Giambrone v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

OPINION BY

President Judge LEADBETTER.

Rebecca Giambrone appeals from the order of the Court of Common Pleas of *1267Berks County (common pleas) dismissing, in part, her statutory appeal and directing the Pennsylvania Department of Transportation (DOT) to reinstate 11 suspensions of her motor vehicle operating privilege imposed pursuant to Section 1532(c) of the Vehicle Code, 75 Pa.C.S. § 1532(c).1

On November 3, 2004, DOT mailed Gi-ambrone 12 separate notices imposing a suspension of her operating privileges for 12 separate six-month periods based upon her guilty plea to informations charging violations of Section 13(a)(12) of the Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act).2 Giambrone appealed to common pleas, contending that because she had never been found guilty of a prior drug offense, only one six-month suspension should have been imposed under Section 1532(c) of the Vehicle Code as the “offense,” despite involving multiple criminal informations, was the result of a single criminal episode.

Before the trial court, DOT submitted into evidence: (1) copies of the 12 suspension notices; (2) copies of 12 corresponding DL-21D Forms issued by the Clerk of Courts of Berks County for each of Giam-brone’s convictions; and (3) copies of her driving history record. Each of the DL-21D Forms stated a criminal information number corresponding to Docket Nos. 1355/04 through 1366/04 and No.2004 03351 and a corresponding “date of violation,” as follows: May 15, 2000; April 1, 2001; January 1, 2002; January 28, 2002; September 5, 2002; October 22, 2002; November 5, 2002; November 14, 2002; January 30, 2003; July 4, 2003 and October 2, 2003.

Giambrone submitted copies of the 12 criminal informations filed by the District Attorney of Berks County. Each of those informations fisted the twelve aliases under which Giambrone obtained prescription medication by fraud or forgery. Specifically, eleven of the informations, Nos. 1355/04 to 1366/04 charged her with one count of forgery in violation of 18 Pa.C.S. § 4101(a)(3) and one count of acquisition of a controlled substance by fraud in violation of 35 P.S. § 780-113(a)(12). All of those eleven informations, except Docket No. 1365/04 dated a day later, were dated March 31, 2004. The remaining information, No.2004 03351, dated July 22, 2004, charged Giambrone with four counts of violating the same provisions fisted in the other informations, but also named the doctor on whose “script” the forged prescriptions were written and the pharmacy where the forged prescriptions were presented and filed. Giambrone also submitted 11 orders consolidating the charges in informations 1355/04 through 1366/04 for trial pursuant to Pa. R.Crim. P. 582.3 Fi*1268nally, Giambrone submitted 11 separate Intermediate Punishment Orders, dated September 1, 2004, imposing concurrent five-year terms of probation, requiring participation in a drug rehabilitation program and submission to urine testing. Another Order, also dated September 1, 2004, placed Giambrone on one year probation to run concurrently with the charges filed in the criminal information filed at Docket No. 2004 03351.

Common pleas sustained Giambrone’s statutory appeal as to one of the 12 Controlled Substance Act suspensions because the conviction reports for two offenses stated the same occurrence date of October 2, 2003, and, therefore, constituted a single criminal episode. Common pleas denied Giambrone’s statutory appeal with respect to the remaining 11 suspensions, finding them separate and distinct criminal episodes. The present appeal followed. Giambrone asserts legal error in the imposition of more than one six-month suspension, contending that her convictions stem from a single criminal episode, and challenges the accuracy of the violation dates stated on the DL-21D Forms.4

Absent any prior drug conviction, when the offense involves a single criminal episode, a single six-month suspension is imposed, but where the convictions constitute simultaneous multiple first offenses each conviction triggers a corresponding six-month suspension. Brosius v. Dep’t of Transp., Bureau of Driver Licensing, 664 A.2d 199, 202 (Pa.Cmwlth.1995) (holding that enhanced term of suspension for recidivist offenders, under Section 13(m) of the Controlled Substance Act,5 not applicable where multiple first convictions). Thus, we must decide whether Giam-brone’s multiple convictions stem from a single offense, mandating a single six-month suspension, or multiple offenses requiring multiple consecutive six-month suspensions. An “offense” within the meaning of “conviction for a violation” contained within Section 1532(c) of the Vehicle Code is not determined by the number of charges for which a person is convicted, but whether those charges arose .out of a “single criminal episode” or “multiple criminal, episodes.” Freundt v. Dep’t of Transp., Bureau of Driver Licensing, 584 Pa. 283, 291, 883 A.2d 503, 507 (2005).

In determining that multiple drug convictions had not been shown to be multiple “offenses” within the meaning of 75 Pa. C.S. § 1532(c), our Supreme Court, in Freundt, held:

The record does not reflect whether the unlawful acquisitions took place at one time, or whether the “three and one-half month period” cited in the criminal information was due to the fact that the substances were inventoried by the pharmacy during this span of time. Further, there were no distinct dates set forth in the individual counts against Appellee. Therefore, Appellee’s conviction was for a single “offense,” within the meaning of that term in this statute, that is, a single criminal episode.

*1269584 Pa. at 291, 883 A.2d at 507-08. The necessary corollary is that where separate acts occur on different dates, they are separate offenses for purpose of Section 1532(c). Cf. Lauer v. Dep’t of Transp., Bureau of Driver Licensing, 666 A.2d 779 (Pa.Cmwlth.1995) (stating that, where licensee committed three separate and distinct acts on three different days resulting in three separate violations of the Drug Act, the fact that the violations stemmed from similar circumstances all within a single week did not require a conclusion that the three convictions arose from the same criminal act). This is precisely what this court held in Carter, cited with approval by our Supreme Court in Freundt, to wit:

[T]he analysis employed in [the Commonwealth Court’s decision in] Freundt[6 ] supports the conclusion that where, as in Brosius, Lauer and here, multiple crimes are committed on different days and separately charged, each of those convictions mandates a separate suspension.
Thus, to meet its burden of proof, the Department must present evidence that the three convictions were for three separate and distinct criminal acts,5 separately charged, that occurred on different days.
FN5. Although the offenses must be separately charged, we note that they may appear as separate counts of a single indictment as in Lauer.

838 A.2d at 872 [citing Brosius and Lauer]. Thus, our courts have established a clear and workable standard, capable of consistent application.

The Department bears the burden of making a prima facie showing that multiple offenses were not part of a single criminal episode. ' See Gregg v. Dep’t of Transp., Bureau of Driver Licensing, 851 A.2d 253, 256 (Pa.Cmwlth.2004). In Carter v. Dep’t of Transp., Bureau of Driver Licensing, 838 A.2d 869 (Pa.Cmwlth.2003), we explained:

The Department meets its burden by submitting into evidence its certified record of conviction demonstrating that each offense was separately charged and occurred on different days. Upon this showing, the burden of proof then shifts to the licensee to present “clear and convincing evidence” to rebut the presumption of correctness raised by the Department’s certified records.

Id. at 872. Here, as the trial court noted, “DOT proved its case by submitting certified documents showing evidence of twelve separate acts occurring on eleven separate and clearly identifiable dates.” Trial court op. at 3 (filed April 19, 2006). This distinguishes the present case from Freundt, where the record simply did not contain any evidence of specific violation dates. Although the criminal informations submitted by Giambrone may have charged date ranges, some of which overlapped in part, the trial court did not accept that evidence as sufficient to rebut the presumption of accuracy in the specific violation dates listed on the DL-21D Forms, which the Clerk of the convicting court certified after the entry of guilty pleas. Such fact-finding is the trial court’s province. Based upon the supported finding that Giambrone was convicted of twelve offenses occurring on eleven different dates, the trial court properly applied the law set forth above to sustain her appeal to one of the twelve suspensions, while leaving the other eleven intact.

Accordingly, we affirm.

*1270 ORDER

AND NOW, this 14th day of August, 2007, the order of the Court of Common Pleas of Berks County in the above captioned matter is hereby AFFIRMED.

.Section 1532(c) of the Vehicle Code states in relevant part:

(c) 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 suspension.
(ii) For a second offense, a period of one year from the date of suspension.
(iii) For a third offense and any subsequent offense thereafter, a period of two years from the date of suspension.

. Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(12).

. Pa. R.Crim. P. 582 states in relevant part: (A) Standards

(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for *1268the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.

. While Giambrone asserts inaccuracy in the DL-21D Forms, she points to nothing specific that contradicts the accuracy certified by the Clerk of Courts’ signature on each form. Gi-ambrone bases her argument on the fact that each criminal information charges the commission of illegal conduct during a specified period of several months duration with some of the time periods stated on some of the informations overlapping.

. Section 13(m) of the Controlled Substance Act, 35 P.S. § 780-113(m), was repealed by the Act of June 28, 1993, P.L. 137.

. Freundt v. Dep’t of Transp., Bureau of Driver Licensing, 804 A.2d 706 (Pa.Cmwlth.2002).