R. Holt v. PennDOT, Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Holt, :
Appellant :
:
v. : No. 2232 C.D. 2015
: Submitted: February 24, 2017
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: June 13, 2017
In this appeal, Richard Holt (Licensee) asks whether the Court of
Common Pleas of Philadelphia County (trial court) erred in dismissing his appeal
from the six-month suspension of his operating privileges imposed by the
Pennsylvania Department of Transportation (PennDOT) pursuant to Section
1532(c) of the Vehicle Code, 75 Pa. C.S. §1532(c).1 Licensee argues the trial court
erred in dismissing his appeal where PennDOT did not present a certified record of
his criminal conviction, but rather it presented a recreated document based on
information it purportedly received from the Philadelphia Clerk of Courts (Clerk of
Courts). Upon review, we affirm.
1
Section 1532(c) of the Vehicle Code states, in pertinent part: “[PennDOT] 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 ….” 75 Pa. C.S. §1532(c).
I. Background
In February 2015, the Clerk of Courts electronically transmitted a
“Report of a Court Showing the Conviction of Certain Violations of the Controlled
Substance, Drug, Device and Cosmetic Act [(Drug Act)2]” (Conviction Report) to
PennDOT, which indicated that Licensee was convicted of violating Section
13(a)(16) of the Drug Act, 35 P.S. §780-113(a)(16). Shortly thereafter, PennDOT
sent Licensee a notice of suspension, which indicated Licensee’s driving privilege
would be suspended for six months pursuant to Section 1532(c) of the Vehicle
Code. Licensee appealed to the trial court.
The trial court held a de novo hearing. At the hearing, PennDOT
offered into evidence a packet of documents, marked as Exhibit C-1. The packet
of documents was certified and under seal from the Acting Secretary of
Transportation and the Director of the Bureau of Driver Licensing (Director). The
packet contained: (1) a copy of PennDOT’s notice of suspension to Licensee; (2) a
copy of the Conviction Report (DL-21D Form); and (3) Licensee’s certified
driving history. Reproduced Record (R.R.) at 22a. PennDOT represented to the
trial court that the Conviction Report it presented was “sent to [PennDOT] from
the Clerk of Courts, outlining the February 13th, 2015 conviction of the [Drug Act]
….” Tr. Ct., Slip Op., 9/9/16, at 1. Licensee did not object to the admission of
these documents. PennDOT rested after admission of Exhibit C-1.
In response, Licensee initially asserted that Section 1532(c) of the
Vehicle Code only applied to felony, rather than misdemeanor, convictions. The
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101–780-144.
2
trial court noted that Section 1532(c) provided for the suspension of the driving
privilege of any person upon receipt of 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.
However, upon review of the Conviction Report, the trial court, on its
own motion, questioned whether the Report was actually a certified conviction
report as required by Section 1532(c). After some discussion, PennDOT
represented to the trial court “... that’s how the Clerk of Courts … submits the
information[.]” Tr. Ct., Slip Op., at 1. PennDOT cited Sections 1516 and 1550(d)
of the Vehicle Code in support of the admissibility of the electronically transmitted
Conviction Report as evidence of Licensee’s conviction. At that point, Licensee’s
counsel objected to the admissibility of the Conviction Report on the ground that it
was uncertified. Licensee did not testify or present any evidence.
Ultimately, the trial court denied Licensee’s appeal. Licensee
appealed to this Court.
In a subsequently filed opinion pursuant to Pa. R.A.P. 1925(a), the
trial court noted that, in his concise statement of the errors complained of on
appeal, Licensee argued the trial court erred in basing its decision on an uncertified
document showing Licensee’s underlying criminal conviction.
The trial court explained that in license suspension cases, the sole
issues are whether the licensee was convicted of a crime, and whether PennDOT
3
acted in accordance with applicable law. Glidden v. Dep’t of Transp., Bureau of
Driver Licensing, 962 A.2d 9 (Pa. Cmwlth. 2008). PennDOT must establish a
prima facie case that a record of conviction exists to support a suspension. Id. To
satisfy this burden, PennDOT must produce an official record of the conviction.
Id.Here, PennDOT produced what it represented to be Licensee’s
Conviction Report, the DL-21D Form. The Conviction Report was uncertified and
unsealed, but PennDOT represented that it was the Conviction Report
electronically transmitted by the Clerk of Courts to PennDOT. PennDOT’s
argument as to the admissibility of the DL-21D Form was based on Sections 1516
and 1550(d) of the Vehicle Code. However, the trial court stated, PennDOT’s
reliance on those provisions was misplaced.
To that end, the trial court observed, it was clear that Section 1550(d)
of the Vehicle Code provides for the admissibility of electronically transmitted
certifications of a driver’s conviction, but only if such documents are transmitted to
PennDOT by an out-of-state court. The trial court explained Section 1550(d) was
inapplicable to documents generated by the courts of common pleas in
Pennsylvania. See Hoover v. Dep’t of Transp., Bureau of Driver Licensing, 725
A.2d 1254 (Pa. Cmwlth. 1999).
Further, the trial court explained, Section 1516(b) of the Vehicle Code
states that certifications of conviction reports submitted to PennDOT by the courts
shall be considered PennDOT records. The documents, or copies thereof, shall be
4
admissible to support PennDOT’s case in an appeal under Chapter 15 (related to
licensing of drivers). PennDOT’s certification of a copy of the certified conviction
report is prima facie proof of the facts and information contained in the report. 75
Pa. C.S. §1516(b). Pursuant to Section 1516(b), the trial court stated, PennDOT
could offer, as admissible evidence, a copy of a certified conviction report from the
Clerk of Courts when that copy is certified by the Secretary of Transportation and
the Director. However, the trial court determined, Section 1516(b) does not
address the issue presented here where the conviction report was a “recreation” by
PennDOT and not a copy of the actual document electronically transmitted to
PennDOT by the Clerk of Courts. Tr. Ct., Slip Op., at 3.
Arguably, the trial court explained, the recreated Conviction Report
contained information from the actual certified and signed DL-21D Form that was
electronically transmitted to PennDOT by the Clerk of Courts, but the trial court
lacked additional information concerning the PennDOT generated DL-21D Form.
Thus, the trial court stated, the issue was whether the DL-21D Form PennDOT
generated, that supposedly contained information from an electronically
transmitted, certified and signed DL-21D Form, which was then certified by the
Director and the Acting Secretary of Transportation, satisfied PennDOT’s burden
of producing an admissible, official record of Licensee’s conviction to support the
suspension.
The trial court explained its review of case law suggested that it may
conclude PennDOT did not establish Licensee’s conviction based on the
Conviction Report PennDOT generated, as it was an unsigned, uncertified
5
document apparently prepared by PennDOT. Further, the Conviction Report
offered as evidence of Licensee’s conviction was not a copy of the signed, certified
report filed with PennDOT by the Clerk of Courts. See 75 Pa. C.S. §1516(b);
Rawson v. Dep’t of Transp., Bureau of Driver Licensing, 99 A.3d 143 (Pa.
Cmwlth. 2014) (discussing statutory requirements for certification of conviction
report and reiterating that conviction documents must be certified and
authenticated by clerk of courts to be proper evidence of conviction that forms the
basis for trial court’s decision); Cotter v. Dep’t of Transp., Bureau of Driver
Licensing, 703 A.2d 1092 (Pa. Cmwlth. 1998) (PennDOT attorney cannot generate
and certify public records, such as conviction reports, to establish licensee was
actually convicted of purported violation because to allow this would contravene
the meaning and purpose of the official record provisions of Section 6103 of the
Judicial Code, 42 Pa. C.S. §61033).
The trial court further stated its analysis did not end with the
conclusions reached here, as it was apparent that PennDOT’s attorney
misrepresented to the trial court that the Conviction Report, submitted as part of
3
Section 6103(a) of the Judicial Code (“Proof of official records”) states, as relevant:
(a) General rule.--An official record kept within this
Commonwealth by any … 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. The certificate may be
made by any public officer having a seal of office and having
official duties with respect to the government unit in which the
record is kept, authenticated by the seal of that office ….
42 Pa. C.S. §6103(a).
6
Exhibit C-1, was the actual form submitted by the Clerk of Courts to PennDOT.
The trial court stated it should be given an opportunity to address this issue and
amend its ruling as it was based on erroneous factual information. Further, the trial
court observed, it appeared that PennDOT successfully used recreated DL-21D
Forms in appeals of license suspensions based on criminal convictions of an
enumerated offense. The trial court stated this issue should also be addressed by
the trial court now that it was established that this is the practice PennDOT uses in
these appeals.
For these reasons, the trial court stated, this Court should reverse the
trial court’s order denying Licensee’s appeal and remand to afford the trial court an
opportunity to address the issues identified here that were discovered after
Licensee filed his appeal to this Court.4
4
In a footnote, the trial court stated, after the hearing, the trial court contacted the Clerk
of Court’s office and was informed that the DL-21D Form is electronically transmitted to
PennDOT. However, the DL-21D Form electronically transmitted is signed and has the court
seal affixed identifying the document as a certified record. The trial court stated the DL-21D
Form PennDOT submitted here was not the DL-21D Form submitted by the Clerk of Courts and,
in fact, was a completely different DL-21D Form that is not used by the Clerk of Courts. The
trial court further explained it was possible that the DL-21D Form submitted to the trial court at
the hearing may have been prepared by PennDOT using information from the Clerk of Courts’
certified DL-21D Form. However, because PennDOT did not inform the trial court that the DL-
21D Form submitted at the hearing was the form apparently prepared by PennDOT using
information from the Clerk of Courts’ electronically transmitted, certified DL-21D Form, the
origin of the DL-21D Form presented to the trial court was unclear. Nevertheless, the trial court
stated, it appeared PennDOT created its own DL-21D Form using information from the certified,
signed DL-21D Form electronically transmitted by the Clerk of Courts to PennDOT.
Because the trial court obtained this information after the hearing, it is not part of the
certified record. As such, we may not consider it. See Commonwealth v. Young, 317 A.2d 258(Pa. 1974) (appellate court may consider only facts that have been duly certified in the record on
appeal). Further, the record contains no support for the trial court’s statements that the DL-21D
Form PennDOT submitted here was a recreated document rather than the actual DL-21D Form
PennDOT received from the Clerk of Courts. Indeed, as discussed more fully below, the
(Footnote continued on next page…)
7
II. Discussion
A. Contentions
On appeal,5 Licensee argues that, in a license suspension appeal,
PennDOT has the burden of establishing the licensee was convicted of the
purported violation. It must therefore produce an official record of the conviction
supporting the suspension. Licensee contends the conviction documents must be
certified and authenticated by the Clerk of Courts to constitute proper evidence to
satisfy PennDOT’s burden. Licensee asserts the document PennDOT provided to
the trial court here was insufficient and improper evidence upon which the trial
court could base its decision. Licensee maintains the document was an uncertified,
recreated record that did not satisfy the requirement of Section 1532(c) of the
Vehicle Code.
PennDOT responds that the Clerk of Courts properly reported
Licensee’s Drug Act conviction to the Bureau of Driver Licensing in accordance
with 75 Pa. C.S. §6323 and Pennsylvania Rule of Criminal Procedure 771.
PennDOT further argues the record of Licensee’s Drug Act conviction is properly
maintained by the Bureau of Driver Licensing in accordance with 75 Pa. C.S.
§1516(b).
(continued…)
certification of the DL-21D Form by the Director of the Bureau of Driver Licensing states
otherwise. Reproduced Record (R.R.) at 17a.
5
Our review is limited to determining whether the trial court’s findings were supported
by substantial evidence, whether the trial court committed any errors of law and whether it
abused its discretion. Rawson v. Dep’t of Transp., Bureau of Driver Licensing, 99 A.3d 143 (Pa.
Cmwlth. 2014).
8
PennDOT also asserts that the custodian of all driving records in the
Commonwealth, Bureau of Driver Licensing Director Kara N. Templeton, properly
certified Licensee’s Drug Act conviction in accordance with Sections 6103 and
6109 of the Judicial Code, 42 Pa. C.S. §§6103 and 6109, as well as 75 Pa. C.S.
§1550(d)(2). PennDOT contends the Conviction Report was admitted without
objection. As this report of Licensee’s Drug Act conviction satisfied PennDOT’s
prima facie burden of proof, and Licensee offered no evidence to rebut it,
PennDOT contends, the trial court did not err in denying Licensee’s appeal.
B. Analysis
Section 1532(c)(1)(i) of the Vehicle Code states: “[PennDOT] 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 Drug Act. “The period of suspension shall be … [f]or a first offense, a
period of six months from the date of the suspension.” Id.
In Rawson, 99 A.3d at 147, 150-51, this Court explained:
‘In a license suspension case, the only issues are
whether the criminal court convicted the licensee, and
whether [PennDOT] acted in accordance with applicable
law.’ [Glidden, 962 A.2d at 12]. [PennDOT] bears the
initial burden to establish a prima facie case that a record
of conviction supports a suspension.
[PennDOT] ‘meets its burden by submitting into
evidence its certified record of conviction demonstrating’
the offense underlying the conviction. Gayman v. Dep’t
of Transp., Bureau of Driver Licensing, 65 A.3d 1041,
1044 (Pa. Cmwlth. 2013). ‘Upon this showing, the
9
burden of proof then shifts to the licensee to present
‘clear and convincing evidence’[6] to rebut the
presumption of correctness raised by [PennDOT’s]
certified records.’ Id. (quoting Carter v. Dep’t of
Transp., Bureau of Driver Licensing, 838 A.2d 869, 872
(Pa. Cmwlth. 2003)).
“Absent clear and convincing evidence that the record is erroneous,
the presumption becomes conclusive on the issue of the conviction.” Dep’t of
Transp., Bureau of Driver Licensing v. Diamond, 616 A.2d 1105, 1107-08 (Pa.
Cmwlth. 1992). “To rebut a [prima facie] case established by a certified
conviction record, the licensee must either challenge the regularity of the record, or
introduce direct evidence showing that the record is incorrect and that the
conviction was never entered.” Dick v. Dep’t of Transp., Bureau of Driver
Licensing, 3 A.3d 703, 707 (Pa. Cmwlth. 2010).
Further, Section 1516(b) of the Vehicle Code (“[PennDOT] records”)
states (with emphasis added):
(b) Accidents and convictions.--[PennDOT] shall file all
… abstracts of court records of convictions received by it
under the laws of this Commonwealth and maintain
actual or facsimile records or make suitable notations in
order that the records of each licensee showing
convictions of the licensee … shall be available for
official use. … [PennDOT] shall maintain records or
make notations only for convictions that are relevant to
the licensee’s operating privilege. … Court abstracts and
6
“‘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 issue.’”
Mateskovich v. Dep’t of Transp., Bureau of Driver Licensing, 755 A.2d 100, 102 n.6 (Pa.
Cmwlth. 2000) (quoting Sharon Steel Corp. v. Workmen’s Comp. Appeal Bd. (Myers), 670 A.2d
1194, 1199 (Pa. Cmwlth. 1996)).
10
certifications of conviction … submitted to [PennDOT]
under the laws of this Commonwealth shall be
considered as records of [PennDOT], and [PennDOT]
may store such documents in accordance with the
provisions of 42 Pa.C.S. § 6109 (relating to photographic
copies of business and public records) and may enter into
evidence copies of such documents in accordance with
the provisions of 42 Pa.C.S. § 6103 (relating to proof of
official records). Such copies shall be admissible into
evidence to support [PennDOT’s] case in an appeal of a
[PennDOT] action taken under Chapter … 15 (relating to
licensing of drivers) … and the certification shall
constitute prima facie proof of the facts and information
contained in the court abstract or certification of
conviction …. These records shall also be made
available to the courts for sentencing purposes.
75 Pa. C.S. §1516(b).
In addition, Section 1550(d) of the Vehicle Code states:
(d) Documentation.--
(1) In any proceeding under this section,
documents received by [PennDOT] from the courts
or administrative bodies of other states or the
Federal Government shall be admissible into
evidence to support [PennDOT’s] case. In
addition, [PennDOT] may treat the received
documents as documents of [PennDOT] and use
any of the methods of storage permitted under the
provisions of 42 Pa.C.S. § 6109 (relating to
photographic copies of business and public
records) and may reproduce such documents in
accordance with the provisions of 42 Pa.C.S. §
6103 (relating to proof of official records). In
addition, if [PennDOT] receives information from
courts or administrative bodies of other states or
the Federal Government by means of electronic
transmission, it may certify that it has received the
information by means of electronic transmission
11
and that certification shall be prima facie proof of
the adjudication and facts contained in such an
electronic transmission.
(2) In any proceeding under this section,
documents received by [PennDOT] from any other
court or from an insurance company shall be
admissible into evidence to support [PennDOT’s]
case. In addition, if [PennDOT] receives
information from a court by means of electronic
transmission or from an insurance company which
is complying with its obligation under Subchapter
H of Chapter 171 (relating to proof of financial
responsibility) by means of electronic
transmission, it may certify that it has received the
information by means of electronic transmission,
and that certification shall be prima facie proof of
the adjudication and facts contained in such an
electronic transmission.
75 Pa. C.S. §1550(d).
“Generally, [PennDOT] submits a Conviction Report (DL-21D Form)
to meet its burden of proof.” Rawson, 99 A.3d at 147 (citing Glidden).
Here, at the hearing before the trial court, PennDOT presented Exhibit
C-1, a packet of documents certified by the Acting Secretary of Transportation and
signed under seal of the Director, which contained:
[(1)] OFFICIAL NOTICE OF SUSPENSION DATED & MAILED
2/26/15, EFFECTIVE 04/02/15; [(2)] REPORT OF A COURT
SHOWING THE CONVICTION OF CERTAIN VIOLATIONS OF
THE [DRUG ACT], ELECTRONICALLY TRANSMITTED ON
02/13/15, OF PHILADELPHIA COUNTY, NO. 0013222-2014,
DATE OF VIOLATION 10/29/14, AND DATE OF CONVICTION
02/13/15, AND[,] [(3)] DRIVING RECORD WHICH APPEARS
IN THE FILE OF THE PETITIONER RICHARD LEON HOLT,
12
OPERATOR’S NO. [########], DATE OF BIRTH [##/##/##],
IN THE BUREAU OF LICENSING, HARRISBURG,
PENNSYLVANIA.
R.R. at 17a (emphasis added).
As indicated above, where, as here, “[PennDOT] receives information
from a court by means of electronic transmission … it may certify that it has
received the information by means of electronic transmission, and that certification
shall be prima facie proof of the adjudication and facts contained in such an
electronic transmission.” 75 Pa. C.S. §1550(d)(2) (emphasis added).
Here, Licensee offered no objection to the admission of Exhibit C-1,
PennDOT’s certified packet of documents, which included the electronically
transmitted Conviction Report. R.R. at 5a. The Conviction Report revealed that
Licensee was convicted in the trial court of violating Section 13(a)(16) of the Drug
Act in February 2015 at CP-51-CR-0013222-2014. R.R. at 22a. In response,
Licensee presented no evidence. Thus, Licensee did not present evidence
challenging the regularity of the records contained in PennDOT’s certified Exhibit
C-1, showing the records were incorrect, or establishing he was not convicted as
described in the records. As such, there was no clear and convincing evidence that
those records were erroneous; therefore, they became conclusive as to Licensee’s
conviction. Dick; Diamond.7 Consequently, by its express terms, Section
7
Nevertheless, on its own motion, the trial court raised an issue regarding the Conviction
Report (DL-21D Form) submitted by PennDOT. R.R. at 8a. In particular, the trial court pointed
out that the DL-21D Form did not contain a signature or certification of the Clerk of Courts, but
rather it contained a notation that the DL-21D Form was “ELECTRONICALLY TRANSMITTED” on
the signature line for the Clerk of Courts. R.R. at 22a.
(Footnote continued on next page…)
13
1532(c)(1)(i) required PennDOT to suspend Licensee’s operating privilege for a
period of six months.8
(continued…)
As indicated above, where, as here, “[PennDOT] receives information from a court by
means of electronic transmission … it may certify that it has received the information by means
of electronic transmission, and that certification shall be prima facie proof of the adjudication
and facts contained in such an electronic transmission.” 75 Pa. C.S. §1550(d)(2) (emphasis
added). Here, the Director of the Bureau of Driver Licensing certified that PennDOT received
Licensee’s Conviction Report (DL-21D Form) by means of electronic transmission. R.R. at 17a.
That certification was prima facie proof of the adjudication and facts contained in the Conviction
Report, 75 Pa. C.S. §1550(d)(2), which Licensee did not rebut.
8
Further, we reject Licensee’s reliance on Rawson for the proposition that the Conviction
Report had to be certified and authenticated by the Clerk of Courts to constitute proper evidence
to meet PennDOT’s burden. In particular, Rawson did not address any issue regarding the
propriety of the electronic transmission of a Conviction Report electronically received and
certified by PennDOT under Section 1550(d)(2) of the Vehicle Code, such as that here. Indeed,
in Rawson, “[the licensee] [did] not challenge the certification of the [DL-21D] Conviction
Report.” Id. at 149.
Also distinguishable is Cotter v. Department of Transportation, Bureau of Driver
Licensing, 703 A.2d 1092 (Pa. Cmwlth. 1998), briefly referenced by Licensee. There, this Court
held PennDOT’s certification of a licensee’s conviction was insufficient where no record was
produced or attested to as official by the Director, and PennDOT merely sent a blank
certification without any indication of what official records were in the Director’s custody. In
Cotter, we held PennDOT could not have one of its attorneys generate and certify a report of the
licensee’s conviction in order to satisfy Section 6103 of the Judicial Code, but rather the Director
had to make that certification. Here, unlike in Cotter, PennDOT’s Exhibit C-1 was certified by
the Director in compliance with Section 6103 of the Judicial Code. R.R. at 17a.
Finally, Licensee cites Hoover v. Department of Transportation, Bureau of Driver
Licensing, 725 A.2d 1254 (Pa. Cmwlth. 1999), for the proposition that Section 1550(d) of the
Vehicle Code only relates to the admissibility of documents received from courts or
administrative bodies of other states or the Federal Government. However, Hoover, decided in
1999, did not address Section 1550(d)(2) of the Vehicle Code which was reenacted in 2013 to
provide for the admissibility of documents electronically transmitted by “any other court” to
PennDOT in addition to documents PennDOT receives from courts or administrative bodies of
other states or the Federal Government. 75 Pa. C.S. §1550(d)(2).
14
Accordingly, we affirm the trial court’s October 2, 2015 order that
denied and dismissed Licensee’s appeal and reinstated the six-month suspension of
Licensee’s operating privileges under Section 1532(c)(i) of the Vehicle Code.
ROBERT SIMPSON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Holt, :
Appellant :
:
v. : No. 2232 C.D. 2015
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 13th day of June, 2017, the order of the Court of
Common Pleas of Philadelphia County dated October 2, 2015 is AFFIRMED.
ROBERT SIMPSON, Judge