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Home My WebLink About94-0572 CivilCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : JAMES W. MORAN, III : 94-0572 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J~. ORDER OF COURT AND NOW, this 2~day of April, 1994, upon consideration of Petitioner's license suspension appeal and following a hearing, for the reasons stated in the accompanying Opinion, the appeal is SUSTAINED to the extent that Respondent imposed a consecutive suspension of enhanced duration, and is otherwise DENIED· BY THE COURT, Wesley 'Ole~ Jr., J. James w. Moran, III 1101 Claremont Road Carlisle, PA 17013 Petitioner, Pro Se Terri Cianci, Esq. Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorneys for the Commonwealth : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : JAMES W. MORAN, II : 94-0572 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present case is a pro se appeal by James W. Moran (Petitioner) from a license suspension by the Department of Transportation (Respondent).~ A hearing on the appeal was held before the undersigned judge on Monday, March 21, 1994; the record was supplemented, in accordance with an Order entered at the conclusion of the hearing, with the transcripts of a guilty plea and a sentencing proceeding involving Petitioner.2 For the reasons stated in this Opinion, the appeal will be sustained in part and denied in part. Statement of Facts On October 26, 1993, Petitioner entered guilty pleas to two felonies in the form of unlawful deliveries of controlled substances (marijuana; LSD),3 arising out of a sale occurring on August 25, 1992. He received concurrent sentences of 11½ to 23 ~ Such appeals are provided for by the Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. §1550 (1993 Supp.). ~ See Order of Court dated April 22, 1994. 3 See Act of April 14, 1972, P.L. 233, 13(a)(30), as amended, 35 P.S. 780-113(a)(30). 94-0572 CIVIL TERM months on November 30, 1993. By notices dated December 21, 1993, Respondent suspended Petitioner's driving privileges for six months and for an additional year, as a result of the convictions. Its actions were pursuant to Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act, providing for suspensions of such durations in the cases of first and second drug delivery offenses, inter alia.4 The guilty plea and sentencing transcripts indicate that Petitioner was not advised by the Court that a license suspension would be a consequence of his convictions. There is no indication in either proceeding that a vehicle was involved in the unlawful activity. The drug offenses occurred in the same incident. Petitioner's appeal from the license suspension appears to be based upon contentions that (1) the suspensions are invalid because he was not advised by the Court of such a consequence when he pled guilty, (2) the suspensions are invalid because a vehicle was not involved in the crimes, and (3) "both suspensions should be first offense," since the underlying crimes occurred in the same incident,s 4 Act of April 14, 1972, P.L. 233, §13(m), as amended, 35 P.S. §780-113(m) (1993 Supp.), repealed, Act of June 28, 1993, P.L. , No. 33, §7(a) (Purdon's Pa. Leg. Serv., No. 2, 1993), substantially reenacted, Act of June 28, 1993, P.L. , No. 33, §3, 75 Pa. C.S. S1532(c) (Purdon's Pa. Leg. Serv., No. 2, 1993); see Act of June 28, 1993, P.L. __, No. 33, §8 (Purdon's Pa. Leg. Serv., No. 2, 1993) (savings clause). s Petitioner's "Petition for Allowance of Appeal." 2 94-0572 CIVIL TERM Discussion Notice of plea consequences. The proposition that a license suspension predicated upon a guilty plea and sentence for a drug offense may be invalidated where such a consequence was not made known to the defendant has met with judicial favor. See, e.g., Commonwealth of Pennsylvania, Department of Transportation v. Ahlborn, 156 Pa. Commw. 196, 626 A.2d 1265 (1993). The proposition is based upon the premise that a license suspension is a direct criminal penalty for the offense. Id. at 205-06, 626 A.2d at 1271; see Duffey v. Department of Transportation, Bureau of Driver Licensing, 147 Pa. Commw. 280, 607 A.2d 815 (1992) (case involving suspension resulting from plea to underage drinking).6 It now appears, however, that the Pennsylvania Supreme Court does not accept this premise. See Commonwealth v. Duffey, Pa. , A.2d (April 8, 1994), rev'g sub nom. Duffey v. Department of Transportation, Bureau of Driver Licensing, 147 Pa. Commw. 280, 607 A.2d 815 (1992). For this reason, relief can not be afforded to Petitioner on this ground. Suspension predicated upon vehicle involvement in felony. U~der Section 1532(a)(1) of the Vehicle Code, the Department of Transportation is to "revoke the operating privilege of any driver for one year upon receiving a certified record of the driver's ~ Rev'd sub nom. Commonwealth v. Duffey, Pa. , , __ A.2d (April 8, 1994). 3 94-0572 CIVIL TERM conviction of ... [a]ny felony in the commission of which a court determines that a vehicle was essentially involved."7 This basis for suspension of a license is discussed in Southerland v. Commonwealth of Pennsylvania, Department of Transportation, 127 Pa. Commw. 349, 561 A.2d 1276 (1989), which Petitioner cites in his appeal petition. However, since the Department's suspensions in the present case were not based upon this statutory provision, the fact that its applicability might be dubious is not helpful to Petitioner. Application of suspension enhancement provision in case of same-incident offenses. In Commonwealth v. Perruso, Pa. Commw. · 634 A.2d 692 (1993), the Commonwealth Court considered the question of whether the enhancement provision of Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act was intended to apply in the context of two same-incident drug offenses. In holding that it was not, the Court stated that until an offender has been convicted, the deterrent effect of an enhancement statute is not activated because only after the first conviction is the offender aware that further offending behavior will lead to more severe penalties .... [A] person must have a prior "conviction" in order to be subject to the enhancement provisions. Id. at , 634 A.2d at 695. For this reason, the consecutive, enhanced period of suspension imposed by Respondent upon Petitioner 7 Act of June 17, 1976, P.L. 162, 21, as amended, 75 Pa. C.S. 1532(a)(1) (1993 Supp.). 4 94-0572 CIVIL TERM was not warranted.8 ORDER OF COURT AND NOW, this ~day of April, 1994, upon consideration of Petitioner's license suspension appeal and following a hearing, for the reasons stated in the accompanying Opinion, the appeal is SUSTAINED to the extent that Respondent imposed a consecutive suspension of enhanced duration, and is otherwise DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. James W. Moran, III 1101 Claremont Road Carlisle, PA 17013 Petitioner, Pro Se Terri Cianci, Esq. Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorneys for the Commonwealth 8 In Perruso, the Commonwealth Court affirmed a lower court's limitation of the suspension period for two same-incident drug possession offenses to that provided for a first offense. 5