IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven Andrew Maulfair, : Petitioner : : No C.D v. : Submitted: December 12, 2014 : Pennsylvania Game Commission, : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: February 5, 2015 Steven Andrew Maulfair (Maulfair) asks whether the Pennsylvania Game Commission (Commission) erred in ordering the three-year revocation of his hunting and trapping privileges based on his guilty pleas to five counts of violating Section 2307(a) of the Game and Wildlife Code (Code) (unlawful taking or possession of game or wildlife), 34 Pa. C.S. 2307(a). Maulfair argues the threeyear revocation is an excessive punishment, and the Commission s findings are erroneous. Upon review, we affirm. I. Background In March 2014, the Commission notified Maulfair that, as a result of his convictions under the Code, it denied [Maulfair] the privilege to secure a license or to hunt or take game or wildlife anywhere in this Commonwealth with or without a license from July 1, 2014 through June 30, Reproduced Record

2 (R.R.) at 1a. Maulfair filed an administrative petition for review, challenging the five-year revocation. A hearing ensued at which Wildlife Conservation Officer John Veylupek (WCO) and Maulfair testified. Also, the hearing officer received a certified packet of documents, which included the Commission s copies of five citations filed against Maulfair for alleged violations of 34 Pa. C.S. 2307(a), as well as corresponding docket sheets showing Maulfair pled guilty to each of the five charged violations. After the hearing, the hearing officer issued a decision in which he made the following findings summarizing the testimony. The WCO testified Maulfair coordinated a trip for several bear hunters from Pennsylvania and Maryland to Quebec, Canada. Thereafter, in the spring of 2013, U.S. Fish & Wildlife Service Agents contacted the WCO and informed him that Maulfair unlawfully imported five bear hides into the U.S. from Canada. The WCO explained that Maulfair agreed to provide taxidermy services for hunters on the trip, and Maulfair apparently transported the bear hides from Canada to his taxidermy shop in Pennsylvania. The WCO testified Maulfair unlawfully executed import permits for each animal. In April 2013, the WCO applied for and obtained a search warrant for Maulfair s taxidermy shop; a subsequent search yielded one of the five bear hides. The WCO testified he interviewed Maulfair, who provided an account consistent with that provided by the U.S. Fish & Wildlife Service Agents. The WCO testified 2

3 he filed five citations against Maulfair for alleged violations of 34 Pa. C.S. 2307(a). On cross-examination, the WCO acknowledged Maulfair was permitted to bring the bears into the U.S. For his part, Maulfair testified he worked as a taxidermist for 12 years, and he maintains a shop in Elizabethtown. He pled guilty to the five citations referenced above based on statements made by the WCO. To that end, Maulfair testified the WCO gave him the impression that he would not suffer revocation of his hunting license as a result of the convictions. As to the trip to Canada, Maulfair testified he coordinated a trip for approximately five hunters to hunt bear and to fish. He was assisted by an outfitter in Canada. Maulfair testified the problems began when the hunters were stopped at the U.S.-Canadian border while in possession of bear meat without the appropriate exportation documents. Maulfair testified he hunted in Canada 60 to 70 times, and he had significant experience transporting bears and other wildlife internationally. Maulfair testified he erroneously believed the Canadian outfitter had the appropriate export permits for the animals. Maulfair testified he purchased export permits from a store, and he signed the names of the five hunters on the permits because the hunters already departed camp. Maulfair testified he was permitted to enter the U.S. with the bear hides. In his testimony, Maulfair claimed it was the hunters responsibility to know and understand applicable laws, rules and regulations. He requested 3

4 leniency on the ground that the five-year revocation of his hunting and trapping privileges was excessive. In closing, the WCO testified the five hunters believed Maulfair was responsible for compliance with rules and regulations. The WCO further stated he made no promises concerning revocation but, based on the facts of this case, he would not object to a reduction in the previously ordered five-year revocation. In his conclusions of law, the hearing officer explained the Code provided the Commission with the authority to revoke any hunting or furtaking license based on Code violations. 34 Pa. C.S. 929, Here, Maulfair pled guilty to multiple violations of 34 Pa. C.S. 2307(a). Thus, the Commission had authority to revoke Maulfair s license. For a first offense, the Commission had authority to revoke the offender s hunting or taking privileges for three years. See 34 Pa. C.S. 2742(a). 1 The hearing officer explained the sole issue was whether Maulfair s five-year hunting and furtaking license revocation should be upheld. The hearing 1 Pursuant to Section 929(a) of the Code: Except as otherwise provided in this title, any hunting or furtaking license granted under the authority of this title may be revoked by the [C]ommission when the holder of the license is convicted of an offense under this title with each offense constituting a separate violation subject to separate revocation. The [C]ommission may refuse to grant to that person any permit or registration and may deny any privilege granted by these documents for a period not exceeding five years unless otherwise provided in this title. 34 Pa. C.S. 929(a) (emphasis added). 4

5 officer stated Maulfair received five citations for violations of 34 Pa. C.S. 2307(a), which states: It is unlawful for any person to aid, abet, attempt or conspire to hunt for or take or possess, use, transport or conceal any game or wildlife unlawfully taken or not properly marked or any part thereof, or to hunt for, trap, take, kill, transport, conceal, possess or use any game or wildlife contrary to the provisions of this title. Id. Further, Section of the Commission s Standard Operating Procedures, Revocation Gauge, states that the recommended revocation period for the unlawful possession and transport of big game is one year. The Revocation Gauge appears to recommend the addition of one year of revocation for each additional animal. Here, Maulfair unlawfully imported five bear hides into the U.S. This importation was unlawful because Maulfair illegally affixed the signatures of the appropriate hunters on the required export permits. Thus, Maulfair s possession and transport of the bear parts violated 34 Pa. C.S. 2307(a). The hearing officer explained Maulfair s conduct was particularly troublesome because he was instrumental in coordinating a hunting trip for several U.S. citizens to Quebec. The hearing officer pointed out that Maulfair possessed significant experience in hunting and traveling to and from Canada. With this experience, it was fair to conclude the five hunters reasonably relied on Maulfair to ensure the appropriate licenses and permits were in place. By his own admission, however, Maulfair did not research applicable laws, rules and regulations relating to taking and transporting Canadian bears into the U.S. 5

6 Nevertheless, the hearing officer explained, upon learning of the problem, Maulfair took appropriate steps to rectify the situation. He secured the appropriate export permits for each animal and only affixed the mark of the hunters on the forms because they already reentered the U.S. Further, Maulfair fully cooperated in the investigations by the WCO and the U.S. Fish & Wildlife Service, and he was permitted to transport the bear hides into the U.S. after agents stopped him at the border. Ultimately, the hearing officer determined a three-year license revocation was proper. Based on the facts presented, the hearing officer believed there were sufficient mitigating circumstances to justify reduction of the five-year revocation imposed by the Commission. The hearing officer found it significant that the WCO did not object to such a reduction. As a result, the hearing officer recommended the Commission rescind its five-year revocation of Maulfair s hunting and trapping privileges and instead impose a three-year period of revocation. Thereafter, the Commission s Executive Director notified Maulfair that he concurred with the hearing officer s recommendation that a three-year revocation of Maulfair s hunting and trapping privileges was appropriate. Maulfair filed a petition for review to this Court. 6

7 II. Discussion On appeal, 2 Maulfair presents two issues. First, he argues the threeyear revocation of his hunting and trapping privileges is an excessive punishment. Additionally, he asserts the Commission s findings are merely recitations of the testimony, and in some cases are not supported by substantial evidence. A. Excessive Punishment 1. Contentions In asserting the three-year revocation is an excessive punishment, Maulfair presents the following argument. He was charged with possession in Pennsylvania of five bears imported from Canada. All five bears were harvested and owned by others, and Maulfair transported the bears because he had a freezer in his truck. Maulfair also agreed to perform taxidermy services. He pled guilty to five charges (one for each bear), even though there was no judicial determination that he illegally took the bears from Quebec, because the WCO told him that by doing so, he would not suffer revocation of his hunting license. He received a fine of $1,000 for each bear, and then received notice of a five-year license revocation, later reduced to three years. Maulfair contends he had many mitigating circumstances. He was charged, prematurely, under the wrong section of the law, and relied to his detriment on the WCO s statements. He had no ownership right or interest in the 2 Our review of a Commission determination is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Spence v. Pa. Game Comm n, 850 A.2d 821 (Pa. Cmwlth. 2004). 7

8 bears. The statutory term possess generally connotes some claim of ownership. See 34 Pa. C.S While it is true Maulfair literally possessed the bears in Pennsylvania, he had them only temporarily for purposes of performing taxidermy services. Also, before entering the U.S., he offered to discard the bears to avoid problems, and made full disclosure at the border. He was allowed to enter the U.S. with the bears. When he was charged, four of the bears were in possession of their owner. No one else was charged, and no bear was confiscated. Maulfair acknowledges he used poor judgment in signing the names of the hunters to the export permits, but he asserts he had no practical choice. Maulfair further maintains that this Court holds that, by signing a field acknowledgment of guilt form, a hunter is barred from collaterally attacking the violation in administrative proceedings for license revocation. See Marich v. Pa. Game Comm n, 676 A.2d 1325 (Pa. Cmwlth. 1996). He argues the field acknowledgment of guilt form contains explicit language warning the hunter that by acknowledging guilt, he may also suffer a license revocation. Here, however, Maulfair did not sign a field acknowledgment. The citations issued to him contain no such warning. See R.R. at 56a, 60a, 64a, 68a, 72a. Thus, Marich and the cases it cites are distinguishable. Maulfair further asserts, even where a guilty plea to the underlying charge forecloses the ability to challenge it in the revocation proceeding, the procedures allow a hunter to try to prove there are mitigating circumstances that suggest a revocation period is excessive. He contends there could be no more 8

9 compelling mitigating circumstance than a lack of guilt as to the underlying violation. Previously, Maulfair asserts, common pleas courts heard revocation appeals de novo. In Commonwealth v. Eller, 8 Pa. D. & C.3d 289 (C.P. Somerset 1977), the common pleas court noted that a guilty plea, while evidence of a violation, did not foreclose inquiry into guilt. Otherwise, a revocation appeal would be fruitless, and the court would be powerless to examine the Commission s discretion. Here, Maulfair maintains, it is difficult, if not impossible, to argue mitigation without reference to the facts involved in the incident that gave rise to the charge. He was charged with violating 34 Pa. C.S. 2307(a). However, it appears the proper charge was under Section 2307(c), which specifically prohibits possession of wild animals from another country that are unlawfully exported. Maulfair contends the hearing officer described the violation as illegally affixing the signatures of others to the export permits. The hearing officer then cited, as mitigating circumstances, Maulfair s cooperation with authorities, and his steps to rectify the situation by securing the permits and affixing the signatures on them. Maulfair asserts in Eller, the common pleas court concluded the defendant s payment of a fine was a sufficient penalty, and it reversed the Commission s one-year license revocation. He argues his revocation should be reduced to no more than one year in light of the above circumstances and the fact that the charges arose out of a single event. 9

10 2. Analysis The proceeding by the Commission is a civil, administrative proceeding relating to the revocation of hunting privileges. Pfingstl v. Pa. Game Comm n, 531 A.2d 821 (Pa. Cmwlth. 1987). Further, an individual may not collaterally attack his admitted violations of the Code in an appeal from an administrative action that resulted in a revocation of his hunting privileges. Levan v. Pa. Game Comm n, 429 A.2d 1241 (Pa. Cmwlth. 1981); Malishaucki v. Pa. Game Comm n, 427 A.2d 787 (Pa. Cmwlth. 1981); see also Pfingstl. Thus, although Maulfair repeatedly asks this Court to review the facts underlying his guilty pleas to the Code violations, as in Malishaucki, [t]he challenge which he wishes to mount here should have been made directly against the charge[s] of [Code] violation[s] as to which he acknowledged his guilt. Id. at 788. At this point in time, we may not consider whether Maulfair should have acknowledged violating the Code. Id. To that end, it is undisputed that Maulfair pled guilty to five violations of 34 Pa. C.S. 2307(a). Thus, he cannot challenge the facts underlying his admitted Code violations in his appeal from the Commission s action revoking his hunting privileges. Levan; Malishaucki; see also Pfingstl. This includes Maulfair s claim that the WCO led him to believe he would not suffer revocation if he pled guilty to the charged violations. Indeed, this Court holds such a claim is properly made directly against the charge of a Code violation, not in an administrative revocation proceeding. Marich; Pfingstl; Malishaucki. 10

11 Nevertheless, Maulfair attempts to distinguish cases such as Marich on the ground that in those cases the petitioners signed Acknowledgement of Guilt forms that contained a specific warning that a guilty plea could result in the suspension or revocation of the individual s hunting privileges, and the citations to which Maulfair pled guilty here contained no such warnings. This argument fails. First, our review of the record reveals that Maulfair did not raise this issue below. See R.R. at 4a-5a (administrative petition for review); R.R. at 6a-54a (hearing transcript). Thus, this issue is waived. See e.g., Telwell, Inc. v. Pub. Sch. Employees Ret. Sys., 88 A.3d 1079 (Pa. Cmwlth. 2014) (failure to raise issue before agency results in waiver). Moreover, while Marich points out that the petitioner in that case signed a citation that specifically indicated that, as a result of his guilty plea, he could face suspension or revocation of his hunting privileges, it does not state that such a warning is required. 3 Analogously, in the context of a driver s license revocation, this Court holds that a trial court s failure to warn a licensee that a guilty plea may result in the collateral civil consequence of a license revocation 3 The Commission asserts that, although the Pennsylvania Game Commission s copies of the five summary citations are accurately portrayed in the record (Reproduced Record at 56a- 57a, 60a-61a, 64a-65a, 68a-69a, and 72a-73a), Maulfair fails to accurately portray the content of the notices contained within the defendant s copies of these same citations that were issued to him. Indeed, the Commission argues, there are actually six copies to each citation (1 original and 5 carbon copies), the back pages of which are custom tailored to their intended recipient, i.e., the magisterial district judge, defendant (two copies), Commission, officer (affiant), or the public access copy. Importantly, the Commission contends, each of the five citations issued to Maulfair contain the following notice on the back side of the defendant s copy: If you plead guilty or are found guilty of an offense under the Game and Wildlife Code... your privileges to hunt and trap anywhere in the Commonwealth may be suspended or revoked. Respondent s Br. at

12 does not invalidate the revocation. See Spagnoletti v. Dep t of Transp., Bureau of Driver Licensing, 90 A.3d 759 (Pa. Cmwlth. 2013). Finally, Maulfair s reliance on Eller, a 1977 common pleas court case, is misplaced. There, the common pleas court relied on former Section 315 of the Game Law 4 when it conducted a de novo hearing on an appeal of a Commission revocation decision and overturned a one-year revocation of an individual s hunting privileges based on its independent determination that payment of a fine was a sufficient penalty in light of the facts presented before it. Because Eller relied on a now-repealed provision of the former Game Law that authorized common pleas courts to conduct de novo hearings in appeals of Commission revocation decisions, it is not applicable here. Further, in Eller, the common pleas court examined, at length, the underlying facts that gave rise to the hunter s guilty plea in considering whether revocation was appropriate. Thus, Eller is at odds with more recent decisions of this Court that preclude a collateral attack on an individual s guilty plea in the context of an administrative revocation appeal. B. Hearing Officer s Findings 1. Contentions Maulfair next contends the hearing officer s findings are not really findings at all, but rather are recitations of the testimony and evidence. As a result, 4 Act of June 3, 1937, P.L. 1225, as amended, 34 P.S The Game Law was repealed by the Act of July 8, 1986, P.L

13 he asserts, all the findings are necessarily supported by the record. Thus, he maintains, it is somewhat difficult to examine the findings in the context of the substantial evidence rule. Nevertheless, Maulfair argues that in Findings of Fact Nos. 18 and 19, the hearing officer recites Maulfair s testimony that he pled guilty to the citations because the WCO led him to believe his license would not be revoked. In Finding of Fact No. 32, he recites the WCO s comment in closing that he made no promises regarding revocation. If Maulfair s testimony is fact, he contends, then reliance on the WCO s testimony would seem to be a mitigating factor. It does not appear, however, that the hearing officer resolved this conflicting testimony. Maulfair also argues Findings of Fact Nos. 29 and 31 appear contradictory in that the hearing officer did not determine whom he felt was responsible to know Quebec law, Maulfair or the hunters. This conflict was also unresolved. Further, Maulfair contends Findings of Fact Nos. 4 and 5 are not supported by substantial evidence as there is no basis in the record to determine the bears were unlawfully imported. Maulfair asserts it is undisputed that he was allowed to cross the border with the bears after full disclosure of the facts and circumstances. This fact negates a finding of illegal importation. There is no evidence Maulfair violated 34 Pa. C.S. 2307(a); rather, if the bears were illegally imported, he would be in violation of 34 Pa. C.S. 2307(c). 13

14 2. Analysis Contrary to Maulfair s assertions, we discern no error in the hearing officer s findings. In the findings referenced by Maulfair, the hearing officer merely summarized the conflicting testimony of the two witnesses who testified at the hearing on two issues. Specifically, the two sets of challenged findings state: 18. [Maulfair] testified that he pleaded guilty to the five (5) citations referenced above based upon statements made by [the WCO]. 19. Specifically, [Maulfair] related in his testimony that [the WCO] gave [Maulfair] the impression that he would not be subject to revocation for the convictions. * * * * 32. [The WCO] related further in closing that he made no promises concerning revocation but that, based on the facts of this case, he would have no objection to a reduction in the previously-ordered revocation. * * * * 29. [Maulfair] asserted in his testimony that it was the responsibility of the hunters to know and understand the applicable laws, rules, and regulations. * * * * 31. In closing, [the WCO] testified that the five hunters believed that [Maulfair] was responsible for compliance with rules and regulations. Hearing Officer s Dec., 6/10/14, Findings of Fact (F.F.) Nos , 32; 29,

15 Ultimately, in considering the appropriate penalty for the five Code violations to which Maulfair pled guilty in light of the evidence presented, the hearing officer explained (with emphasis added): In this case, [Maulfair] unlawfully imported five (5) bear hides into this count[r]y. The importation of the hides was unlawful because [Maulfair] illegally affixed the signatures of the appropriate hunters on the required export permits. Therefore, [Maulfair s] possession and transport of the bear parts was illegal as contrary to the terms of 34 Pa.C.S. 2307(a). [Maulfair s] conduct in this case is particularly troublesome in that he was instrumental in coordinating a hunting trip for several U.S. citizens into Quebec, Canada. [Maulfair] has significant experience in hunting and traveling to and from Canada, having done so between 60 and 70 times. With this experience, it seems reasonable to conclude that the five hunters reasonably relied on [Maulfair] to make sure the appropriate licenses and permits were in place. By his own admission, however, [Maulfair] failed to so much as even research the applicable laws, rules and regulations relating to the taking and transport of Canadian bears into this country. It can be said, however, that [Maulfair], upon learning of the problem, took appropriate steps in order to rectify the situation. He secured the appropriate export permits for each animal and only affixed the mark of the hunters on the forms on account of them already reentering the United States. Furthermore, [Maulfair] cooperated fully in the investigation of [the WCO] as well as the United States Fish & Wildlife Service agents, and was even permitted to bring the hides into this country after being stopped at the border by the agents. In consideration of the five (5) violations to which [Maulfair] pleaded guilty, a three (3) year license revocation is appropriate. This Officer believes that in-light [sic] of the testimony in this case as well as the above, there are sufficient mitigating circumstances so as to justify a reduction. Furthermore, [the WCO] testified that he would not object to such a reduction. Your undersigned takes into account the 15

16 personal and professional opinions of the Commission s duly sworn law enforcement officials. Consequently, your undersigned Hearing Officer does not concur with the [Commission s] recommendation of five (5) years. Hearing Officer s Dec. at 5-6. Thus, contrary to Maulfair s assertion, the hearing officer did resolve the conflicting testimony as to who he believed was responsible for complying with applicable rules and regulations Maulfair, rather than the hunters. Further, as set forth above, the issue of whether the WCO led Maulfair to believe that he would not suffer revocation of his hunting privileges by pleading guilty to the citations is not properly raised in the context of this administrative revocation appeal, but rather should have been made directly against the charges of the [Code] violations to which [he] acknowledged [his] guilt. Marich, 676 A.2d at 1328 (quoting Levan, 429 A.2d at 1242); see also Pfingstl. In sum, the hearing officer made the determinations necessary to resolve the ultimate issue: the proper punishment for Maulfair s five admitted Code violations. Maulfair also takes issue with Findings of Fact Nos. 4 and 5, that he violated the Code by possessing bear parts unlawfully imported from Canada (F.F. No. 4), and that his unlawful importation violated 34 Pa. C.S. 2307(a) (F.F. No. 5). He asserts there is no basis in the record to conclude that the bears were unlawfully imported. Contrary to Maulfair s assertions, these findings are based on the undisputed fact that Maulfair pled guilty to five violations of 34 Pa. C.S. 2307(a). As explained above, an individual may not collaterally attack his admitted violations of the Code in an appeal from an administrative action that resulted in a revocation of his hunting privileges. Levan; Malishaucki. Maulfair s 16

17 argument on this point is nothing more than an improper collateral attack on his underlying convictions. As such, this argument fails. Based on the foregoing, we affirm. ROBERT SIMPSON, Judge 17

18 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven Andrew Maulfair, : Petitioner : : No C.D v. : : Pennsylvania Game Commission, : Respondent : O R D E R AND NOW, this 5 th day of February, 2015, the order of the Pennsylvania Game Commission is AFFIRMED. ROBERT SIMPSON, Judge