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HomeMy WebLinkAbout93-0197 CivilPRESTON C. MILLER, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 197 CIVIL 1993 APPEAL FROM SUSPENSION OF LICENSE IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this ISA day of March, 1993, upon consideration of Appellant's Petition for Appeal from Department of Transportation Suspensions of Petitioner[']s Driver's License, and following a hearing, the Appeal is SUSTAINED, and the Orders suspending Appellant's operating privileges mailed December 21,1993, are REVERSED. BY THE COURT, J esley Oler, Jr. J. R. Mark Thomas, Esq. Attorney for Appellant Matthew Haeckler, Esq. Attorney for Pa. Dept. of Transportation rc PRESTON C. MILLER, Petitioner V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, NO. 197 CIVIL 1993 Respondent APPEAL FROM LICENSE IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. SUSPENSION OF This case is a license suspension appeal based upon lack of notice to Appellant that one of the consequences of his guilty pleas to two drug offenses would be suspension of his operating privilege. A hearing was held on the appeal on Monday, March 8, 1993. Based upon the evidence submitted at the hearing, the following Findings of Fact, Discussion, and Order of Court are made and entered: FINDINGS OF FACT 1. Appellant/Petitioner is Preston C. Miller, an adult individual and presently an inmate at the Cumberland County Prison. 2. Appellee/Respondent is the Commonwealth of Pennsylvania, Department of Transportation. 3. On Tuesday, June 2, 1992, Appellant pled guilty in the Court of Common Pleas of Cumberland County at No. 2290 Criminal 1991 and No. 596 Criminal 1992 to charges of unlawful delivery, manufacture or possession with intent to deliver a Schedule II controlled substance (cocaine). 4. On November 24, 1992, Appellant was sentenced to prison as a result of the 197 Civil 1993 guilty pleas. 5. Appellant was not told at the time of his guilty pleas or sentencing that a consequence of conviction would be suspension of his operating privilege, nor did he learn of such a consequence until after commencement of service of the sentence. 6. By Orders mailed December 21, 1992, Appellee imposed 90 -day and one-year suspensions of Appellant's operating privileges, as provided for in Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act. 7. From the said Orders of suspension, Appellant has appealed. DISCUSSION The issue of whether a suspension of one's operating privilege pursuant to Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act' as a result of a guilty plea and sentence with respect to a certain type of offense under the act is valid, where the licensee was not made aware of such a consequence at the plea or sentencing, and was otherwise ignorant thereof, was resolved in favor of the licensee by the Honorable Kevin A. Hess of this Court in Nickey v. Department of Transportation, Commonwealth of Pennsylvania, No. 1029 Civil 1992 (slip op. October 19, 1992). With respect to a decision by another judge of the same common pleas court, °[i]t is well-settled that, absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of ' Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(m) (1992 Supp.). 2 197 Civil 1993 facts." Yudacufski v. Commonwealth of Pennsylvania, Department of Transportation, 499 Pa. 605, 612, 454 A.2d 923, 926 (1986). There being no such countervailing circumstances in this case, the opinion of Judge Hess in Nickey is adopted in pertinent part herein: "[The] suspensions [in this case] have been imposed pursuant to 35 P.S. 780- 113(m), which provides as follows: (m) Notwithstanding any other provision in this act, any person, not a registrant, who possesses, sells, delivers, offers for sale, holds for sale or gives away any controlled substance, in addition to any other penalty provided in this or any act, upon conviction for a violation of this act, shall have his or her operating privilege suspended. The clerk of any court of this Commonwealth, within ten days after final judgment of conviction for violations of this act requiring suspension under this section, shall send to the Department of Transportation a record of the conviction on a form provided by the Department of Transportation. When the Department of Transportation suspends the operating privilege of a person under this subsection, the duration of the suspension shall be as follows: (1) For a first offense, a period of ninety days from the date of suspension. (2) For a second offense, a period of one year from the date of suspension. (3) For a third offense, and any offense thereafter, a period of two years from the date of suspension. Any multiple suspensions imposed shall be served consecutively. "In Duffey v. Dept. of Transp., [_ Pa. _, 607 A.2d 815 (1992)], the appellant had been cited for underage drinking, 18 Pa. C.S.A. 6308(a). His plea of guilty had been 3 197 Civil 1993 entered on June 12, 1990. Some fifteen days later, a district justice certified Duffey's conviction to the Department of Transportation and signed an order directing the department to suspend Duffey's operating privileges in accordance with Section 6310.4 of the Crimes Code. By notice dated July 24, 1990, PennDOT notified Duffey that his driving privileges would be suspended for a period of ninety days. An appeal was filed from this suspension wherein Duffey contended that his license suspension was improper because the suspension pursuant to Section 6310.4 was a penalty that had not been explained to him before his plea of guilty. The court, thus, was confronted with a claim that the license suspension pursuant to Section 6310.4 for conviction of various underage drinking offenses was not a collateral civil consequence of that conviction but rather part of the criminal penalty itself. "After considerable discussion, the Commonwealth Court concluded, in Duffey, that a license suspension under Section 6310.4 of the Crimes Code is not properly characterized as a collateral civil consequence of a criminal conviction but rather is part of the sentence. This conclusion was reached, in part, because the license suspension pursuant to Section 6310.4 is not the act of an administrative agency over which the judge and the criminal court has no control but, rather, results from the order of a judge or district justice to suspend the license pursuant to the conviction. "There is, of course, in 35 P.S. 780-113(m) no provision directing suspension of the defendant's license by court order. Rather, the Clerk of Courts, within ten days El 197 Civil 1993 after final judgment of conviction, sends to the Department of Transportation a record of the conviction on a form provided by the Department of Transportation. PennDOT argues that, because it is a notice of a record of a drug conviction which triggers the suspension rather than an order of court, Duffey has no application to this case. Thus, according to PennDOT, we are bound to follow the general rule that a license suspension is a collateral civil consequence and that there is no requirement that the defendant be informed of this potential collateral consequence at the time of his plea. "We note, however, that in the cases cited by PennDOT, none of the guilty pleas were to offenses other than vehicle code violations. Suspension for vehicle code violations are, of course, generally triggered when notice of conviction is forwarded to DOT by agents of the court or minor judiciary. The Department of Transportation contends, in the instant case, that because the same notice procedure is followed in drug cases as in motor vehicle code cases, the suspension of the violator's license is a civil collateral consequence and not a penalty imposed by the court. This contention misses the fundamental point made in Duffey. "At the heart of the decision in the Duffey case, we believe, is the court's appreciation of the imposition of a license suspension where the underlying offense is for a violation of the law other than the vehicle code. Citing from the Legislative Journal of the House of Representatives, the Duffey court concluded that the House debate indicated that the legislature intended to mandate `a license suspension as the 5 197 Civil 1993 direct penalty for certain alcohol related offenses, regardless of whether a vehicle was involved.' Duffey, supra, 607 A.2d at 818. The intention of the legislature to mandate license suspension as a direct penalty is equally clear in this case where the suspension results from certain drug related offenses, which do not require, as an element, the operation of a motor vehicle. "We are dealing with a case where the potential suspensions of the petitioner's driver's license will exceed [a year]. As we have already noted, this suspension results from violations of the drug law having nothing to do with the defendant's operation of a motor vehicle. With the exception that the suspension of the driver's license for underage drinking takes the form of an `order' on a PennDOT form and in the case of a violation of a drug law a `record of the conviction' on a PennDOT form, we see no reason why the basic principles in Duffey should not apply equally to drug cases as to underage drinking cases. In these regards, the Duffey court noted, in pertinent part: The defendant, maintaining that his loss of license is a direct criminal penalty, appealed to Superior Court, which has jurisdiction over appeals from most criminal convictions, see Section 742 of the Judicial Code, 42 Pa. C.S. Section 742, but Superior Court transferred the case to this court because it involves a civil license suspension appeal. If this court were to reject the defendant's claims on the grounds of collateral attack and inform him that his only remedy is to seek allowance of appeal nunc pro tunc from the court of common pleas, we would be endorsing the extraordinary result that a criminal defendant's right to appeal his conviction and sentence may be exercised only by way of a possible appeal nunc pro tunc, perhaps months after the original conviction. 197 Civil 1993 Acknowledging and giving effect to the legislative intent eliminates all of these problems. The guilty plea, even to a charge of a summary offense initiated by the issuance of a citation, must be made `voluntarily and understandingly.' Pa. R. Crim. P. 59. For that to be the case, all of the direct penalties must be explained on the citation form or by the court before whom the defendant appears, not merely the possible monetary penalty. Commonwealth v. Leonhart, 358 Pa. Superior Ct. 494, 517 A.2d 1342 (1986), petition for allowance of appeal denied, 515 Pa. 620, 531 A.2d 428 (1987); Commonwealth v. Reagan, 348 Pa. Superior Ct. 589, 502 A.2d 702 (1985). Upon the defendant's conviction, following a plea of guilty or a trial, the court or district justice must impose the mandatory sentence and order suspension of the defendant's license, but the court may not omit notice to the defendant of the sentence.... ... When the district justice accepted Duffey's guilty plea to the criminal offense of underage possession of alcoholic beverages, without first informing him of the mandatory criminal penalty of license suspension, that was a violation of his right to due process, which, at a minimum, invalidates the plea. Also, the imposition of the criminal penalty of license suspension without notice of the sentence and the failure to advise of any right to appeal the criminal conviction pursuant to Pa. R. Crim. P. 86 constitute further violations of due process. These violations render the sentence of license suspension imposed upon Duffey invalid, and they warrant the sustaining of his appeal. The principle that we must recognize is that a license suspension imposed pursuant to 18 Pa. C.S. Section 6310.4 is the mandatory criminal sentence upon conviction of underage drinking, and a defendant must be afforded all normal criminal procedural protections in relation to that sentence, including notice that suspension will result before a plea of guilty may be valid, notice at the time of conviction and sentencing that a suspension will be imposed and notice to the defendant of his right to appeal from the conviction 7 197 Civil 1993 and sentence pursuant to the Rules of Criminal Procedure. (emphasis supplied) Id. at _, 607 A.2d at 820-21. "The defendant in this case was not involved in the comparatively minor summary offense of underage drinking or possession of alcohol. His were pleas of guilty to serious felonies. The Rules of Criminal Procedure, with respect to the acceptance of guilty pleas, are the same, however, for court cases as for summary cases insofar as they require the judge to ascertain that a plea is `voluntarily and understandingly' tendered. Pa. R. Crim. P. 319. Obviously, an understanding of potential consequences of the plea is no less important in felony cases than in summary matters." Commonwealth v. Nickey, No. 1029 Civil 1992 (slip op. October 19, 1992). Based upon the reasoning and holding of Judge Hess in Commonwealth v. Nickey, supra, the following Order will be entered: ORDER OF COURT AND NOW, this i-'10- day of March, 1993, upon consideration of appellant's Petition for Appeal from Department of Transportation Suspensions of Petitioner[']s Driver's License, and following a hearing, the Appeal is SUSTAINED, and the Orders 197 Civil 1993 suspending Appellant's operating privileges mailed December 21,1993, are REVERSED. R. Mark Thomas, Esq. Attorney for Appellant Matthew Haeckler, Esq. Attorney for Pa. Dept. of Transportation :rc BY THE COURT, J. Wesley Oler, Ji. J. 41