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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul A. Felbaum

:

:

v.

: No. 1055 C.D. 2004

:
Commonwealth of Pennsylvania,
: Submitted: October 1, 2004
Department of Transportation,
:
Bureau of Driver Licensing,
:

Appellant

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION BY JUDGE SIMPSON FILED: November 5, 2004

The Department of Transportation, Bureau of Driver Licensing
(PennDOT) appeals an order of the Court of Common Pleas of Westmoreland
County (trial court) that granted Paul A. Felbaum's (Licensee) statutory appeal
from a one-year suspension of his operating privilege imposed pursuant to Section
1532 of the Vehicle Code, 75 Pa. C.S. §1532(b)(3) and Article IV(a)(2) of the
Driver's License Compact (Compact), 75 Pa. C.S. §1581. Agreeing with the trial
court that the disposition of Licensee's Illinois driving under the influence (DUI)
charge does not constitute a "conviction" for purposes of the Compact, we affirm.

On April 29, 2003, Licensee, a Westmoreland County resident, was
charged with DUI in the state of Illinois. Licensee pled guilty to the DUI charge in
the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois
(Champaign County Court). The Champaign County Court accepted Licensee's

guilty plea, ordered Licensee serve a 24-month period of court supervision and
deferred entry of judgment for 24 months.1 Reproduced Record (R.R.) at 48a.

Thereafter, the state of Illinois reported a DUI conviction for Licensee
to PennDOT. PennDOT informed Licensee his operating privilege would be
suspended for one year based upon the report of conviction from Illinois. Licensee
appealed to the trial court.

At a de novo hearing before the trial court, PennDOT offered into
evidence a packet of certified documents, including the Illinois "report of
conviction." R.R. at 43a. In response, Licensee testified on his own behalf.

1 The Illinois statute which permits a court to defer judgment and order court supervision
states, as pertinent:

(c) The court may, upon a plea of guilty ... defer further
proceedings and the imposition of a sentence, and enter an order
for supervision of the defendant .... If the defendant is not barred
from receiving an order for supervision as provided in this
subsection, the court may enter an order for supervision after
considering the circumstances of the offense, and the history,
character and condition of the offender, if the court is of the
opinion that:

(1) the offender is not likely to commit further crimes;

(2) the defendant and the public would be best served if the
defendant were not to receive a criminal record; and

(3) in the best interests of justice an order of supervision is more
appropriate than a sentence otherwise permitted under this Code.

730 ILCS §5/5-6-1(c).
2

Licensee conceded he pled guilty to the Illinois DUI charge, but asserted, because
the Champaign County Court placed him on court supervision and deferred entry
of judgment, the disposition of his case did not constitute a "conviction" for
purposes of the Compact. He offered into evidence the Champaign County Court's
sentencing order, which states, "[Licensee] and the public will be best served if
[Licensee] does not receive a criminal record ...." R.R. at 48a. Ultimately, the
trial court determined Licensee was not "convicted" for purposes of the Compact,
and granted his appeal. PennDOT now appeals to this Court.2

Article II of the Compact defines "conviction" as

[A] conviction of any offense related to the use or
operation of a motor vehicle which is prohibited by state
law, municipal ordinance or administrative rule or
regulation or a forfeiture of bail, bond or other security
deposited to secure appearance by a person charged with
having committed any such offense and which conviction
or forfeiture is required to be reported to the licensing
authority.

75 Pa. C.S. §1581, Article II(c). Notably, the Article does not define the point in
the judicial process at which a conviction occurs. Lueth v. Dep't of Transp.,
Bureau of Driver Licensing, 785 A.2d 133, 137 (Pa. Cmwlth. 2001). Further,
Article III states:

2 In driver's license suspension proceedings, our review is limited to determining whether
the trial court's findings are supported by substantial evidence and whether it committed an error
of law or abused its discretion. Dep't of Transp., Bureau of Driver Licensing v. Moss, 605 A.2d
1279 (Pa. Cmwlth. 1992).
3

The licensing authority of a party state shall report each
conviction of a person from another party state occurring
within its jurisdiction to the licensing authority of the
home state of the licensee. Such report shall clearly
identify the person convicted, describe the violation
specifying the section of the statute, code or ordinance
violated, identify the court in which action was taken,
indicate whether a plea of guilty or not guilty was entered
or the conviction was a result of the forfeiture of bail,
bond or other security and shall include any special
findings made in connection therewith.

75 Pa. C.S. §1581, Article III. Article IV(a)(2) of the Compact states that
PennDOT shall give the same effect to out-of-state conduct as it would if such
conduct occurred in Pennsylvania where the out-of-state conduct results in a
conviction for DUI. 75 Pa. C.S. §1581, Article IV(a)(2).

PennDOT argues Licensee failed to present "clear and convincing"
evidence to rebut its prima facie evidence that he was convicted of DUI in Illinois.
It further contends the court supervision before judgment disposition of Licensee's
DUI charge under Illinois law, pursuant to which Licensee pled guilty, constitutes
a "conviction" for purposes of Article IV(a)(2) of the Compact. We disagree.

In
Lueth and Laughlin v. Dep't of Transp., Bureau of Driver
Licensing, 719 A.2d 850 (Pa. Cmwlth. 1998) this Court addressed a similar issue:
whether a probation before judgment disposition of a DUI charge under Maryland
law, which required a finding of guilty, constituted a "conviction" for purposes of
Article IV(a)(2) of the Compact.

4

In
Laughlin, Robert Laughlin, a Pennsylvania licensed driver, pled
guilty to a DUI charge in Maryland with the understanding, if he completed a drug
and alcohol program, the district court would grant him "probation before
judgment." After Laughlin's guilty plea, the state of Maryland forwarded
PennDOT a report of conviction. PennDOT sent Laughlin a notice of suspension,
and, on appeal by Laughlin, the trial court sustained his appeal. PennDOT
appealed to this Court, asserting, because Laughlin pled guilty, the probation
before judgment disposition of his DUI charge constituted a "conviction" for
purposes of Article IV of the Compact. This Court disagreed, noting, pursuant to
Maryland law, Laughlin's discharge from probation was "without judgment of
conviction and is not a conviction for purposes of any disqualification ... imposed
by law because of conviction of crime ...." Id. at 852 (citing Md. Code Ann. art.
27, §641). Consequently, we stated:

Therefore, giving full faith and credit to Maryland's law
... we hold that [PennDOT's] suspension of Laughlin's
driver's license was, in these circumstances, an
impermissible disqualification from his motor vehicle
operating privileges, since his discharge in Maryland
cannot be a conviction for such purposes.

Laughlin, 719 A.2d at 852.

Thereafter, in Lueth, Michael Brian Lueth was charged with driving
while intoxicated, and was convicted following trial. He applied to Maryland's
"probation prior to judgment" program, pursuant to which the court placed him on
24 months' probation and stayed entry of judgment pending his completion of the
program. Upon receiving notice of Lueth's conviction from Maryland, PennDOT
5

suspended his operating privilege. Lueth appealed the suspension, and the trial
court dismissed his appeal. On appeal, we reversed, concluding that, based on
Laughlin, the probation before judgment disposition did not constitute a
"conviction" for purposes of Article IV of the Compact because judgment was not
entered. Significantly, we determined, even though Lueth had yet to successfully
complete the probation program, his entry into the program did not constitute a
conviction.

Here, as in Lueth and Laughlin, Licensee pled guilty, received court
supervision, and entry of judgment was deferred pending his successful completion
of the court supervision program. The Maryland statute concerning the effect of a
successful discharge from probation at issue in Lueth and Laughlin is nearly
identical to the Illinois statute regarding discharge from court supervision. The
Illinois statute provides:

§ 5-6-3.1. Incidents and Conditions of Supervision.

(a) When a defendant is placed on supervision, the court
shall enter an order for supervision specifying the period
of such supervision, and shall defer further proceedings
in the case until the conclusion of the period.

* * * *
(d) The court shall defer entering any judgment on the
charges until the conclusion of the supervision.

(e) At the conclusion of the period of supervision, if the
court determines that the defendant has successfully
complied with all of the conditions of supervision, the
6

court shall discharge the defendant and enter a judgment
dismissing the charges.

(f) Discharge and dismissal upon a successful conclusion
of a disposition of supervision shall be deemed without
adjudication of guilt and shall not be termed a conviction
for purposes of disqualification or disabilities imposed by
law upon conviction of a crime. ...

730 ILCS §5/5-6-3.1 (emphasis added). This provision clearly provides Licensee's
discharge from supervision is without adjudication of guilt and does not amount to
a conviction that would support "any disqualification" imposed by law due to such
a crime. See People v. Bushnell, 101 Ill. 261, 461 N.E.2d 980 (1984) (successful
completion of supervision results in dismissal of the charges and no judgment of
conviction is entered). As a result, in accordance with Illinois law, no conviction
exists for purposes of imposing a Compact suspension. Further, as in Lueth, the
fact that Licensee has not yet completed the court supervision program does not
alter the result as entry into court supervision is not a conviction. Thus, we agree
with the trial court that the court supervision before judgment disposition does not
constitute a "conviction" for purposes of the Compact. Lueth; Laughlin.3

3 Citing Kovalcin v. Dep't of Transp., Bureau of Driver Licensing, 781 A.2d 273 (Pa.
Cmwlth. 2001), PennDOT argues Licensee's admission that he paid a fine in connection with his
court-ordered supervision, R.R. at 25a., coupled with his guilty plea, establishes a conviction.
Kovalcin is inapposite. There, we held a licensee's payment of a fine in West Virginia for
leaving the scene of an accident, constituted a conviction under Section 6501 of the Vehicle
Code, 75 Pa. C.S. §6501. Notably, in that case, after PennDOT offered documentary evidence of
the licensee's conviction in the form of an abstract of the conviction, the licensee offered no
rebuttal evidence of any kind. Unlike in Kovalcin, Licensee here offered into evidence the
sentencing order demonstrating he received court supervision and the court deferred entry of
judgment.
Further, contrary to PennDOT's assertion, Section 6501 of the Vehicle Code, 75 Pa. C.S.
§6501, is not applicable here because Licensee entered his guilty plea in Illinois and, pursuant to
Illinois law, a person may plead guilty and receive court supervision. 730 ILCS §5/5-6-1(c).
7

PennDOT also asserts, because Illinois reported the offense as a
conviction, under the Compact and Pennsylvania law, it must be treated as a
conviction by the Pennsylvania licensing authority. We rejected the same
argument in Lueth, recognizing there that, although the state of Maryland provided
notice of Lueth's conviction to PennDOT, such notice amounted to
"administrative," not judicial notice. Id. at 137. As a result, we determined the
fact that Maryland transmitted a notice of conviction to PennDOT did not control
the outcome of the case.

Here, as in Lueth, the report of conviction from the state of Illinois is
not dispositive. Despite administrative notification of conviction, the Champaign
County Court's sentencing order clearly indicates the court deferred entry of
judgment, and no record of conviction exists. R.R. at 48a. This determination is
consistent with Illinois jurisprudence. In People v. Rozborski, 751 N.E.2d 644 (Ill.
App. Ct. 2001) the Appellate Court of Illinois stated:

In placing a defendant on supervision, a court does not
impose a sentence; indeed, it leaves open whether the
defendant will ever be sentenced at all. If the defendant
completes supervision successfully, the charges are
dismissed and the result resembles an acquittal ...
otherwise, the defendant may be found guilty and
sentenced. Until these matters are resolved, there is no
final judgment.

Rozborski, 751 N.E.2d at 649-50 (citation omitted). Further, the Illinois Supreme
Court defines "judgment of conviction" as the trial court's entry of judgment on a
verdict of guilty. People v. Franklin 135 Ill.2d 78, 552 N.E.2d 743 (1990). No
judgment on a verdict of guilty existed in Illinois at the time PennDOT suspended
8

Licensee's license. Thus, because Licensee did not stand convicted under Illinois
law, and because only the reporting of convictions triggers the Compact, PennDOT
impermissibly suspended Licensee's operating privilege. Lueth.

Based on the foregoing reasons, we affirm.

ROBERT
SIMPSON,
Judge
9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul A. Felbaum

:

:

v.

: No. 1055 C.D. 2004

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing,
:

Appellant

:

O R D E R

AND
NOW,
this
5th day of November, 2004, the order of the Court of
Common Pleas of Westmoreland County is AFFIRMED.

ROBERT
SIMPSON,
Judge

IN
THE
COMMONWEALTH
COURT OF PENNSYLVANIA
Paul A. Felbaum

:

:

v.

: No. 1055 C.D. 2004

:
Submitted:
October
1,
2004
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing,
:

Appellant

:
BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
CONCURRING OPINION
BY SENIOR JUDGE McCLOSKEY
FILED: November 5, 2004

I concur with the result reached by the majority based upon the
present state of the law. However, I write separately to reaffirm my beliefs as
expressed in my dissent in Lueth v. Department of Transportation, Bureau of
Driver Licensing, 785 A.2d 133 (Pa. Cmwlth. 2001). As such, I would conclude
that Paul A. Felbaum's (Licensee's) plea of guilty in the State of Illinois
constituted a conviction sufficient to warrant a suspension of his operating
privileges within this Commonwealth. Additionally, I would conclude that this
Commonwealth is not bound by the subsequent manner in which Illinois chooses
to treat a person convicted of DUI.

In this regard, I note that the state where the occurrence took place, in
this case Illinois, is the only state which can decide if the person committed the act.

As noted by the majority in its opinion, at the de novo hearing before the trial
court, Licensee himself admitted that he pleaded guilty to the Illinois DUI charge.
Nevertheless, despite the Illinois court's acceptance of that plea, the Illinois court
directed Licensee to serve a twenty-four month period of court supervision and
deferred entry of judgment. The majority relies on this deferred entry of judgment,
albeit correctly under Lueth, to conclude that Licensee did not have a qualifying
conviction sufficient to warrant a suspension of his operating privileges in this
Commonwealth. Once again, I reiterate my belief that the state where the act took
place and the subsequent manner in which said state chooses to treat that act
cannot and should not be able to control the consequences of the act in this
Commonwealth.

JOSEPH F. McCLOSKEY, Senior Judge

JFM-12