Brosius v. Commonwealth, Department of Transportation, Bureau of Driver Licensing , 1995 Pa. Commw. LEXIS 368 ( 1995 )

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. I agree with the Majority that the sentence enhancement provisions of Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act)¹ do not apply here;² however, unlike the Majority, I do not believe that the record in this case supports the imposition of a 90-day suspension for each of Brosius’ (Licensee) convictions.

According to the Majority, “[tjhere is no evidence in the record that [Licensee’s] two violations, which occurred ten months apart, were part of a single criminal scheme or episode. Therefore, it is appropriate to impose a penalty for each of these convic-tions_” (Majority op. at 8.) (Emphasis added.) I cannot accept the Majority’s rationale for assessing a separate penalty for each violation.

Unfortunately, the original record in this case was misplaced and, as a result, we must rely upon an Agreed Statement of Record. With regard to the date of Licensee’s first violation of the Drug Act, the Agreed Statement of Record states:

1. On January 6, 1992, Kirk A. Brosius was arrested in Westmoreland County and charged with violating ... [the Drug Act] ... by possessing a controlled substance on January 2, 1991, and again on October 3, 1991.

2. On September 18,1992, Kirk A. Brosi-us was convicted ... of two counts of violating 35 P.S. § 780-113(a)(16), one count for possessing a controlled substance on January 2, 1991, and one count for possessing a controlled substance on October 3, 1991.

(Agreed Statement of Record, paras. 1-2.) (Emphasis added.) However, the January 2 date given in the Agreed Statement of Record conflicts with the date given by both parties in their briefs to this court. These briefs indicate quite clearly that Licensee’s first violation occurred on October 2, 1991, not January 2, 1991. (Licensee’s Brief at 4, 8; Department of Transportation Brief at 2-3, 5-7, 17, 19, 23.) If, for whatever reason, the Agreed Statement of Record is incorrect and Licensee’s first violation occurred on October 2, 1991, then, contrary to the Majority’s assertion, the two violations occurred within one day of each other, not ten months apart. This would negate the Majority’s rationale for imposing a separate penalty for each of the convictions.

When a licensee violates the Drug Act on different days, if the violations arise from one episode, i.e., the same actions on different days, and the licensee has no prior convictions under the Drug Act, multiple convictions arising from a continuous criminal scheme or a single criminal episode constitute a first offense under Section 13(m) of the Drug Act. Heisterkamp v. Department of Transportation, Bureau of Driver Licensing, 165 Pa.Commonwealth Ct. 128, 644 A.2d 262, appeal denied, 539 Pa. 670, 652 A.2d 840 (1994). That is precisely the case here. Indeed, in its brief, the Department acknowledges that under Heisterkamp, Licensee would prevail.³

For these reasons, then, I would reverse the order of the trial court and remand this case for verification of the October 2, 1991 date.

1 . Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(m).

2 . Section 13(m) of the Drug Act is a sentencing enhancement provision, providing enhanced penalties for individuals with a propensity to commit repeated offenses of the same type. The purpose of such recidivist statutes is to deter offenders from repeating the criminal behavior which led to a prior conviction; however, 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. Department of Transportation, Bureau of Driver Licensing v. Perruso, 160 Pa.Commonwealth Ct. 49, 634 A.2d 692 (1993), appeal denied, 538 Pa. 650, 647 A.2d 904 (1994).

3 .In its brief, the Department stated; “The Department recognizes that this Court’s holding in Heisterkamp, if followed in this case, supports Brosius’ position that he is subject to only a single suspension for his two Drug Act convictions.” (Department Brief at 21-22.) The Department also noted that it had appealed our Heisterkamp decision to the Pennsylvania Supreme Court which, at the time, had not yet issued a ruling. (Department Brief at 8.) Since then, however, our Supreme Court has denied the Department’s appeal.