The opinion of the court was delivered by: Judge McGINLEY
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals the order of the Court of Common Pleas of Montgomery County (trial court) that sustained the appeal of Ruslan Sivak (Sivak) from a one year suspension of his operating privilege pursuant to Section 3804(e)(2) of the Vehicle Code (Code), 75 Pa.C.S. §3804(e)(2).*fn1
On February 10, 2008, Sivak was arrested and charged with DUI/Unsafe Driving and a traffic offense. Sivak appeared before the Court of Common Pleas of Montgomery County on February 5, 2009, to enter a guilty plea.
At the guilty plea hearing, Christopher Parisi, Esquire, Assistant District Attorney, stated to the Court of Common Pleas of Montgomery County:
Your Honor, it's my understanding the defendant [Sivak] is entering a plea to the main bill, count one, driving after imbibing, under Subsection A1, that's an ungraded misdemeanor. In exchange for his plea he'll receive a sentence of not less than 72 hours no [sic] more than six months, pay the mandatory $1,000 fine as well as costs, Penn DOT requirements and safety school, CRN evaluation....
Notes of Testimony, February 5, 2009, (N.T. 2/5/09) at 3; Reproduced Record (R.R.) at 84a.
The Court of Common Pleas of Montgomery County announced:
In the matter of the Commonwealth of Pennsylvania versus Ruslan Sivak, I find that he's entered a knowing, intelligent and voluntary plea to the bill at 5286 of 03, count one, driving after imbibing, an ungraded misdemeanor.... Count two will be nol-prossed [sic].
As a result of accepting his plea, he is to undergo imprisonment for not less than 72 hours, no [sic] more than six months in Montgomery County Correctional Facility. Commitment will date from March 2nd of the year 2009 at 9 a.m. He's also sentenced to pay the cost as well as a $1,000 fine, abide by all the Penn DOT requirements and pay a $35 per month offender supervision fee.
N.T. 2/5/09 at 7-8; R.R. at 88a-89a.
The Trial/Plea/Sentence signed by the Court of Common Pleas of Montgomery County indicated that the court accepted a guilty plea to DUI (UM).*fn2
The Clerk of Courts of Montgomery County prepared the DL-21 Form for DOT. The Form indicated that Sivak was sentenced to prison and that he was not sentenced under Section 3804(a)(1) of the Code, 75 Pa.C.S. §3804(a)(1).*fn3
Sivak's attorney, V. Erik Petersen (Attorney Petersen) believed that the DL-21 Form was completed in error because Sivak was sentenced under Section 3804(a)(1) of the Code. Attorney Petersen communicated his belief to the Clerk of Courts of Montgomery County which prepared an amended DL-21 Form which indicated that Sivak was sentenced to prison and was sentenced under Section 3804(a)(1).
After it received the original DL-21 Form, DOT, by official notice dated April 6, 2009, informed Sivak that his operating privilege was to be suspended for one year, effective August 23, 2009, as a result of his conviction on February 5, 2009, for violating Section 3802(a)(1) of the Code, 75 Pa.C.S. §3802(a)(1), DUI General Impairment on February 10, 2008.*fn4
The trial court held a de novo hearing on October 5, 2009. DOT submitted into evidence the official notice of suspension, the original DL-21 Form, and Sivak's driving record.
Attorney Petersen argued that DOT's exhibit established that Sivak was convicted of an ungraded misdemeanor and had no prior DUI offense so that he was not subject to a suspension under Section 3804(e)(2)(iii) of the Code, 75 Pa.C.S. §3804(e)(2)(iii). Attorney Petersen had ...