J-S28044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 TODD DANIEL HOOVER,                       :
                                           :
                    Appellant.             :    No. 1893 MDA 2017


              Appeal from the Order Entered, October 31, 2017,
             in the Court of Common Pleas of Lycoming County,
            Criminal Division at No(s): CP-41-CR-0002120-2012.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 31, 2018


      Because the majority memorandum allows a trial court to consider facts

that occurred after a hearing as a basis for reconsideration of an order, I must

dissent. By law, a trial court generally has the ability to modify or rescind an

order within 30 days after its entry, if no appeal has been taken or allowed.

42 Pa. C.S.A. § 5505,    However, that ability is limited “except as otherwise

provided or prescribed by law.” Id. Here, I believe the court was limited from

rescinding its order of September 29, 2017, as prescribed by law, because the

trial court based the reconsideration of its order on facts that occurred after it

entered the order on September 29, 2017.        When reconsidering its order, I

believe the trial court was limited to facts that were of record in the proceeding

that took place on September 29, 2017. See e.g. M.P. v. M.P., 54 A.3d 950,
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955 (Pa. Super. 2012) (trial court abused its discretion by relying on

information it obtained through its own internet search that took place after

the hearing had been concluded); Eck v. Eck, 475 A.2d 825, 827 (Pa. Super.

1984) (a trial court may not consider facts or evidence outside of the record

in making its determination, citing Cf. Commonwealth ex rel. Bowers v.

Widrig, 464 A.2d 1299, 1302 (Pa. Super. 1983)). Additionally, this Court

may not uphold a trial court's order on the basis of off-the-record facts. Eck,

475 A.2d at 827 (citing In re Frank, 423 A.2d 1229 (Pa. Super. 1980)).

Because the trial court considered later developed facts, i.e. Hoover’s

subsequent DUI arrest, I believe it abused its discretion, and I would reverse

the order vacating Hoover’s release from IPP and reinstate the release order

of September 29, 2017.

      The decision to release Hoover from IPP was made on September 29,

2017, when President Judge Butts concluded that Hoover complied with all of

his sentencing conditions and demonstrated that he was no longer in need of

supervision. The order granting early release was docketed on the afternoon

of September 29, 2017.

      Once she was told by Adult Probation on October 2, 2017 that Hoover

received new DUI charges on the evening of September 29, 2017, after she

entered her order releasing him from IPP, the trial judge granted

reconsideration of its order and scheduled a hearing to consider whether it




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should vacate its order releasing Hoover from supervision “in light of the new

charges.” T.C.O 1/11/18 at 2.

       At the reconsideration “hearing,” on October 23, 2017, where the court

made no record, the court clearly “opened the record” and considered facts

(i.e. the subsequent DUI arrest) that occurred after the September 29, 2017

hearing. On October 26, 2017 the court rescinded its order releasing Hoover

from IPP, and admitted that the reason for vacating its previous order was

due to Hoover’s actions that occurred after the original order was entered,

namely Hoover’s new charges for DUI.1

       In Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa. 2007), the

Supreme Court of Pennsylvania observed the limited judicial power to

reconsider or correct errors in a sentence. The court noted that the inherent

power to correct errors does not extend to reconsideration of a court's exercise

of sentencing discretion.       Id.   A court may not vacate a sentencing order

merely because it later considers a sentence too harsh or too lenient. Id.




____________________________________________


1 The timing of the court’s order dated October 26, 2017, but not entered on
the docket until October 31, 2017, is not a concern of mine. I agree that on
October 2, 2017 the trial court specifically granted reconsideration of the
September 29, 2017 order, which gave the court 120 days to enter an order
on the reconsideration motion. I question whether Adult Probation had the
authority to request reconsideration, as it was not the attorney of record for
the Commonwealth, and it appears the request was made ex parte, but
Hoover did not challenge the request for reconsideration on those grounds,
and the court has the power sua sponte to grant reconsideration of its own
order.

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       Here, it appears the court reconsidered its order to release Hoover from

early supervision as “too lenient”, in light of Hoover’s actions after the court

entered its order releasing him from IPP. This is not permitted.

       I do not, in any way, condone the actions of Hoover, who was arrested

for another DUI within a matter of hours after being granted early release

from IPP. I also share in the concerns of Judge Lovecchio, who feared Hoover

might kill himself or somebody else and showed complete disregard for the

safety of the public and everyone else and himself. N.T. 10/12/2017 at 3-4.

       Although statutorily the court could reconsider its order within 30 days,

I do not believe the court has the power to consider a defendant’s conduct,

which occurs within 30 days of the entry of an order, as a basis to undo a

previous order. That is not the intent of Pa. C.S.A. § 5505. Allowing such

reconsideration would make every order releasing a defendant from IPP

conditional for 30 days, so long as a defendant does not misbehave for the

next month.2 Instead, the statute was intended to allow the trial court to

correct errors or reconsider the facts of record, before an appeal is taken or

within 30 days of its order.

       If convicted, Hoover should bear the punishment for the new charges

he received after he was released from IPP. But, the new charges cannot



____________________________________________


2 The logic of the trial court’s action could be extended to other areas of the
law as well. The statute allowing modification of orders does not render all
orders “conditional upon subsequent events” for 30 days.

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serve as a basis to reinstate IPP, after the court released him from this

supervision. Therefore, I agree with Hoover that the trial court’s “rescinding

its original Order lacks support in the record; the Appellant had successfully

completed his conditions, and the Court’s Order terminating supervision

should have been final.”   Hoover Brief at 14 (emphasis added).       I must,

respectfully, dissent.




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