Duffey v. Dept. of Transp.
Duffey v. Dept. of Transp.
Opinion of the Court
Ian M. Duffey appeals from an order of the Court of Common Pleas of Allegheny County that dismissed his appeal of a ninety-day suspension of his operating privileges imposed by the Department of Transportation (DOT). On June 7, 1990, Duffey, then age twenty, was cited for “purchase, consumption, possession or transportation of liquor or malt beverages” in violation of Section 6308(a) of the Crimes Code, 18 Pa.C.S. § 6308(a).
Duffey filed a statutory appeal of the suspension with the Court of Common Pleas of Allegheny County (common pleas court). A hearing was held, at which Duffey, represented by a public defender, filed a motion to withdraw his plea of guilty to the Section 6308 charge. He asserted that, because he was not informed before pleading guilty that he would be subject to a mandatory suspension of his operating privileges, his plea was invalid. The common pleas court dismissed Duffey’s appeal on the basis that the challenge constituted a collateral attack on the criminal conviction, and it could not be raised in the context of a challenge to the license suspension. Duffey filed a notice of appeal in Superior Court. DOT filed a motion to transfer the appeal to Commonwealth Court, and, by order dated May 7, 1991, the Superior Court granted the motion.
On appeal, Duffey contends that his license suspension is an illegal criminal sentence because the suspension pursuant to Section 6310.4 is a criminal penalty that must be explained to the defendant before he pleads guilty and must be imposed by the court at sentencing.
Section 6310.4 is found in the Crimes Code, Title 18 of the Pennsylvania Consolidated Statutes.
Section 762 of the Judicial Code, 42 Pa.C.S. § 762, establishes the jurisdiction of this court over appeals from the courts of common pleas and provides in part:
(a) General rule. — [T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(2) Governmental and Commonwealth regulatory criminal cases. — All criminal actions or proceedings for the violation of any:
(ii) Regulatory statute administered by any Commonwealth agency subject to Subchapter A of Chapter 5 of Title 2 (relating to practice and procedure of Commonwealth agencies). The term ‘regulatory statute’ as used in this subparagraph does not include any provision of Title 18 (relating to crimes and and offenses. (Emphasis added.)
We recognize this court’s appellate jurisdiction involving criminal offenses defined in regulatory statutes such as The Clean Streams Law,
Section 6310.4 mandates that a driver’s license suspension be imposed on anyone under the age of twenty-one who misrepresents his age to secure alcoholic beverages (Section 6307), purchases, consumes, possesses or transports such beverages (Section 6308) or carries a false identification card (Section 6310.3). Of those offenses, only the transporting of alcoholic beverages involves conduct that might involve a motor vehicle — all of the other offenses do not. Section 6308, under which licensee Duffey was charged, provides in subsection (b):
Penalty. — In addition to the penalty imposed pursuant to section 6310.4 (relating to restriction of operating privileges), a person convicted of violating subsection (a) may be sentenced to pay a fine of not more than $500 for the second and each subsequent violation. (Emphasis added.)
Sections 6307 and 6310.3 contain similar language indicating that license suspension is the “penalty imposed pursuant to section 6310.4____” By the plain language of these provisions, the license suspension under § 6310.4 is a criminal “penalty” the same as a monetary fine.
Further, Section 6310.4 specifies that the court shall order the suspension, not DOT. Although DOT performs the act of suspending the license, the court orders the suspension as the result of conviction of an enumerated offense, whether or not the offense is related to the operation of a motor vehicle. These provisions indicate that the legislature intended a license suspension to be the direct consequence (i.e., the criminal penalty itself) of a conviction of an enumerated offense, rather than a collateral effect.
In Department of Transportation, Bureau of Driver Licensing v. Suny, 134 Pa.Commonwealth Ct. 651, 579 A.2d 1027 (1990), this court considered the question of whether a license suspension under Section 6310.4 is valid when a district justice does not inform a motorist that acceptance into a preadjudication program for violating under-age alcohol provisions of the Crimes Code will result in a license suspension. Prior to Suny, in Brewster v. Department of
In Brewster the licensee accumulated three convictions for vehicle-related offenses enumerated in Section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542, relating to habitual offenders, and DOT revoked his license for five years under the provisions of that section. One of the licensee’s offenses had been disposed of by his participation in an ARD program. The licensee contended that he had been deprived of due process because he was not informed when he made the decision to accept the ARD program that it would count as an offense for purposes of the habitual offender statute if he later were convicted of additional offenses. This court rejected the licensee’s argument, noting that the ARD program is part of the parallel criminal proceeding, Pa. R.Crim.P. 175 through 185, but a license revocation is a civil proceeding. We stated that a license suspension “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 had no responsibility.” Brewster, 94 Pa.Commonwealth Ct. at 280, 503 A.2d at 498. We noted that courts consistently have held that a trial court’s failure to inform a criminal defendant of potential collateral consequences does not invalidate a guilty plea, and we concluded that the same principle should apply to acceptance by a defendant of an ARD program. Id., 94 Pa.Commonwealth Ct. at 280-81, 503 A.2d at 498. See Commonwealth v. Wellington, 305 Pa.Superior Ct. 24, 451 A.2d 223 (1982) (A resident alien’s plea of guilty to a charge
As the express terms of Sections 6308 and 6310.4 and the legislative history illustrate, a license suspension under Section 6310.4 is not the act of an administrative agency over which the judge in the criminal court has no control and for which he or she has no responsibility. Rather, under this section the judge or district justice orders DOT to suspend the license (for conviction of a crime that may be wholly unrelated to the Vehicle Code), and DOT must comply with the order by suspending the license. There is no independent exercise by DOT of its administrative powers. This procedure is unique and is unlike any suspension provided for in the Vehicle Code. Therefore, unlike the situation presented in Brewster, a license suspension under Section 6310.4 may not properly be characterized as a collateral civil consequence of the criminal conviction, and the analogy to Brewster upon which we relied in Suny was incorrect. There has never been any “civil” aspect to this case.
Section 762(a)(3) of the Judicial Code, 42 Pa.C.S. § 762(a)(3), provides for secondary review by this court over appeals from Commonwealth agencies that may be taken initially to the courts of common pleas under Section 933 of the Judicial Code, 42 Pa.C.S. § 933. That section establishes jurisdiction in the courts of common pleas over appeals from final orders of Commonwealth agencies in cases including “[determinations of the Department of Transpor
Duffey’s circumstances illustrate the through-the-looking-glass procedural effects of failing to acknowledge the plain intent of the legislature to make the license suspension the direct criminal penalty for underage drinking offenses. Here, the criminal defendant was offered the opportunity to plead guilty, but he was not informed that the statute mandates a license suspension. This may occur even where a defendant appears before a court or district justice rather than simply pleading guilty on a citation form. See Suny, noted above.
Upon Duffey’s conviction, the district justice ordered that the defendant’s license be suspended, but that order was sent to DOT, not to the defendant, who therefore had no reason to file an appeal. After the appeal period for the criminal conviction ran the defendant eventually learned from DOT, for the first time, that his license was to be suspended. The defendant employed the standard method of appealing a license suspension, a statutory appeal pursuant to 75 Pa.C.S. § 1550. In that proceeding he moved to withdraw his guilty plea nunc pro tunc on the grounds that it was uninformed, only to be told that the court lacked jurisdiction to entertain such a motion “collaterally attacking” the criminal conviction in the “civil” license suspension proceeding. This procedure was not unusual and in fact appears to be the standard method of operation in this kind of case.
The defendant, maintaining that his loss of license is a direct criminal penalty, appealed to Superior Court, which
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 understanding^.” 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. Compare Pa.R.Crim.P. 84(d), relating to trial in the defendant’s absence in summary cases: “If the defendant is found guilty, the issuing authority shall impose sentence, and shall notify the defendant of the conviction and sentence by first class mail.”
The exclusive means for appealing from a summary conviction is provided by Pa.R.Crim.P. 86, which provides in part: “(a) [A]n appeal shall be perfected by filing a notice of appeal within thirty (30) days after the conviction or other final order from which the appeal is taken.” With notice of
Although we believe this matter should have remained with the Superior Court, the actions of the parties have perfected appellate jurisdiction in our court. See Pa.R.A.P. 741(a) (jurisdiction in an appellate court perfected if the appellee fails timely to object, unless the court orders otherwise, notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court). 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. § 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 and sentence pursuant to the Rules of Criminal Procedure. We must overrule our prior decisions in Suny and Heeter
ORDER
AND NOW, this 13th day of April, 1992, the order of the Court of Common Pleas of Allegheny County at No. SA 2475-90, dated November 21, 1990, is reversed, and the appeal of Ian M. Duffey from his driver’s license suspension is sustained.
. Section 6308(a) provides:
A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages____
. Section 6310.4, entitled "Restriction of operating privileges,” provides in pertinent part:
(a) General rule. — Whenever a person is convicted or is adjudicated delinquent or is admitted to any preadjudication program for a violation of section 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3 (relating to carrying a false identification card), the court, including a court not of record if it is exercising jurisdiction pursuant to 42 Pa.C.S. § 1515(a) (relating to*283 jurisdiction and venue), shall order the operating privilege of the person suspended. A copy of the order shall be transmitted to the Department of Transportation.
(b) Duration of suspension. — When the department suspends the operating privilege of a person under subsection (a), the duration of the suspension shall be as follows:
(1) For a first offense, a period of 90 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 sentences imposed shall be served consecutively.
. Duffey also argues that the suspension was an illegal sentence because it was not imposed by a court order but rather by DOT. By a previous ruling on a motion to suppress filed by Duffey, we have held that the record includes a copy of a completed DOT Form DL-21C(5-88), entitled “Report of a Court Ordering the Suspension of Operating Privileges as the Result of a Violation of Chapter 63 of Title 18.” On that form “18 Pa.C.S. § 6308” is checked as the violation committed
AND NOW, HAVING MADE THE ABOVE RECORDED DISPOSITION, IN ACCORDANCE WITH THE MANDATORY PROVISIONS OF 18 PA.C.S. § 6310.4(a), THIS COURT ORDERS THAT THE OPERATING PRIVILEGE OF THIS PERSON BE SUSPENDED. A COPY OF THIS ORDER IS TO BE FORWARDED TO THE DEPARTMENT OF TRANSPORTATION IN ORDER THAT THE SUSPENSION CAN BE RECORDED IN ACCORDANCE WITH THE PROVISIONS OF 18 PA.C.S. § 6310.4(b).
Supplemental Reproduced Record at 3b. However, a copy of this document was not sent to Duffey.
. 75 Pa.C.S. §§ 101-9910.
. The legislature enacted § 6310.4 in the Act of March 25, 1988, P.L. 262, which is titled in part, "An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes ... further providing for offenses relating to alcohol."
. Act of June 22, 1937, P.L.1987, as amended, 35 P.S. §§ 691.1 through 691.1001.
. In the portion of DOTs brief containing the argument that it complied with applicable law, DOT emphasizes that the court ordered the suspension and DOT, upon receipt of a copy of the order, imposed
. As a general rule, the remarks of individual legislators in debate on the floor of the House or the Senate may not be relied upon in ascertaining legislative intent because they represent only one person’s view and not that of a proposing body or an enacting body. Zemprelli v. Thornburgh, 47 Pa.Commonwealth Ct. 43, 58, 407 A.2d 102, 109 (1979); Nemacolin, Inc. v. Department of Environmental Resources, 115 Pa.Commonwealth Ct. 462, 541 A.2d 811 (1988). However, the vote of the entire House on a challenge to the constitutionality of a bill represents a formal proceeding of the entire body that is different from the remarks of an individual in the course of debate.
Concurring Opinion
concurring.
I concur with the majority’s reversal of the license suspension, but disagree with its reasoning that this is an appeal from the illegal imposition of a penalty in a criminal case properly appealable to the Superior Court. Because this is a statutory appeal of an administrative action of the Pennsylvania Department of Transportation’s (PennDot) suspension of a driver’s license, this appeal is properly before this court.
The facts that underlie this appeal are as follows: Ian M. Duffey (Duffey), then age 20, was charged by the Commonwealth under Section 6308(a) of the Crimes Code, 18 Pa.C.S. § 6308(a), with underage drinking. When charged, he received a non-traffic citation which, in accordance with the instructions contained on the reverse side, allowed him to plead guilty by mailing in the fine and costs specified to the magistrate. Pursuant to those instructions, Duffey pled guilty by signing in the space provided on the citation, and, together with a check for the fine and costs, mailed it back
Unbeknownst to Duffey, the district justice then completed PennDot Form DL-21C (5-88) titled “Report of Court Ordering the Suspension of Operating Privileges As a Result of a Violation of Chapter 63 of Title 18” .
While PennDot argues that the impropriety of the additional penalty must be raised in the criminal conviction which has nothing to do with the license suspension proceeding, the mandatory order upon which it relies is contained on a PennDot Form Report which PennDot provides to district justices, and which, for all intents and purposes, initiates the license suspension proceeding. PennDot, a stranger to the criminal action, initiated, caused and is responsible for the issuance of the order, thereby depriving Duffey the “bargain” the Commonwealth offered through the guilty plea procedure as authorized by Pa.R.Crim.Pro. 59. For all practical purposes, the order in question was not part of the criminal proceeding between Duffey and the Commonwealth, but part of PennDot’s license suspension proceeding.
Separate and apart from the violation of Duffey’s due process rights by modifying the penalty without notifying him that such a penalty could be imposed and not notifying him at any relevant time that such an order was issued, the district justice had no jurisdiction to increase the penalty once the guilty plea was accepted, imposing only a fine and costs. When a district justice accepts a guilty plea and sentence is imposed as prescribed in the Rules of Criminal Procedure, he or she is also divested of any authority to impose any additional penalty and any such imposition is a nullity. Because it is a nullity, then no valid order exists imposing a penalty suspending Duffey’s license, and because such a requirement is necessary to meet the statutory mandates contained in Section 6308 of the Crimes Code, Duffey’s appeal must be sustained.
. The procedure to plead guilty in summary cases is set forth in Rule 59 of the Pa.R.Crim.Pro.
. Footnote 2 appears on page 295.
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Dissenting Opinion
dissenting.
The principle that a licensee may not collaterally attack an underlying criminal conviction in civil license suspension proceedings has been firmly established. To conclude, as the Majority does, that this principle is inapplicable to the factual scenario presented in the case sub judice misapprehends that appeals from a license suspension are civil in nature. Department of Transportation, Bureau of Traffic Safety v. Calloway, 60 Pa.Commonwealth Ct. 647, 432 A.2d 322 (1981). Moreover, accepting as legally accurate the premise that the license suspension imposed against Duffey represented the criminal penalty itself, the significance of the collateral attack rule becomes even more paramount. Where a licensee wishes to challenge his or her criminal conviction, the remedy is to seek allowance of an appeal nunc pro tunc. See Department of Transportation, Bureau of Driver Licensing v. Weniger, 136 Pa. Commonwealth Ct. 603, 584 A.2d 394 (1990); Commonwealth v. Liptak, 392 Pa.Superior Ct. 468, 573 A.2d 559 (1990); and Commonwealth v. Bassion, 390 Pa.Superior Ct. 564, 568 A.2d 1316 (1990).
In a recent Supreme Court decision, Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990), the Court stated that it is improper in a collateral civil proceeding for an appellant to “impugn the validity of the criminal conviction,” citing Johnson v. Commonwealth, 68 Pa.Commonwealth Ct. 384, 449 A.2d 121 (1982). In addition, the Supreme Court stated that “allegations by appellant [a minor] that he did not know that by paying a fine to a magistrate that he was pleading guilty to the offense and that he was not knowledgeable about the legal ramifications of pleading guilty are not within the proper realm of this proceeding.” Id. 526 Pa. at 11-12, 584 A.2d at 294.
A litany of cases decided by this Court reiterate the “no collateral attack” rule in civil proceedings challenging a license suspension. See Department of Transportation, Bureau of Driver Licensing v. Heeter, 128 Pa.Commonwealth Ct. 480, 563 A.2d 993 (1989); Radice v. Department
Reference
- Full Case Name
- Ian M. DUFFEY, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee
- Cited By
- 16 cases
- Status
- Published