions arising from the same
incident, in that it defines a habitual offender as one having
"[tJhree convictions arising from separate acts of anyone or more
of the following offenses committed either singularly or in
combination. . . II IS.
We then cited Brewster v. Department of
Transportation, 52 Pa. Commonwealth ct. 112, 114-115, 415 A.2d 922,
924 (1980), the case which the trial court. believed compelled the
denial of Hill's appeal, wherein we upheld a five-year revocation
under section 1542 for three separate offenses occurring during a
single incident:
The circumstances
three convictions,
surrounding appellant's
it is urged, do not
4
evidence 'habitual' conduct in the common
sense. Where, however, the legislature has
specifically defined a term, as in Section
1542 it has defined 'habitual offender,' this
Court may not frustrate the clear legislative
intent by interpreting such term according to
its usual and customary meaning in disregard
of the legislature's intended usage.
However, as noted above, Hill does not ask this Court to
hold in the habitual offender context that multiple convictions
arising from the same incident constitute a single offense,2 but
instead argues that he committed two, rather than three, ~ under
the statute. We agree with this contention and therefore conclude
that the five-year revocation provision under the statute does not
apply to Hill. We hold that the two convictions here for leaving
the scene of an accident constitute one act for purposes of section
1542.
with one act of leaving the scene of all accident, Hill
violated 75 Pa. C.S. 53743, because the acoident resulted in damage
to a vehicle, and 75 Pa. C.S. 53742, because the accident resulted
in injury or death.
Hill does not dispute his receiving two
convictions. Nor does he suggest that driving under the influence
of alcohol was not a separate act. However, as in Frontini, and
unlike other cases cited herein, here there was clearly a single
act that gave rise to multiple convictions.
2Nevertheless, given the rationale in Frontini and portions of
the discussion in Perruso and Brewster, as well as the very nature
of the habitual offender statute and the language therein, we must
admit it is a plausible argument that, contrary to our earlier
holding in Brewster, several convictions arising from the same
incident, where no prior convictions exist, should be treated as
only as a single conviction under the habitual off~nder statute.
5
We disagree with DOT's assertion that two separate acts
occurred when 1) Hill hit one vehicle, and 2) when, a split-second
later, Hill pushed that vehicle into another vehicle. First, the
convictions here were for leaving the scene of an accident in which
one is involved. Second, we simply think DOT's assertion is
facially too fine of a distinction, particularly in view of the
statute and Frontini. We also conclude that the cases DOT cites
are distinguishable. As we have stated, Brewster involved the
argument that all offenses arising from a single incident, rather
than act, constitut.e only one offense for purposes of section 1542.
Moreover, the appellant there committed what, in contrast to this
case, are arguably three separate acts -- driving under the
influence of alcohol, fleeing police and leaving the scene of an
accident involving property damage.
Similarly, the appellant in Melcher v. Commonwealth, 58
Pa. Commonwealth ct. 634, 428 A.2d 773 (1981) committed the acts of
racing on highways, fleeing police and driving without lights to
avoid identification. The Supreme Court in Frontini distinguished
Department of Transportation. Bureau of Traffic Safety v, Frve, 88
Pa. Commonwealth ct. 380, 489 A.2d 984 (1985), aff'd, 514 Pa. 219,
523 A.2d 332 (1987), stating that the defendant in ~ committed
a series of separate and distinct acts within a narrow time frame.
In Ross v. Deoartment of Transportation. Bureau of Driver
Licensinq, 125 Pa. Commonwealth ct. 256, 557 A.2d 62 (1989),
oetition for allowance of appeal denied, 524 Pa. 623, 571 A.2d 385
6
(1989), the appellant had a prior conviction before being convicted
for what was determined, after close examination of the elements
involved in each offense, to be distinct acts of driving without
lights to avoid identification and fleeing a police officer. In
Weaver v. Dcpartment of Transpor.tation. Bureau of Traffic Safetv,
52 Pa. Commonwealth ct. 625, 416 A.2d 628 (1980), the appellant
committed within ten minutes the acts of driving under the
influence of alcohol or controlled substance, fleeing police and
leaving the scene of an accident involving pr.operty damage. All of
these cases involve distinctions in action rather than factual
rssult, and certainly involve greater cUstinctions than causing
injury to a person in one car but only causing damage to another.3
All of these cases, except Ross, predate Frontini.
We conclude that the two convictions in this case based
on the act of leaving the scene of an accident are directly
analogous to the situation in Frontini, wherein the appellant, with
one act, committed three counts of homicide by motor vehicle and
received three convictions and three sentences thereon. We follow
our Supreme Court's statement in that case:
In the present case we have an individual, who
by a single act caused multiple consequences.
3presumably, if someone in the car that Hill's car hit had
been injured, Hill would have faced two counts of violating section
3742, instead of one count under that section and another under
section 3743. The general rule language in both sections is
identical, except one deals with an accident "resulting only in
damage to a vehicle or other property which is driven or attended
by any person" and the other deals with an accident "resulting in
injury or death of any person."
7
5. During a search conducted incident to the arrest, .63 of
a gram of marijuana was found in petitioner's car and drug
paraphernalia with cocaine residue was found on petitioner's
person.
6. On September 12, 1994, the petitioner plead guilty and
was sentenced in the Court of Common Pleas of Dauphin County on the
following charges:
Driving under the influence;
simple possession of cocaine;
possession of paraphernalia;
Possession of a small amount of marijuana.
7. On October 20, 1994, the Department mailed notice of the
suspension to her for a period of one year for the violation of
3731 of the Vehicle Code (driving under the influence). A copy of
the letter of suspension is attached hereto and marked Exhibit A.
8. On October 31, 1994, the Department mailed petitioner:
a) a notice of suspension for a period of six months for her
conviction on September 12, 1994, of the possession of
a small amount of marijuana. A copy of the letter of
suspension is attached hereto and marked Exhibit B.
b) a notice of suspension for five years as a habitual
offender for her conviction on September 12, 1994, of
simple possession of cocaine. A copy of the letter of
suspension is attached hereto and marked Exhibit C.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
DCTOBER 31, 1994
CAMP HILL PA
L7011
9428S84L0003620 DOL
1O/24/L994
20479092
07/11/L964
JAN L SHAHAN
SOL SOUTH 32ND STREET
LICENSE IN BUREAU
Dear Motorist.
As a result of your conviction on 09/12/1994 of violating
Section 13A16 of' the Vehicle Code, POSSESSION OF CTRL SUB on
02/12/1994, you have been placed in habitual offender status
because this is your third major violation within a five year
period, Your driving privilege is being revoked for a period
of 5 YEAR(S) as mandated by Section l542D of the Vehicle
Code.
Effective Date of Su~pension. 03/12/1996, 12.01 a.m.
The above mentioned sanction is in addition to any pre-
viously issued sanction(s).
You will be notified of any outstanding restoration re-
quirp.ment~ ~ppr"~im~tpJY ~n rl~y~ hpforp ~hp pligihility rl~tp
of the restoration of your driving privilege. You must fol-
low those instructions very carefullY in order to have your
driving privilege restored.
You have the right to appeal to the Court of Common Pleas of
the county of your residence within 30 days of the mail date
(OCTOBER 31, 1994) of this notice. Sending a COpy to this
department of a timelY, filed appeal will stay the depart-
ment's action pending a final decision by the court. The
copy must be sent by certified mail tal
Room 103
Transportation and Safety Building
Harrisburg, PA 17120
L'Xh,bl+ ~