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HomeMy WebLinkAbout00-4961 civilDEAN L. BEAR, Appellant VS. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-4961 CIVIL CIVIL ACTION- LAW IN RE: APPEAL FROM LICENSE SUSPENSION ORDER AND NOW, this day of January, 2001, the appeal of Dean L. Bear from the suspension of his driver's license is DENIED. Jason Kutulakis, Esquire For the Appellant BY THE COURT, K Hess, J. George Kabusk, Esquire For PennDOT :rlm DEAN L. BEAR, Appellant VS. COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-4961 CIVIL CIVIL ACTION- LAW IN RE- APPEAL FROM LICENSE SUSPENSION OPINION AND ORDER This is an appeal from the action of the Pennsylvania Department of Transportation suspending the motorist's driver's license for two consecutive six-month periods. On January 11, 2000, Mr. Bear pled guilty to two counts of the unlawful delivery of a controlled substance. He was given concurrent sentences. On January 25, 2000, the Department of Transportation (the Department) notified him that his driving privilege was being suspended for a period of six months as a result of a conviction on a count of unlawful delivery. On June 13, 2000, Mr. Bear was notified that his driving privileges were being suspended for an additional six months as a result of a conviction on a second count. The two counts arose out of incidents which were ten days apart and arose out of drug buys that were initiated by the same confidential informant. The question in this case is whether the appellant should suffer multiple suspensions as a result of drug convictions arising out of what is, arguably, the same criminal episode. In Dept. of Transp., Bureau of Driver Licensing v. Perruso, 160 Cmwlth. 49, 634 A.2d 692 (1994), Perruso was arrested for possession of marijuana and possession of hallucinogenic mushrooms as a result of a traffic stop. He pled guilty to two counts of a violation of the Drug Act whereupon the Department attempted to suspend his license for two consecutive periods. The court concluded that the license suspension statute was an "enhancement statute" the purpose of which was to deter repeated conduct. Moreover, the court found that Perruso's O0-4961 CIVIL convictions resulted from a single criminal episode. Because there was, in essence, a single act and Perruso had no prior convictions, the imposition of a second suspension was deemed to be inappropriate. In Heisterkamp v. DOT, 165 Pa. Cmwlth. 128,644 A.2d 262 (1'994),~ Heisterkamp was arrested for forty-two counts of drug and theft charges. While employed as a district attorney in Dauphin County, she stole drugs from the evidence room multiple times over the course of approximately eight months. The Department forwarded twenty-three notices which would have resulted in the suspension of Heisterkamp's driving privileges for a period of thirty-nine years. In Heisterkamp, the court reaffirmed the notion that statutory provisions for more severe penalties for subsequent offenses are enhancement provisions and that the deterrent effect of an enhancement statute is not activated until after the first conviction. Only then, presumably, is the offender aware that further offending behavior will lead to more severe penalties. The court concluded: Relying on the holding in Perruso, we expanded our decision in Department of Transportation, Bureau of Driver Licensing v. Hardy, Department of Transportation, Bureau of Driver Licensing v. lancos, 160 Pa. Commonwealth Ct. 427, 635 A.2d 230 (1993). In Hardy, licensee Hardy was arrested on May 3, 1990, and charged with possession of cocaine in violation of Section 13(a)(16) of the Drug Act. Prior to a conviction, on March 12, 1991, he was again arrested and charged with possession of cocaine. Similarly, licensee Lancos was arrested and charged with possession of cocaine on January 16, 1991, and three days later was again arrested and charged with possession of cocaine. Neither Hardy nor Lancos had prior convictions under the Drug Act. Finding that both hardy and Lancos were only to have a 90 day license suspension imposed for a first offense, we Decided by a three-judge panel of Judges Pellegrini and Friedman and Senior Judge Lord. 2 O0-4961 CIVIL held that even when a licensee violates the Drug Act on different days, if the violations arise from one "episode," i.e., the same actions on different days, and the licensee has no prior convictions arising from a single criminal episode constitute a first offense under Section 13(m) of the Drug Act. Applying the reasoning and holdings of Perruso and Hardy to this case, we find that the appropriate penalty for Heisterkamp's conviction, albeit on 21 counts for violations over a seven-month period, was a suspension for 90 days for a first offense. She had no prior convictions under the Drug Act, and her repeated acts of taking cocaine from the evidence locker were the result of one continuous criminal scheme or one criminal "episode." Because Heisterkamp previously surrendered her license on November 30, 1992, and it was held by DOT until February 28, 1993, pursuant to the trial court's grant of a supersedeas effective until that date, her license was suspended for the requisite 90 day period for a first offense. Id., 644 A.2d at 266-67. If we apply Heisterkamp to the instant matter, it is clear that the motorist is entitled to relief. The inquiry, however, cannot yet be concluded. In Brosius v. Com., Dept. of Transp., Bureau of Driver Licensing, 664 A.2d 199 (Pa. Cmwlth. 1995),2 the court again dealt with a situation where a motorist had pled guilty at the same time to separate charges in violation of the Drug Act. In this case, the court cited language from the Supreme Court opinion in Com. v. Williams, 539 Pa. 249, 642 A.2d 283 (1994). In Williams, the Supreme Court said that the recidivist philosophy was only a tool in interpreting ambiguous statutory language as opposed to a constitutional principle or mandate. Quoting from Williams, the court in Brosius noted that "[I]f the legislature enacts a statute which clearly expresses a different application, the 'recidivist philosophy' possesses no authority which would 2 A three-judge panel consisting of Judges Doyle, Friedman and Senior Judge Narick. 3 00-4961 CIVIL override clearly contrary statutory language." Id.__:., at 201. The court in Brosius went on to say, in pertinent part' Subsequent decisions in Department of Transportation, Bureau of Driver Licensing v. Hardy, 160 Pa. Commonwealth Ct. 427, 635 A.2d 230 (1993) and Heisterkamp have expanded the concept of a "single act" which gives rise to a first offense, to include offenses which'involve identical factual scenarios perpetrated on different days, that result in multiple identical Drug Act convictions. These holdings were founded upon the conception that recidivist penalty statutes preclude the imposition of more than one penalty. However, as we are reminded by Williams, the "recidivist philosophy" is not to be exalted over the plain language of the statute. Thus, even though the enhancement effect of Section 13(m) may not be used to punish a second offense which is committed before conviction of the first offense, the language of the statute nevertheless requires the imposition of multiple suspensions. Therefore, we now hold that when a second offense is committed before the conviction occurs on the first offense, or the final judgment of conviction for multiple offenses occurs at the same time, and, the licensee does not have other extant drug convictions, all convictions will be deemed to be "first offenses" mandating separate and consecutive terms of suspension. Subsequently, in the case of Lauer v. Dept. of Transp., Bureau of Driver l.icensing, 666 A'2d 779, the court applied the holding in Brosius to a situation where the licensee sold cocaine to an undercover police officer on three separate occasions six days apart (a situation almost 00-4961 CIVIL identical to the matter sub judice). Consistent with its decision in Brosius, the court upheld three consecutive license suspensions for "first offenses." As he did in the Brosius case, Judge Friedman dissented taking the view that the licensee in that case had been involved in offenses which constituted a single criminal episode. Judge Friedman then opined that the result in the case should have been governed by Heisterkamp, "a case inexplicably ignored by the majority." It was because of the seeming inconsistency between Perruso/Heisterkamp and Brosius/Lauer that we set a hearing, in this case, for the purpose of determining whether the defendant was involved in a single criminal episode. We are satisfied that he was. We are also satisfied, however, that the most recent holdings of the Commonwealth Court require us to sustain the actions of the Department. Unlike previous opinions on this subject, the Lauer case was authored by seven judges of the Commonwealth Court with Judge Doyle, author of the majority opinion, speaking for five of its members. We believe that the Commonwealth Court has repudiated the application of the recidivist philosophy to license suspensions, at least as that philosophy was announced in Heisterkamp. ORDER AND NOW, this day of January, 2001, the appeal of Dean L. Bear from the suspension of his driver's license is DENIED. B Y THE COURT, Kev/A. Hess, J. 0O-4961 CIVIL Jason Kutulakis, Esquire For the Appellant George Kabusk, Esquire For PennDOT 'rlm