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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
JARED ANTHONY JACKSON,                   :         No. 1456 EDA 2015
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, April 14, 2015,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0002847-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 22, 2016

      Jared Anthony Jackson appeals from the judgment of sentence issued

by the Court of Common Pleas of Montgomery County on April 14, 2015,

after his conviction of driving under the influence; driving under the

influence--highest rate of alcohol; driving under the influence of a controlled

substance; and driving while operating privilege is suspended.1

      On November 10, 2013, appellant was involved in a one-car accident.2

Chemical testing revealed that appellant had a blood-alcohol content of

.168% and also had cocaine present in his system. Bail was set and posted.


1
  75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3802(d)(1)(ii), 3802(d)(3), and
1543(a) respectively.
2
  Evidently, appellant crashed into an electric utility pole, which caused a
local power outage, and he had to be transported from the scene by a
medical helicopter.
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      On January 7, 2015, a bench trial was held.      It was stipulated that

appellant’s driver’s license was already under suspension at the time of the

accident.    Appellant was found guilty of four counts of driving under the

influence and one count of driving without a license.      After rendering its

guilty verdict, the trial court modified appellant’s bail order to include the

following:    “No driving pending sentence.”     (Order, 1/7/15 at 1).        On

April 14, 2015, appellant was sentenced to serve five days to six months of

incarceration and to pay restitution of $23,632.36. This appeal followed. 3

      Appellant raises two issues:

             [1.]   DID   THE   TRIAL  COURT   ABUSE  ITS
                    DISCRETION WHEN IT EXTENDED THE
                    STATUTORILY MANDATED ONE-YEAR DRIVING
                    PRIVILEGE SUSPENSION BY AN ADDITIONAL
                    NINTEY [SIC] SEVEN[ ]DAYS, VIA A BAIL
                    ORDER NOT TO DRIVE ISSUED DURING THE
                    PERIOD IN BETWEEN THE DEFENDANT’S
                    SENTENCING AND CONVICTION?

             [2.]   DID THE TRIAL COURT ERR IN FAILING TO
                    MODIFY THE APPELLANT’S BAIL ON THE
                    RECORD    IN   OPEN    COURT[   ]THEREBY
                    DEPRIVEING [SIC] THE APPELLANT OF NOTICE
                    AND, BY PROXY, HIS ENTITLED OPPORTUNITY
                    FOR PROPER DUE PROCESS?

Appellant’s brief at 6.




3
  We are unable to discern from the record the dates of appellant’s original,
underlying license suspension. However, it appears that appellant concedes
that his license was already suspended at the time of the modification. (See
appellant’s brief at 16.)


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     At the outset, we note that appellant does not raise any issues relating

to his underlying conviction or sentencing. Rather, appellant argues that the

trial court erroneously extended the mandatory one-year4 driving suspension

by an additional 97 days when it modified the bail order to include:       “no

driving pending sentencing.”     He asserts that the trial court “chose not to

stipulate that the bail order be credited towards the mandatory one-year

suspension sentence.” (Appellant’s brief at 11, 13.) He contends that this

constituted a manifest abuse of discretion on the part of the trial court. We

disagree.

     First, whether appellant was entitled to “credit” against his mandatory

license suspension was not for the trial court, in the first instance, to

determine. The mandatory suspension of a driver’s license upon conviction

for DUI is a collateral civil penalty administratively imposed by the

Pennsylvania Department of Transportation (“PennDOT”) pursuant to the

mandates of the Motor Vehicle Code not the Crimes Code. Commonwealth

v. Wolf, 632 A.2d 864, 867 (Pa. 1993). All questions of credit towards a

suspension   are   exclusively   within   the   province   of   PennDOT.   See

75 Pa.C.S.A. §§ 1540, 1541; Department of Transportation, Bureau of

Driver Licensing v. Sullivan, 594 A.2d 791 (Pa.Cmwlth. 1991) (trial court

had no authority to grant defendant credit for the time period between his



4
  Pursuant to 75 Pa.C.S.A. § 1543, appellant faced a mandatory one-year
suspension for driving while his license was suspended.


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arrest and conviction for driving under the influence). If appellant believed

he was entitled to 97 days of credit against his license suspension for the

time he was unable to drive pursuant to the terms of his bail while awaiting

sentencing, his recourse was to avail himself of the administrative

procedures which PennDOT provides.         Department of Transportation,

Bureau of Driver Licensing v. Cardell, 568 A.2d 999 (Pa.Cmwlth. 1990).

      Moreover, the trial court was well within its authority to permit

appellant to remain out of jail, free on bail, after his conviction pending

sentencing with the condition that he did not drive.      The trial court has

discretion to impose conditions of bail after a conviction.       Pa.R.Crim.P.

Rule 521(D)(2) provides:

            The decision whether to change the type of release
            on bail or what conditions of release to impose shall
            be based on the judge’s evaluation of the
            information about the defendant as it relates to the
            release criteria set forth in Rule 523. The judge shall
            also consider whether there is an increased likelihood
            of the defendant’s fleeing the jurisdiction or whether
            the defendant is a danger to any other person or to
            the community or to himself or herself.

      The trial court explained its reasons for imposing the no driving

condition of bail:

            This Court’s order prohibiting Appellant from driving
            was issued out of concern for public safety.
            Appellant caused a motor vehicle accident which
            required the response of four independent agencies
            [East Norriton Police Department, Norriton Fire
            Department, Emergency Medical Services, and
            Philadelphia Electric Company].     In the accident,
            Appellant sustained injuries of such severity that he


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            was airlifted to University of Pennsylvania Hospital.
            The accident also resulted in property damage
            totaling $23,632.36. Finally, this accident occurred
            while Appellant’s license was already suspended.
            Therefore, this Court sought to restrict Appellant’s
            role in creating public danger by ordering him not to
            drive prior to sentencing.

Trial court order, 6/17/15 at 3 (footnote omitted).

      A condition that appellant not operate a motor vehicle while free on

bail pending appeal had the purpose of protecting the public safety and was

appropriate. Pa.R.Crim.P. Rule 521(D)(2); see also Ex parte Anderer, 61

S.W.3d 398 (Tex.Crim.App. 2001) (after conviction for criminally negligent

homicide, bail condition that defendant not operate any type of motor

vehicle was valid, even though such operation essential to his business, as

“purpose of protecting the public safety”). Ordering appellant not to drive as

a condition of his release on bail was part of the criminal proceedings and

entirely separate from the civil/administrative license suspension penalty.

      Lastly, appellant argues that the trial court’s failure to place the bail

modification “in open court on the record when all parties [were] present”

violated Pa.R.Crim.P. 521(D)(1).     Appellant fails to explain how he was

prejudiced by this error.    By all accounts, appellant’s license was already

suspended at the time the trial court entered its bail modification order. He

was not authorized to drive pending sentencing notwithstanding the trial

court’s bail modification order.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2016




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