D.R. Trybend v. Bureau of Driver Licensing ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel R. Trybend, :
Appellant :
:
v. : No. 34 C.D. 2019
: Submitted: July 12, 2019
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: November 8, 2019
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.
1
The General Assembly amended Section 1532 of the Vehicle Code by the Act of
October 24, 2018, P.L. 659 (H.B. 163). H.B. 163 became effective April 22, 2019, and removed
convictions under The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), Act of
April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 to -144, from the list of convictions
which trigger license suspensions under Section 1532 of the Vehicle Code. The amendment does
not apply retroactively.
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.)
2
Section 13(a)(30) of the Drug Act provides:
(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited:
....
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance by
a person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating, delivering
or possessing with intent to deliver, a counterfeit controlled substance.
3
In addition to suspending the license of Trybend, the Department also suspended the
license of Kevin D. Trybend. The trial court consolidated the matters for the purpose of conducting
a hearing because their convictions stem from the same underlying criminal case. Kevin D.
Trybend has a similar appeal pending before this Court at Trybend v. Department of
Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 33 C.D. 2019).
2
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
4
Section 6323(1)(i) of the Vehicle Code provides:
The clerk of any court of this Commonwealth, within ten days after final judgment
of conviction or acquittal or other disposition of charges under any of the provisions
of this title or under [S]ection 13 of the [Drug Act,] . . . including an adjudication
of delinquency or the granting of a consent decree, shall send to the department a
record of the judgment of conviction, acquittal or other disposition.
3
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.]
5
Trybend was sentenced by the Court of Common Pleas of Washington County’s criminal
division. (R.R. at RR008-09.)
4
§ 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
reflect a conviction for a Drug Act related offense. To the contrary, the Sentencing
Order provides that all violations of the Drug Act are nolle prossed. Trybend’s
counsel explained that dismissing the Drug Act-related charges was a specific part
of the plea negotiations. Trybend’s counsel argued that the Criminal Conspiracy
conviction was either for general conspiracy or for conspiracy to use a
communication facility for a criminal purpose. In other words, the conspiracy was,
if anything, related to Trybend’s first conviction and was not related to
Section 13(a)(30) of the Drug Act. 6 Thereafter, on December 10, 2018, the trial
court issued an order dismissing Trybend’s appeal. In its Pa. R.A.P. 1925(a)
6
Trybend’s counsel stated as follows:
I have to offer for the Court, Your Honor, the . . . actual Sentencing Orders
on both of these cases, and rather than—just to save the Court some time, rather
than take my client’s [sic] testimony, I can just recite what occurred. Both of these
individuals, this is a father and a son, were involved in a case stemming from
Canonsburg relating to a conspiracy involving [the] use of cell phones to dispose
and sell prescription drugs, and through plea negotiations, they were ultimately—
they pled and were sentenced on a general count of conspiracy and conspiracy—or
in criminal use of a communication facility, which is what the act they did involved,
was using the cell phones to further their scheme.
As part of the negotiations with the District Attorney’s Office, it was
specifically noted we were looking to dismiss and have the drug charges withdrawn,
which is what we did, and, in specific, if you look at Mr. Daniel Trybend’s Order,
the very last paragraph says the Court will, specifically, note that all the remaining
charges set forth in the Commonwealth’s Criminal Information are nolle prossed
as part of the plea agreement, including violations of the Drug Act, attempt to
deliver, felony, simple possession.
(R.R. at RR032-33.)
5
opinion, the trial court explained that “there is no dispute that [Trybend] was
criminally convicted and that he was convicted of Criminal Use of Communication
Facility, 18 Pa. C.S.[] § 7512(a) and Criminal Conspiracy to Deliver a Controlled
Substance, 18 Pa. C.S.[] § 903(a) – 35 P.S. § 780-113(a)(30).” (R.R. at RR027.)
Citing this Court’s decision in Conchado v. Department of Transportation, Bureau
of Driver Licensing, 941 A.2d 792 (Pa. Cmwlth. 2008), the trial court concluded that
conspiracy to commit a violation of Section 13(a)(30) of the Drug Act triggered the
suspension of Trybend’s license. (R.R. at RR027-28.) Accordingly, the trial court
dismissed Trybend’s statutory appeal. This appeal followed.7
II. DISCUSSION
In a license suspension appeal, the only issues before the trial court are
whether the criminal court convicted the licensee, and whether the Department acted
in accordance with applicable law. Glidden v. Dep’t of Transp., Bureau of Driver
Licensing, 962 A.2d 9, 12 (Pa. Cmwlth. 2008). The Department bears the initial
burden to establish a prima facie case that a record of conviction supports the
suspension. Id. “An essential part of satisfying this burden is the production of an
official record of the conviction supporting the suspension.” Id. Once the
Department satisfies its initial burden of establishing a conviction, a rebuttable
presumption is created. Id. at 13. To overcome this presumption, a licensee must
show by clear and convincing evidence that the record is erroneous. Id. “Clear and
convincing evidence is ‘evidence that is so clear and direct as to permit the trier of
fact to reach a clear conviction, without hesitancy, as to the truth of the facts at
7
“This Court’s review is limited to determining whether the trial court’s findings are
supported by competent evidence, whether errors of law were committed, or whether the trial court
committed an abuse of discretion in making its [decision].” Sivak v. Dep’t of Transp., Bureau of
Driver Licensing, 9 A.3d 247, 251 n.6 (Pa. Cmwlth. 2010).
6
issue.’” Id. (quoting Mateskovich v. Dep’t of Transp., Bureau of Driver Licensing,
755 A.2d 100, 102 n.6 (Pa. Cmwlth. 2000)).
Section 1532(c) of the Vehicle Code governs mandatory license
suspensions. At the time of Trybend’s conviction, Section 1532(c) provided:
(c) Suspension.--The department shall suspend the
operating privilege of any person upon receiving a
certified record of the person’s conviction of any offense
involving the possession, sale, delivery, offering for sale,
holding for sale or giving away of any controlled
substance under the laws of the United States, this
Commonwealth or any other state . . . .
(1) The period of suspension shall be as follows:
(i) For a first offense, a period of six months
from the date of the suspension.
75 Pa. C.S. § 1532(c) (emphasis added). In Conchado, this Court concluded that the
phrase “any offense involving” should be broadly interpreted to include convictions
not specifically enumerated in Section 1532(c) of the Vehicle Code. Conchado,
941 A.2d at 795. In that case, this Court held that criminal conspiracy to commit an
enumerated offense appearing in Section 1532(c) triggered a mandatory license
suspension. We explained that it “would appear obvious . . . that conspiracy to
commit a crime ‘involves’ that crime,” and, thus, requires a suspension of operating
privileges in accordance with Section 1532(c) of the Vehicle Code. Id. at 795-96.
The parties agree that conspiracy to commit an enumerated offense
listed in Section 1532(c) of the Vehicle Code triggers a mandatory suspension.
Trybend, however, argues the trial court erred in concluding that the Department
satisfied its burden of proving that he was convicted for conspiring to commit a
violation of Section 13(a)(30) of the Drug Act. Alternatively, Trybend asserts that,
if the Department satisfied its initial burden, he proved that the Department’s record
of conviction is erroneous. We address each argument in turn.
7
A. Department’s Evidence
Trybend challenges the trial court’s admission of the uncertified
printout of the criminal docket entries as proof of conviction, and the Department
agrees that the trial court erred in admitting the printout. (See Department’s Brief
at 15 (“Trybend is correct that the trial court should not have admitted these
uncertified docket entries.”)); see also Conchado, 941 A.2d at 794 (“While a court
in appropriate circumstances may take judicial notice of court records, this does not
include unauthenticated photocopies which look like court records but are not
stipulated to be genuine and accurate.”). This Court agrees with the parties that the
trial court erred in admitting Department’s Exhibit 2, the uncertified printout of
Trybend’s criminal docket. In Rawson v. Department of Transportation, Bureau of
Driver Licensing, 99 A.3d 143 (Pa. Cmwlth. 2014), we held that what constitutes an
official record sufficient to establish the fact of an actual conviction is governed by
Section 6103 of the Judicial Code, 42 Pa. C.S. § 6103, which provides, in relevant
part:
(a) General Rule.--An official record kept within this
Commonwealth by any court, magisterial district judge or
other government unit . . . when admissible for any
purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal
custody of the record, or by that officer’s deputy, and
accompanied by a certificate that the officer has the
custody.
Because the printout of Trybend’s criminal docket entries was uncertified, it is not
an official record sufficient to establish the fact of conviction. Accordingly, we
agree with the parties that the trial court erred in admitting the Department’s
Exhibit 2.
8
Nevertheless, the Department maintains that the trial court’s improper
admission of the uncertified criminal docket entries is harmless error, as its other
evidence was sufficient to establish a prima facie case that Trybend was convicted
of violating Section 13(a)(30) of the Drug Act or a related inchoate offense. In
Glidden, this Court held that the Department’s production of a certified conviction
report and a certified driving record is sufficient to satisfy its initial burden and
creates a rebuttable presumption of the fact of a licensee’s conviction. Glidden,
962 A.2d at 12-13. Here, the Department presented Trybend’s Conviction Report,
showing one conviction for or involving Section 13(a)(30) of the Drug Act, and
certified driving record, showing 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.8 Accordingly, even without considering the uncertified printout of Trybend’s
criminal docket entries, the Department satisfied its initial burden of proof and
successfully created a rebuttable presumption that Trybend was convicted of the
offenses identified in the Conviction Report and certified driving record. Thus, the
trial court’s admission of the uncertified printout of the criminal docket entries
constituted harmless error as it relates to the Department’s prima facie case. Moving
forward, the relevant question, then, is whether Trybend rebutted the presumption
by producing clear and convincing evidence that the Department’s records are
erroneous. In analyzing that question, we will proceed as if the trial court had not
admitted into evidence the uncertified printout. Thus, the uncertified printout will
not be considered for purposes of buttressing or rebutting the presumption
established by the Conviction Report and certified driving record.
8
The certified driving record appears merely to document receipt of the Conviction Report.
9
B. Trybend’s Evidence
Trybend argues that the Sentencing Order rebuts the presumption that
he was convicted of an offense involving the Drug Act. He argues that the
sentencing court specifically noted that violations of the Drug Act, including
Possession with Intent to Deliver, 35 P.S. § 780-113(a)(30), and Simple Possession,
35 P.S. § 780-113(a)(16), were nolle prossed. We agree with Trybend that the
Sentencing Order shows that the above charges under the Drug Act were, in fact,
nolle prossed at sentencing. The Department, however, does not argue that a Drug
Act conviction is triggering Trybend’s suspension. Rather, the Department asserts
that Trybend’s conviction for Criminal Conspiracy to violate the Drug Act under
Section 903 of the Crimes Code is triggering the suspension. Conchado, 941 A.2d
at 795-96.
Trybend argues that while the Sentencing Order convicts him of
Criminal Conspiracy, 18 Pa. C.S. § 903, it does not indicate the object of such
conspiracy, and, therefore, the Department cannot prove that he was convicted of
conspiracy to commit a violation of Section 13(a)(30) of the Drug Act.
Section 903(a) of the Crimes Code defines conspiracy as follows:
A person is guilty of conspiracy with another person or
persons to commit a crime if with the intent of promoting
or facilitating its commission he:
(1) agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an
attempt or solicitation to commit such crime.
(Emphasis added.) “A criminal conspiracy conviction requires proof of: ‘(1) an
intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator[,]
10
and (3) an overt act in furtherance of the conspiracy.’” Cmwlth. v. Thomas, 65 A.3d
939, 943 (Pa. Super. 2013) (quoting Cmwlth. v. Galindes, 786 A.2d 1004, 1010 (Pa.
Super. 2001), appeal denied, 803 A.2d 733 (Pa. 2002)). Thus, a conspiracy
conviction cannot exist absent an intent to commit or aid in an underlying crime or
unlawful act. Id. At the trial court hearing, Trybend’s counsel argued that the
conspiracy conviction was either for “general” conspiracy or conspiracy to
criminally use a communication facility. (R.R. at RR032-33.) Beyond his counsel’s
statements to this effect, Trybend offered no supporting testimonial or documentary
evidence to support that theory.
Although the Sentencing Order fails to indicate the object of the
conspiracy, the absence of this information does not rebut the presumption that
Trybend pled guilty to conspiracy to violate Section 13(a)(30) of the Drug Act as
reflected in the Department’s certified records. (R.R. at RR051, RR056.) In order
to rebut the presumption, Trybend must have presented clear and convincing
evidence that the object of the conspiracy was not to violate the Drug Act but,
instead, to commit some other unlawful act. Although Trybend’s counsel stated to
the trial court that the conspiracy was either for “general” conspiracy, which cannot
exist under the Crimes Code, or for conspiracy to criminally use a communication
facility, he presented no evidence. It is well-settled that an attorney’s statements at
trial are not evidence. Glidden, 962 A.2d at 13. In sum, Trybend did not present
clear and convincing evidence that the object of the conspiracy was to commit a
crime other than a violation of Section 13(a)(30) of the Drug Act.
III. CONCLUSION
We conclude that the Department carried its initial burden of proof that
Trybend was convicted of conspiracy to commit a violation of Section 13(a)(30) of
11
the Drug Act, and Trybend failed to rebut the presumption that the conviction exists.
Accordingly, this Court affirms the trial court’s order dismissing Trybend’s appeal.
P. KEVIN BROBSON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel R. Trybend, :
Appellant :
:
v. : No. 34 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 8th day of November, 2019, the Washington County
Court of Common Pleas’ order dated December 10, 2018, is AFFIRMED.
P. KEVIN BROBSON, Judge