Commonwealth v. Keene

TAMILIA, Judge:

Robert Keene appeals the mandatory minimum sentence of ninety (90) days’ imprisonment and a $1,000 fine imposed following his conviction of driving while operating privilege is suspended or revoked, driving under the influence related, 75 Pa.C.S. § 1543(b). We affirm.1

Appellant’s abysmal driving record preceding the incident at issue is as follows. On November 18, 1983, appellant was arrested for DUI and received a one-year suspension effective January 1, 1984 for refusing to submit to chemical testing. In addition to a 30-day license suspension imposed following conviction of the offense (effective April 10, *4961985), Keene was accepted into the Accelerated Rehabilitative Disposition (ARD) program. He next was arrested for DUI on May 3, 1987 and again he refused chemical testing thereby incurring a one-year suspension for the refusal, effective May 20, 1987, and an additional year for the conviction, effective May 20, 1988. His third arrest for DUI was effectuated on March 18, 1988 and again he was convicted of the offense. Because it was his third major violation within a five-year period, Keene was subject by Penn-DOT to a five-year license revocation under the habitual offenders provision of the Vehicle Code. Said suspension would run from May 20, 1989 through May 20, 1994. It was this suspension under which Keene was operating his mini-bike on May 18,1991, when he was charged and subsequently convicted of driving under suspension/DUI related.

Now on appeal from the judgment of sentence which followed, Keene raises one issue for our consideration:

Whether there was sufficient evidence to convict for the offense of driving under suspension — D.U.I. related where the driving under the influence suspension period has expired and at the time of the arrest the driver is under suspension as an habitual offender?

(Appellant’s brief, p. 5.) He argues he was sentenced improperly under section 1543, which provides in relevant 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 traffic-way 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 Rehabilitation Disposition for a violation of section 3731 (relating to driving under the 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.

Keene contends a license suspension under the habitual offenders provisions of the Vehicle Code is not a DUI-related suspension and therefore claims that since his five-year suspension was under section 1542 as a habitual offender, he could not be sentenced under section 1543(b) because that section is applicable only to DUI-related suspensions and revocations.

Appellant relies upon Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). In Taylor, only appellant’s third Vehicle Code violation was DUI-related while his first two were non-DUI offenses. After his DUI-related offense, he entered an ARD-DUI program which required his license to be suspended for three months. Additionally, consecutive to this three-month suspension term, appellant’s license was set to be revoked for five years under the habitual offenders provisions. Although appellant completed the three-month ARD suspension term without incident, he was arrested for driving while the five-year revocation period was in effect. The trial court sentenced him under section 1543(b) upon the premise that he had violated the conditions of the ARD-DUI program; Taylor appealed.

This Court reversed and remanded upon finding that Taylor could not be sentenced under section 1543(b) since his ARD-DUI suspension period had already expired at the time of the arrested.

[Appellant’s] suspension relevant to subsection [1543](b) [for ARD-DUI] was for three months only and that the five year suspension [for habitual offenders] handed appellant was not a condition of acceptance of the ARD but merely a result of such acceptance, (plus the presence of two prior traffic convictions).
*497Thus, it is really rather elementary that appellant was not caught driving while under suspension as a condition of acceptance ofARD and therefore falls outside of [§ 1548(b)]....

Id. at 574-75, 568 A.2d at 1822 (emphasis in original). We therefore found section 1543(b) was not applicable to appellant Taylor.

We find the case sub judice distinguishable. Unlike Taylor, Keene’s Vehicle Code violations within the last eleven years have all been DUI-related offenses; further, Keene was not involved in a three-month suspension under an ARD-DUI program for his most recent DUI conviction. Instead, Keene’s accumulated convictions for three DUI offenses resulted in a five-year suspension as a habitual offender under section 1542. Thus, we find without merit the argument that the five-year suspension being served by Keene, although caused by DUI violations, was not related thereto as defined in section 1543(b) in that that section requires a defendant to “receive notice he is under a Driving Under the Influence related suspension at the time he is caught driving.” (Appellant’s brief at 9.) We find appellant’s three consecutive violations of section 3731 for driving under the influence of alcohol, and his driving while the resulting five-year revocation was in effect, required the court to sentence him under section 1543(b). The relevant text of section 1543(b) states:

(b) Any person who drives a motor vehicle on any highway ... at a time when their operating privilege is suspended or revoked ... because of a violation of section S7S1 ... 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.

(Emphasis added.) Further, as we can assume appellant believes he should have been sentenced under section 1543(a), resulting only in a $200 fine, we find this theory would produce an anomalous result that the legislature certainly did not intend. As we stated in Taylor, “[t]he purpose of the distinctions between subsections (a) and (b) in 75 Pa. C.S.A. § 1543 is to treat people caught driving while under suspension for a DUI or DUI related offense more severely than those caught driving under a more general suspension.” Id. at 570, 568 A.2d at 1323. A sentence for appellant under section 1543(a) would unjustly ignore the fact that his license was revoked as a direct result of acquiring three consecutive DUI convictions within a period of less than two years.

Our analysis of section 1543(b) is furthered by Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989). Appellant Nuno was convicted of his first DUI offense before the commencement of an already scheduled five-year revocation period for non-DUI related habitual offenses. The suspension for this first DUI conviction was set to begin after the expiration of the five-year revocation period. In the midst of the five-year suspension, Nuno was convicted of a second DUI-related offense and the court sentenced him under section 1543(b).

On appeal, Nuno argued his second DUI offense could not be the basis for a section 1543(b) violation, driving while a license was revoked for DUI-related offense, because his license revocation at that time was only for the non-DUI offenses. He further argued that he could not violate section 1543(b) until the expiration of the five-year revocation term and the commencement of the consecutive one-year suspension for his first DUI offense. We rejected this argument by stating:

We hold that when a person receives notice that their operating privilege is or will be suspended or revoked for a D.U.I. related offense, that person is subject to the penalties of § 1543(b). That person will be subject to the penalties of § 154.3(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their D.U.I. related suspension or revocation.

Id. at 9, 559 A.2d at 951 (emphasis added). In the case sub judice, we similarly find that appellant was properly sentenced under section 1543(b) since he unlawfully operated a vehicle with a license that had been revoked for habitual DUI-related offenses.

Moreover, our legislature has taken the steps necessary to avoid situations such as *498this one from occurring in the future. Effective September 12, 1995, section 1543(b) has been amended to provide as follows:

(b) Certain offenses.—
(1) 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.
(2) this subsection shall apply to any person against whom one of these suspensions has been imposed whether the person is currently serving this suspension or whether the effective date of suspension has been deferred under any of the provisions of section 1544 (relating to additional period of revocation or suspension). This provision shall also apply to any revocation imposed pursuant to section 1542 (relating to revocation of habitual offender’s license) if any of the enumerated offenses was for a violation of section 3731.

In keeping with the above analysis of the statutory and case law as it applies to the facts of this case, we affirm the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

FORD ELLIOTT, J., files a dissenting opinion.

. This case was originally appealed to this Court in 1993. At that time, we found appellant had not been advised of his right to file post-verdict motions and accordingly were constrained to remand. Commonwealth v. Keene, 433 Pa.Super. 610, 636 A.2d 1212 (1993) (unpublished memorandum). This appeal followed the filing and denial of the motions.