Commonwealth v. Rosenberger , 426 Pa. Super. 37 ( 1993 )

HUDOCK, Judge:

This is an appeal from the judgments of sentence imposed upon Appellant after he was convicted, in a de novo trial, of two counts of driving while under suspension, DUI-related.¹ Timely filed post-verdict motions were denied, and Appellant was sentenced to ninety days of incarceration and a $1,000 fine on each offense. These sentences were to run consecutively. A motion to modify sentence was denied as untimely, and a motion to reconsider that motion was denied. This direct appeal followed. We reverse.

At issue in the present appeal is whether Appellant can be convicted of violating section 1543(b) when a DUI-related suspension has expired, but, due to subsequent non-DUI-related suspensions, Appellant’s right to seek a license remained suspended. Under these circumstances, we find that section 1543(b) sanctions are unavailable.

The facts of this case are somewhat unique; while Appellant has a driving record containing a long list of violations, he has never been a licensed driver. Without discussing the entire driving record and violations, it is sufficient for present purposes to note that, due to a DUI conviction, Appellant’s right to apply for a driver’s license was suspended for one year, effective May 19, 1987, and ending May 19, 1988. Thereafter, Appellant did not seek to acquire a driver’s license. In 1989, Appellant received two more citations for licensing violations. These citations resulted in the suspension of Appellant’s right to apply for a driver’s license for an additional one-and-one-half years, effective February 22, 1990. Thereafter, Appellant’s right to apply for a driver’s license was suspended for five years, under the habitual offender provision, 75 Pa.C.S. § 1542, effective August 22, 1991. On August 13,1990, Appellant’s right to apply for a driver’s license was again suspended for an additional two years, pursuant to section 1542(e), effective August 22,1996. Finally, and at issue in the present case, are the two citations issued for section 1543(b) violations.

At issue is the proper interpretation of section 1543 of the Vehicle Code. This section reads, in pertinent part:

§ 1543. Driving while operating privilege is suspended or revoked

(a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S. § 1543(a) & (b) (Emphasis added). The trial court read these two subsections together and found that the language emphasized above in subsection (a) applied equally to subsection (b). Thus, the trial court reasoned that, because Appellant’s right to apply for a license has never been restored, the 1987 DUI-related suspension continues indefinitely. In support of this interpretation, the trial court cites Commonwealth v. McCrosson, 392 Pa.Super. 261, 572 A.2d 791 (1990), wherein a panel of this Court held that whether a non-DUI related suspension had expired was immaterial to a subsequent section 1543(a) conviction where the license had not yet been restored to the driver. The Commonwealth concurs with this reasoning.² Appellant counters that the subsections are two distinct provisions, that only subsection (a) was amended to include the “before the operating privilege has been restored” language, and, therefore, because the DUI-related suspension had expired and Appellant was serving a non-DUI related suspension at the time he was issued the two citations in the instant case, he can only be given section 1543(a) sanctions. Upon review, we find the reasoning of the trial court to be in error and its reliance on McCrosson to be misplaced.

In McCrosson, McCrosson was the driver of an automobile that was involved in an accident on August 5, 1988. While the accident was being investigated by the state police, McCrosson, upon request, was unable to produce a driver’s license. It was later discovered that her operating privileges had been revoked for a period of six months, effective May 19,1987, and had not been restored. McCrosson was then cited for a violation of section 1543(a). After conviction in a trial de novo, McCrosson appealed claiming that, because her prior suspension had expired, she could not have committed the violation charged. In rejecting this argument, a panel of this Court stated that, although this claim would be a valid argument under a reading of the former section 1543(a), the statute had been amended prior to the issuance of her citation to make it an offense to operate a vehicle at any time prior to the restoration of the driver’s operating privilege. Because there was no evidence that McCrosson’s privileges had been restored, this Court affirmed the judgment of sentence.

While our decision in McCrosson is supported by a plain reading of section 1543(a), the language of that subsection has no application to a section 1543(b) violation. Because section 1543(b) is penal in nature, it must be strictly construed. Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990) (citing Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978)). Thus, the trial court’s conclusion, “the same language of § 1543(a) applies with equal force to the facts of this case[,]” is in error. Trial Court Memorandum, 11/7/91 at p. 3. While Appellant’s right to seek a driver’s license remains suspended, case law supports a conclusion that Appellant is not subject to section 1543(b) penalties after the expiration of his DUI-related' suspension. Thus, as Appellant was issued citations while his right to apply for a driver’s license was suspended, non-DUI-related, he could only be convicted under section 1543(a).

In Commonwealth v. Taylor, supra, as a condition of his acceptance into an ARD program, Taylor’s license was suspended for a period of three months, effective June 4, 1987. Because Taylor had previously been convicted for other Vehicle Code violations, his license was suspended for five years pursuant to section 1542(a) of the Vehicle Code, effective September 4, 1987. On March 12, 1988, Appellant was stopped and charged with a violation of section 1543(b). In finding that Taylor could not be convicted of a section 1543(b) violation, a panel of this Court reasoned:

A brief logical sketch of the relevant law and facts of this case indicates that [Taylor] was wrongly convicted of violating 75 Pa.C.S.A. § 1543(b). First, it is conceded by the trial court, and is also readily apparent, that [Taylor’s] license was expressly suspended as a condition of acceptance of ARD, for violation of section 3731, the key phraseology under subsection (b), for a period of three months beginning on June 4, 1987____ [W]hen contemplated to some degree, it becomes equally clear that the suspension relevant to subsection (b) was for three months only and that the five year suspension handed [Taylor] was not a condition of acceptance of the ARD but merely a result of such acceptance, {plus the presence of two prior traffic convictions). Nothing in [Taylor’s] ARD program was conditioned upon such a suspension. Rather the five year suspension was issued because [Taylor’s] acceptance of ARD constituted a third traffic offense under the terms of the habitual offenders statute and was collateral to the ARD proceedings altogether.

It is further conceded that [Taylor] was not caught driving during the three months following June 4, 1987, the period which could reasonably be considered to be a suspension as a condition of acceptance of the ARD. Thus, it is really rather elementary that [Taylor] was not caught driving while under suspension as a condition of acceptance of ARD and therefore falls outside of the provisions of 75 Pa.C.S.A. § 1543(b), although as he was caught driving while under suspension, within the provisions of 75 Pa. C.S.A. § 1543(a).

Id. 390 Pa.Super. at 574-75, 568 A.2d at 1321-22 (emphasis in original).

In the present case, because of a violation of section 3731, Appellant’s right to apply for a driver’s license was suspended for one year, effective May 19, 1987. Between this time and May 19, 1988, the date this suspension expired, Appellant was not stopped for driving while under suspension. Indeed, Appellant’s driving record reveals that his next violation occurred on May 12, 1989, when he was cited under section 1501 (drivers must be licensed).³ Thus, according to the rationale of Taylor, Appellant was only exposed to section 1543(b) penalties during this time period. The trial court attempts to distinguish Taylor by stating that Appellant was not given the DUI-related suspension as a condition of ARD. We find this to be a distinction without a difference. As stated in Taylor:

All three of the suspensions listed in [section 1543(b) ] are directly tied to the violation of the DUI or DUI related offense in that they are penalties for the commission of the offense, or, alternatively, are handed down as part of a rehabilitative program.

Commonwealth v. Taylor, at 576, 568 A.2d at 1323. Because Appellant was stopped while he was under a non-DUI-related suspension, he cannot be convicted under section 1543(b).⁴

Judgments of sentence are vacated.⁵

TAMILIA, J., files a dissenting opinion.

1 . 75 Pa.C.S. § 1543(b). While the de novo trial focused on a citation issued on April 14, 1991, it appears that a citation issued on July 17, • 1990, was also before the court.

2 . The Commonwealth urged this construction of section 1543 at trial. In a brief argument in its appellate brief, the Commonwealth asserts that, by statutory construction and analogy to McCrosson, supra, "it is clear the Lower Court did not err and the Lower Court’s decision [should be] affirmed.” Commonwealth Brief at p. 2.

In an equally brief and cursory argument, the Commonwealth claims that Appellant did not acknowledge his DUI-related suspension with PennDot, and, according to 75 Pa.C.S. § 1541, he has received no credit toward that suspension. Thus, argues the Commonwealth, he was properly convicted of Section 1543(b) violations. This assertion was not made by the Commonwealth in the trial court, Appellant did not have the opportunity to counter this claim by presenting evidence to the contrary, and the trial court did not have the benefit of this assertion when considering its verdict. Under these circumstances, we decline to address this claim by the Commonwealth. See generally, Pa.R.A.P. 302(a). Finally, the dissent’s statement that the trial court relied on § 1541(a) in reaching its decision is unsupported by the record.

3 . Appellant’s driving record actually reflects a section 1543 violation occurring on November 6, 1989, and resulting in a conviction on December 11, 1989, and a suspension for one year. The previous section 1501 violation noted above occurred on May 12, 1989, but Appellant was not convicted until January 30, 1990.

4 . We note that the present facts are different from those presented in Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989), wherein a panel of this Court held that a defendant is properly convicted of a section 1543(b) violation when his or her driving record reflects a DUI-related suspension that has not begun to run because an earlier non-DUI-related suspension had yet to expire. Our holding is consistent with the statement in Nuno that a defendant would be subject to the penalties of section 1543(b) until the end of the DUI-related suspension or revocation. See also Commonwealth v. Ryan, 383 Pa.Super. 370, 556 A.2d 1377 (1989) (there is nothing in the law which provides a license suspension can be suspended to allow for the running of another license suspension and then recommenced; unrelated license suspensions are to run consecutively).

In light of our disposition of Appellant’s first issue, we need not address the remaining issue as to whether Appellant’s previous counsel was ineffective for failing to timely file a motion to modify sentence. Even if we were to address this issue we would find it to be meritless. Contrary to the statement by the dissent, Appellant's convictions arose from two separate incidents rather than a single incident. See, footnote 1, infra. The trial court clearly acted within its discretion by imposing consecutive sentences for the two separate incidents.

5 . We also note that, had Appellant been charged and convicted under section 1543(a), this would represent second or subsequent licensing violations, and Appellant could have been sentenced pursuant to 75 Pa.C.S. § 6503. Appellant can be sentenced under this section even though he was not charged with a Section 6503 violation. Commonwealth v. Soboleski, 421 Pa.Super. 311, 617 A.2d 1309 (1992). Pursuant to section 6503, Appellant could have been sentenced to pay a fine of not less than $200 nor more than $1,000, or imprisonment for no more than six months, or both.