Trybend v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 110819 PACCA, 34 C.D. 2019

Docket Nº:34 C.D. 2019
Opinion Judge:P. KEVIN BROBSON, JUDGE
Party Name:Daniel R. Trybend, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
Case Date:November 08, 2019
Court:Commonwealth Court of Pennsylvania
 
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Daniel R. Trybend, Appellant

v.

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

No. 34 C.D. 2019

Commonwealth Court of Pennsylvania

November 8, 2019

OPINION NOT REPORTED

Submitted: July 12, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

MEMORANDUM OPINION

P. KEVIN BROBSON, JUDGE

Appellant Daniel R. Trybend (Trybend) appeals from an order of the Court of Common Pleas of Washington County (trial court), dated December 10, 2018. The trial court dismissed Trybend's statutory appeal from the six-month suspension of his operating privilege imposed pursuant to former Section 1532(c) of the Vehicle Code, 75 Pa. C.S. § 1532(c) (pertaining to suspension of operating privilege).1 We affirm the trial court's order.

I. BACKGROUND

By notice dated March 28, 2018, the Department of Transportation, Bureau of Driver Licensing (Department), informed Trybend that it had suspended his driving privilege for a period of six months as a result of his March 16, 2018 conviction for violating Section 13(a)(30) of the Drug Act, 35 P.S. § 780-113(a)(30).2 (Reproduced Record (R.R.) at RR004.) Trybend timely appealed the Department's notice to the trial court, asserting that he had not been convicted of a violation of Section 13(a)(30) of the Drug Act, and, therefore, the Department erroneously suspended his license.

On November 7, 2018, the trial court conducted a de novo hearing on Trybend's appeal.[3] At the hearing, the Department submitted into evidence: (1) Trybend's official notice of suspension; (2) a DL-21D (10-15) Form, titled "Report of a Court Showing the Conviction of Certain Violations of the [Drug Act]" (Conviction Report); and (3) Trybend's certified driving record. (R.R. at RR046-58.)

The Conviction Report is a standard form that a clerk of court uses to fulfill reporting obligations under Section 6323(1)(i) of the Vehicle Code, 75 Pa. C.S. § 6323(1)(i).4 The form includes a number of boxes that are to be checked for various violations of Section 13 of the Drug Act, 35 P.S. § 780-113, specifically subsections (a)(12), (a)(16), (a)(30), (a)(31), and (a)(36). Notably, the Conviction Report also directs the clerk of court to check the box if a person is convicted of any of the inchoate offenses of Criminal Attempt (18 Pa. C.S. § 901), Criminal Solicitation (18 Pa. C.S. § 902), or Criminal Conspiracy (18 Pa. C.S. § 903) as they relate to the offenses under Section 13 of the Drug Act listed on the form. (R.R. at RR051.) Trybend's Conviction Report shows a checked box next to

Section 13(a)(30) of the Drug Act, apparently indicating that he was convicted of a violation of Section 13(a)(30) of the Drug Act or convicted of an inchoate offense related thereto-i.e., Sections 901-903 of the Crimes Code, 18 Pa. C.S. §§ 901-903. (Id.) Trybend's certified driving record identifies two convictions for a violation of Section 13(a)(30) of the Drug Act and one conviction for a violation of Section 13(a)(16) of the Drug Act. (R.R. at RR056.)

Additionally, the Department presented a printout of the docket entries for Trybend's underlying criminal case, which lists the charges and the disposition thereof. (R.R. at RR059-67.) Trybend objected to the exhibit because the printout was not a certified, official copy of the criminal docket entries. The trial court admitted the exhibit over objection. (R.R. at RR041.)

To rebut the Department's evidence, Trybend offered the trial court's sentencing order, dated March 16, 2018 (Sentencing Order), relating to Trybend's underlying criminal case.5 The Sentencing Order provided, in relevant part: AND NOW, this 16th day of March, 2018, the Court having accepted [Trybend's] open plea on August 18, 2017, and based upon [Trybend's] cooperation with the Commonwealth, the Court hereby sentences [Trybend] as follows:

On the charge of Criminal Use of a Communication Facility, [18 Pa. C.S.] § 7512(a), a Felony of the 3rd Degree, [Trybend] is sentenced to pay the costs of prosecution and be placed in the Intermediate Punishment Program for a period of twenty-three (23) months under the supervision of the Washington County Adult Probation Office. The first six (6) months of which shall be served on an electronic home monitor, with costs taxed to [Trybend].

On the charge of Criminal Conspiracy, [18 Pa. C.S.] § 903(a)(1), an ungraded Felony, [Trybend] is sentenced to be placed in the Intermediate Punishment Program for twenty-three (23) months under the supervision of the Washington County Adult Probation Office. The first six (6) months of which shall be served on an electronic home monitor, with costs taxed to [Trybend]. This sentence shall run concurrently to the sentence imposed above.

. . . .

The Court will specifically note that the remaining charges set forth in the Commonwealth's Criminal Information are nolle prossed as part of the plea agreement. Such nolle pros includes Violations of the Drug Act, Possession with Intent to Deliver, [35 P.S.] § 780-113(a)(30), a Felony, and Simple Possession, [35 P.S.] § 780-113(a)(16), a Misdemeanor.

(R.R. at RR008-09.)

At the hearing, Trybend argued that the Sentencing Order does not...

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