Opinion
No. 25 MAP 2019
05-19-2020
COMMONWEALTH of Pennsylvania, Appellee v. Todd Daniel HOOVER, Appellant
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
In this discretionary appeal, we consider whether the trial court erred by vacating, pursuant to 42 Pa.C.S. § 5505 ("Modification of orders"), a prior order granting a petition for early termination of a sentence of intermediate punishment based on the court's discovery that the defendant committed a new offense shortly after the early termination order was entered. For the reasons that follow, we hold that, in the instant case, the trial court erred, and, therefore, we reverse the decision of the Superior Court affirming the trial court's order.
In May 2013, Appellant Todd Daniel Hoover pled guilty to one count of driving under the influence of alcohol ("DUI") - general impairment, and one count of DUI - highest rate of impairment. On August 13, 2013, the trial court sentenced Appellant to a term of five years intermediate punishment, which included 90 days incarceration at the Lycoming County Prison pre-release facility. He also was ordered to pay the costs of prosecution and a $1,500 fine. In 2017, Appellant filed a motion for early termination of his sentence of intermediate punishment pursuant to 42 Pa.C.S. § 9773, which provided, inter alia , that "[t]he court may at any time terminate a sentence of county intermediate punishment or increase or decrease the conditions of a sentence pursuant to section 9763 (relating to sentence of county intermediate punishment)." 42 Pa.C.S. § 9773(a) (repealed). On September 29, 2017, the trial court determined that Appellant had "complied with all conditions of supervision, paid all fines and costs, and completed all obligations" associated with his county intermediate punishment, and, accordingly, granted his petition. Trial Court Order, 9/29/17. That night, however, Appellant was arrested for, and charged with, another DUI offense.
As discussed infra , following this Court's grant of allocatur and oral argument in this matter, the legislature repealed Section 9773 ("Modification or revocation of county intermediate punishment sentence") and Section 9774 ("Revocation of State intermediate punishment sentence") of Title 42 in their entirety, effective December 18, 2019. Additionally, "County intermediate punishment" and "State intermediate punishment" were deleted from the sentencing alternatives provided in Section 9721, and Section 9763, which previously was titled "Sentence of county intermediate punishment," was retitled "Conditions of probation." A variant on intermediate punishment is now denominated as a type of probation. See 42 Pa.C.S. § 9763.
On October 2, 2017, the Lycoming County Adult Probation Office ("LCAPO") contacted the trial court and orally requested that it reconsider its order granting Appellant's petition for early termination of his sentence. The trial court granted the request the same day, and scheduled a hearing to consider "whether the Court should vacate its Order releasing [Appellant] from supervision in light of the new charges." Trial Court Opinion, 1/11/18, at 2.
In the interim, the Commonwealth filed a petition to revoke Appellant's probation, asserting that his new DUI offense constituted a violation of his probation. Appellant proceeded to a probation revocation hearing, and the revocation court determined that, in light of the trial court's September 29, 2017 order releasing Appellant from his sentence of intermediate punishment, Appellant was not on probation when he committed the new DUI offense and, thus, could not be found to have violated the terms thereof. Nevertheless, the revocation court urged the trial court to vacate its prior order granting Appellant early release so that Appellant could "be replaced onto supervision." Id. (quoting Revocation Court Order, 10/13/17, at 1).
On October 23, 2017, Appellant appeared at the hearing scheduled by the trial court. For reasons unknown, the hearing was not conducted on the record. However, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court indicated that, at the time of the hearing, it "was persuaded by [Appellant's counsel] that the Court was without authority to vacate the early release Order." Id. at 3. The trial court further noted that it specifically asked the Commonwealth to address whether the court had jurisdiction to vacate the order. According to the court, however, it subsequently determined that it did have authority to vacate its prior order pursuant to 42 Pa.C.S. § 5505, titled "Modification of orders":
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S. § 5505. Thus, by order dated October 26, 2017, the trial court vacated its September 29, 2017 order granting Appellant's petition for early termination of his sentence of county intermediate punishment. The order dated October 26, 2017 was not entered on the docket until October 31, 2017.
Appellant appealed to the Superior Court, wherein he argued that the trial court erred in vacating its prior order terminating his sentence of intermediate punishment because the court no longer had jurisdiction over the matter. He further suggested that, because the trial court's October 26, 2017 order was not entered on the docket until October 31, 2017, it was outside the 30-day window specified in Section 5505. The Commonwealth did not file a responsive brief.
The Superior Court affirmed in a divided, unpublished memorandum opinion. Commonwealth v. Hoover , 1893 MDA 2017, 2018 WL 4215020 (Pa. Super. filed Aug. 31, 2018). The majority, in an opinion authored by Senior Judge John Musmanno, and joined by Judge Judith Olson, recognized that, under Section 5505, once 30 days has passed, a trial court generally no longer has authority to alter a prior order. Id. at 3 (citing Commonwealth v. Walters , 814 A.2d 253, 256 (Pa. Super. 2002) ). It further noted that a trial court's authority under Section 5505 "to modify or rescind an order is almost entirely discretionary." Id. (citing Hayward v. Hayward , 808 A.2d 232, 235 (Pa. Super. 2002) ). However, the majority determined that, because the trial court, on October 2, 2017, within Section 5505's 30-day window, expressly granted reconsideration of its prior order granting Appellant's petition for early termination of his sentence, "the trial court still had jurisdiction to vacate the early release Order." Id. at 4 (citing 42 Pa.C.S. § 5505 ; Pa.R.A.P. 1701(b)(3) ).
Judge Deborah Kunselman authored a dissenting memorandum, in which she agreed that, in light of the trial court's express grant of reconsideration of its prior order on October 2, 2017, the trial court retained jurisdiction under the 30-day window prescribed in Section 5505. Nevertheless, she expressed concern as to whether LCAPO had standing, in the first instance, to request reconsideration of the trial court's order terminating Appellant's sentence of intermediate punishment on the Commonwealth's behalf, and she additionally noted that LCAPO's request for reconsideration was made ex parte . Furthermore, relevant to the issue presently before this Court, Judge Kunselman observed that, when considering whether to modify a prior order, a trial court generally is limited to consideration of facts that were of record in the original proceeding. See Hoover , 1893 MDA 2017, at 1-2 (Kunselman, J., dissenting) (citing, inter alia , M.P. v. M.P. , 54 A.3d 950 (Pa. Super. 2012) (holding that trial court abused its discretion in denying mother's custody petition seeking permission to travel with her daughter based on the court's own internet research conducted subsequent to the custody hearing); Eck v. Eck , 327 Pa.Super. 334, 475 A.2d 825 (1984) (holding that trial court, in reversing a hearing master's award of alimony, abused its discretion by considering facts and evidence not of record)). She also suggested that the trial court's actions were inconsistent with this Court's decision in Commonwealth v. Holmes , 593 Pa. 601, 933 A.2d 57, 67 (2007), which she cited for the proposition that a trial court's authority under Section 5505 is meant to correct errors, not to reevaluate its sentencing decision based on a defendant's subsequent conduct. Thus, Judge Kunselman concluded that the trial court erred in revoking its prior order granting Appellant's petition for early termination based on his subsequent arrest for DUI, and she would have reversed the trial court's October 26, 2017 order vacating its prior termination order, and reinstated the trial court's order of September 29, 2017.
Appellant filed a petition for allowance of appeal, and this Court granted review to consider whether, pursuant to Section 5505, the trial court had the authority to vacate its prior order granting Appellant's petition for early termination of his intermediate punishment sentence based on the court's discovery that Appellant was arrested for a new DUI offense shortly after his petition had been granted.
As a preliminary matter, we reiterate that Section 9721, which authorized a sentence of county intermediate punishment as a sentencing option, and Section 9773, which provided for the termination, modification, or revocation of a county intermediate punishment sentence, were repealed effective December 18, 2019. See supra note 1. Further, Section 9763, which previously was titled "Sentence of county intermediate punishment," was retitled "Conditions of probation," and intermediate punishment is now classified as a type of probation. See id. However, pursuant to the amended version of Section 9771, titled "Modification or revocation of order of probation," a trial court has the "inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety." 42 Pa.C.S. § 9771(a). Thus, the issue of whether, pursuant to Section 5505, a trial court may revoke a prior order terminating a defendant's sentence of county intermediate punishment (albeit now under the label of probation) based on a defendant's subsequent actions remains; accordingly, we conclude that the amendments to the statute under which Appellant was sentenced and released do not impede our review of the broader question at hand.
Before this Court, Appellant renews his argument that the trial court erred in vacating its prior order granting his petition for early termination of his sentence of intermediate punishment. He argues that, in granting his petition, the trial court determined that he "complied with all of his sentencing conditions and demonstrated that he ... is no longer in need of supervision." Appellant's Brief at 13 (citing Commonwealth v. Concordia , 97 A.3d 366, 374 (Pa. Super. 2014) ). He further points out that the trial court's decision to vacate its prior order granting his petition for early termination was not due to a patent error in its order, but, rather, was based on its consideration of facts which were not of record at the time the court granted the petition, and, indeed, which did not occur until after the court granted the petition. Like the dissent below, Appellant suggests that the trial court's act of vacating its prior order was improper under M.P. , Eck , and Holmes .
In response, the Commonwealth argues that, under Section 5505, a trial court always has the authority to reconsider its own judgment, "except as otherwise provided or prescribed by law." Commonwealth's Brief at 10 (quoting 42 Pa.C.S. § 5505 ). It contends that M.P. and Eck are distinguishable because, in those cases, the litigants did not have an opportunity to respond to the off-the-record evidence considered by the trial court, whereas, in the instant case, Appellant had a chance to appear at a hearing and respond to the evidence pertaining to his new DUI offense. Finally, the Commonwealth submits that, because, immediately following the trial court's grant of his petition for early termination of his sentence of intermediate punishment, Appellant committed the same type of offense (DUI) for which he was serving his initial sentence, it was reasonable for the trial court to reconsider its determination as to whether Appellant was still in need of supervision.
The instant case presents an issue of statutory interpretation, which is a pure question of law. Thus, our standard of review is de novo, and our scope of review is plenary. SEPTA v. City of Philadelphia , 627 Pa. 470, 101 A.3d 79, 87 (2014). The overriding object of all statutory interpretation "is to ascertain and effectuate the intention of the General Assembly" in enacting the statute at issue. 1 Pa.C.S. § 1921(a). Accordingly, we are required to interpret a statute so as to give effect to all of its provisions, "if possible." Id. If statutory language is "clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Id. § 1921(b). Hence, when the words of a statute have a plain and unambiguous meaning, it is this meaning which is the paramount indicator of legislative intent. In situations where the words of a statute "are not explicit," the legislature's intent may be determined by considering any or all of the factors enumerated in Section 1921(c) of the Statutory Construction Act. Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1278 (2016). Moreover, in determining legislative intent, it is presumed that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable. 1 Pa.C.S. § 1922(a). Further, "statutes are to be construed whenever possible to uphold their constitutionality." Working Families Party v. Commonwealth , ––– Pa. ––––, 209 A.3d 270, 279 (2019) (quoting In re William L. , 477 Pa. 322, 383 A.2d 1228, 1231 (1978) ); 1 Pa.C.S. § 1922(3) (in ascertaining intent of General Assembly in enactment of statute, we presume "[t]hat the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth").
As noted above, Section 5505 provides:
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
The language of Section 5505 is unambiguous. Pursuant thereto, a trial court may modify or rescind any order which has not been appealed, provided the court acts within 30 days and provides notice to the parties, except as otherwise provided or prescribed by law . In the instant case, the trial court's order granting Appellant's petition for early termination of his sentence of intermediate punishment was not appealed; the trial court acted within 30 days of the entry of the order; and the trial court provided notice to the parties of its intent to rescind its prior order. Thus, under the plain language of Section 5505, the trial court had the authority to vacate its prior order, unless "otherwise provided or prescribed by law."
Appellant points to no statute or rule - and, indeed, our research reveals none - that would, on its face, prohibit the trial court's modification or revocation of its prior order pursuant to Section 5505 under the circumstances of the instant case. However, Appellant maintains that the trial court erred by vacating its prior order because: (1) its decision was not based on a patent error in its order granting early termination of his intermediate sentence, and (2) its decision was based on a fact that was not of record at the time it granted early termination of his intermediate sentence. To the extent Appellant suggests that the trial court erred in vacating its prior order because the order did not contain a patent error, he misconstrues the case law pertaining to correction of patent errors under Section 5505. In Holmes and its consolidated companion case, Commonwealth v. Whitfield, we considered the interplay between the 30-day time limitation of Section 5505 and the inherent power of courts to correct patent errors in the record beyond Section 5505's 30-day window. In upholding the trial court's orders modifying sentences to correct the errors, which were entered outside of the 30-day window specified in Section 5505, we emphasized that a trial court's inherent power of correction encompasses patent and obvious errors that appear on the face of an order, but that it also extends to such errors that emerge upon consideration of information in the contemporaneous record. Holmes, 933 A.2d at 67. We cautioned, however, that, while courts have the inherent power to correct patent errors outside of 30 days,
Holmes was erroneously resentenced as if he had violated probation, when, in fact, he was not on probation, but had violated parole. Whitfield was erroneously found to have violated probation despite having never been sentenced to probation.
[t]his exception to the general rule of Section 5505 cannot expand to swallow the rule. In applying the exception ... it is the obviousness of the illegality, rather than the illegality itself, that triggers the court's inherent power. Not all illegal sentences will be amendable to correction as patent errors. Moreover, the inherent power to correct errors does not extend to reconsideration of a court's exercise of sentencing discretion. A court may not vacate a sentencing order merely because it later considers a sentence too harsh or too lenient. The cases at bar are not cases where a court reconsidered the application of its sentencing discretion or its interpretation of a nuanced or ambiguous statutory provision. These cases involve clear errors in the imposition of sentences that were incompatible with the record, as in Whitfield , or black letter law, as in Holmes .
Id. at 66-67 (emphasis added).
While Appellant suggests that the trial court's actions in this case conflict with the above-italicized language in Holmes because, herein, the court's decision "did not result from patent error, but was more akin to changing a sentence because later reflection caused the court to feel the sentence was too harsh or lenient," Appellant's Brief at 17, as noted, Holmes pertained to a trial court's authority to act outside the 30-day period prescribed by Section 5505. It did not address a trial court's authority to act within 30 days, and does not stand for the proposition that a trial court's authority under Section 5505 to modify or vacate a prior order within 30 days of its entry is limited to the correction of patent errors.
Turning to Appellant's argument that the trial court did not have the authority to vacate its prior order based on a fact that was not of record at the time it granted his petition for early termination, we note that Appellant cites the Superior Court's decisions in M.P. and Eck . In M.P. , the Superior Court held that the trial court abused its discretion when it denied a mother's custody petition seeking permission to travel with her daughter based on its own internet research which was conducted subsequent to the custody hearing. In Eck , the Superior Court held that the trial court erred in reversing a hearing master's award of alimony based on a letter the trial court received after the master's hearing. In the first instance, we note that neither M.P. , nor Eck , involved Section 5505. Moreover, in both M.P. and Eck , the trial courts' decisions were overturned because the orders at issue were based on the consideration of evidence outside the record, and because the parties had no notice of, or opportunity to respond to, the same. As noted above, in the instant case, Appellant had notice of the basis for the trial court's modification of its prior order, and, indeed, had the opportunity to respond at a hearing. Thus, we find those decisions distinguishable.
However, notwithstanding the above, and for reasons explained below, we conclude that, were we to uphold the trial court's revocation of its prior order granting Appellant's petition for early termination based on Appellant's subsequent DUI offense, we would be sanctioning a construction of Section 5505 that would violate due process, which we must avoid. See Working Families Party , supra ; 1 Pa.C.S. § 1922(3).
As the Commonwealth acknowledges in its brief, the Superior Court, in Concordia , supra , observed that "[c]ounty intermediate punishment programs are similar to traditional probation sentences." 97 A.3d at 373. Indeed, as a result of the recent legislative amendments discussed above, both county and state intermediate punishment programs now fall under the umbrella of probation.
It is well-settled that due process protections apply both to individuals who are on probation, see Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and to individuals who are on parole, see Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey , the high Court addressed what due process protections are required when an individual's parole is revoked. It explained that, although parole is not a part of a criminal prosecution, in that it arises after the end of the criminal prosecution and after the imposition of sentence, "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but ... of the conditional liberty properly dependent on observance of special parole conditions." 408 U.S. at 480, 92 S.Ct. 2593. Further, "the loss of liberty entailed [by revocation] is a serious deprivation requiring that the parolee be accorded due process." Gagnon , 411 U.S. at 781, 93 S.Ct. 1756 (citing Morrissey ).
In Morrissey , the high Court determined that due process requires that parolees facing revocation be afforded, inter alia , the opportunity to be heard and the opportunity to confront and cross-examine adverse witnesses. Accordingly, the Court held that a parolee who is alleged to have violated the conditions of his or her parole is entitled to two hearings: "a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and ... a somewhat more comprehensive hearing prior to the making of the final revocation decision." Id. at 781-82, 93 S.Ct. 1756.
In our recent decision in Commonwealth v. Foster , we held that a trial court improperly revoked an appellant's probation based on social media posts made by the appellant after he was sentenced to probation, when the appellant had not violated any specific condition of his probation. We deduced that Section 9754, which sets forth the requirements of an order of probation, and Section 9771, which sets forth the requirements of an order finding a defendant in violation of probation, were enacted by our General Assembly in an apparent response to Morrissey . ––– Pa. ––––, 214 A.3d 1240, 1248 (2019).
In addition to the right to be heard and the right to confrontation, due process requires that individuals be given fair warning of the acts which may lead to revocation of parole or probation. United States v. Dane, 570 F.2d 840, 843 (9th Cir. 1977) ("It is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty."); Bailey v. State, Dep't of Corrections, Bd. of Parole , 224 P.3d 111, 116 (Alaska 2010) ("Due process includes reasonable notice, which in [the parole] context requires notice of what conditions an individual must satisfy to avoid revocation of his parole."); G.G.D. v. State , 97 Wis.2d 1, 292 N.W.2d 853, 857 (Wis. 1980) ("Just as there is an essential requirement that a criminal statute give fair warning of the conduct subject to punishment, so too must a probationer be given ‘some fair warning’ of the conditions upon which his continued right to probation depends." (citation omitted)).
Some courts have suggested that knowledge may be imputed to a probationer that the commission of a criminal act will lead to the revocation of probation. See, e.g., Dane , 570 F.2d at 844. As noted above, however, Appellant was not on probation, and, indeed, had been released from the terms of his sentence entirely, at the time he committed his DUI offense.
We appreciate that a trial court's revocation of a prior order terminating a sentence of intermediate punishment, which occurred in the instant case, is not the same as a revocation of probation or parole. However, we find that both circumstances infringe upon a similar liberty interest. As the high Court observed in Morrissey ,
[t]he liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. ...
We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a "right" or a "privilege." By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its determination calls for some orderly process, however informal.
408 U.S. at 482, 92 S.Ct. 2593 (footnotes omitted, emphasis added).
A review of the trial court's August 13, 2014 order sentencing Appellant to county intermediate punishment indicates that, in addition to 90 days in the Lycoming County Prison, Appellant was required to perform 50 hours of community service, pay fees and costs, complete a DUI intervention program, and "complete any and all other programs and conditions to which he is directed by the Adult Probation Office." Trial Court Order, 8/13/13, at 1. The order additionally provided: "In addition to the other imposed conditions of supervision, [Appellant] is specially (sic) directed not to travel outside the Commonwealth of Pennsylvania without specific approval from the Court." Id. at 2. Upon termination of his intermediate punishment sentence, Appellant was no longer subject to such restrictions. Thus, we conclude that termination of Appellant's sentence of intermediate punishment implicated his liberty interests.
Although unnecessary to our conclusion in the instant case, it might be argued that the termination of a sentence of intermediate punishment or probation implicates an even greater liberty interest than a grant of probation or parole, as termination of a sentence seemingly connotes finality, without the imposition of any conditions.
As the trial court's revocation of its order terminating Appellant's sentence of intermediate punishment infringes upon a liberty interest similar to that which is infringed upon in the revocation of probation or parole, we further conclude that due process protections must apply in both circumstances. In particular, we find that Appellant was entitled to notice and fair warning of any subsequent act or behavior that could lead to the trial court's revocation of its order terminating his sentence of intermediate punishment. Cf. Dane ; Bailey ; G.G.D.
In the instant case, there is no record evidence that the trial court conditioned its grant of Appellant's petition for early termination of his sentence of county intermediate punishment on Appellant's future conduct. In particular, there is no suggestion that Appellant was aware that his DUI offense could lead to the trial court's revocation of the early termination order. Thus, were we to interpret Section 5505 as allowing the trial court to revoke its prior order terminating Appellant's sentence of intermediate punishment based on Appellant's subsequent conduct, when Appellant lacked fair warning that such conduct could result in the trial court's revocation of its termination order, we would be endorsing a construction of Section 5505 that would result in a violation of Appellant's right to due process. See Bailey , 224 P.3d at 118. Again, we must avoid construing a statute in such a manner. See Working Families Party, supra.
Notwithstanding the above, in support of its contention that the trial court did, in fact, have the authority to "reconsider" its order because the "facts, subsequent to the entry of the order, call[ed] on the court[ ]" to do so, Commonwealth's Brief at 14, the Commonwealth cites Commonwealth v. Postell, 693 A.2d 612 (Pa. Super. 1997), wherein the defendant was convicted of, inter alia , aggravated assault, and sentenced to four to ten years in prison. As a condition of his sentence, the defendant was ordered to have no further contact with the victim. On the evening of the day he was sentenced, however, the defendant telephoned the victim and threatened her. The Commonwealth filed a timely motion for reconsideration, which the court granted, and, following a hearing, the court imposed an increased sentence of five to ten years imprisonment. The defendant appealed, arguing that the trial court, in resentencing him to a greater minimum period of incarceration, violated his rights under the Double Jeopardy clauses of the United States and Pennsylvania Constitutions. The Superior Court rejected his argument, concluding he did not have a reasonable expectation of finality with respect to his sentence, and, thus, that double jeopardy protections did not apply. Specifically, the court reasoned that a defendant who intentionally deceives the sentencing authority or thwarts the sentencing process cannot have a "legitimate expectation regarding the sentence thereby procured," and held that, because the defendant "intentionally deceived the trial court into imposing a more lenient sentence by promising that he would not have any contact with the victim," he had no legitimate expectation regarding his sentence. Id. at 616. Notably, however, and in contrast to the instant case, the trial court in Postell revoked its initial sentence upon finding that the defendant violated a specific condition of his sentence - that he have no contact with the victim. Once again, in the instant case, there is no evidence that the trial court conditioned its grant of Appellant's petition for early termination of his sentence of intermediate punishment on Appellant's future behavior.
The Commonwealth also relies on Moore v. Moore , 535 Pa. 18, 634 A.2d 163 (1993), a custody case in which this Court held that the trial court had the authority to grant a timely (filed within 30 days) petition for reconsideration, hold a supplemental hearing at which it heard new evidence, and vacate its prior decision based on the new evidence. In so holding, we emphasized that, "[i]n light of the unique obligation placed upon the trial court in a custody case, to consider all pertinent information regarding the issue of what is in the best interest of the child, we can find no abuse of discretion by the trial court herein, in holding the supplemental hearing." Id . at 167-68. Although Moore , like the case sub judice , involved the vacating of an order within the 30-day period set forth in Section 5505, Moore was a custody case, which involves the overarching and ongoing question of the best interests of a child, and, thus, is always subject to modification by the court. See In re Davis , 502 Pa. 110, 465 A.2d 614, 618 n.2 (1983). No such considerations are involved in the instant case.
In summary, we recognize the broad discretion afforded to trial courts under Section 5505. However, were we to interpret Section 5505 as permitting a trial court to vacate a prior order terminating an individual's sentence of intermediate punishment or probation based on an individual's subsequent conduct, when the individual did not have notice or fair warning that the termination was subject to certain conditions, and, thus, could not conform his conduct accordingly, we would countenance an interpretation of the statute that would violate due process. For this reason, in order to construe Section 5505 in a constitutional manner, as we must, we hold that a trial court may not vacate a prior order terminating a sentence of intermediate punishment or probation based on subsequent conduct, unless that conduct constitutes a violation of specified conditions of the termination order, of which the individual had notice.
In his Concurring and Dissenting Opinion, Justice Baer suggests that our reversal of the lower court's decisions based on our finding that Appellant was deprived of a liberty interest without due process is "outside the scope of this appeal as it was not presented, and therefore necessarily not preserved by Appellant." Concurring and Dissenting Opinion (Baer, J.) at 806. However, as Justice Baer recognizes, the issue and the arguments in this case concern the court's authority to rescind or modify a prior order under Section 5505. In addressing the court's authority under the statute, we rely on the principle of statutory construction that the legislature does not intend to violate the federal or state Constitution. See 1 Pa.C.S. § 1922(3) (in ascertaining intent of General Assembly in enactment of statute, presumption exists that General Assembly did not intend to violate federal and state constitutions). Thus, in considering the trial court's authority under Section 5505 in the instant matter, we avoid a construction of Section 5505 that would violate due process principles.
In addition, while Justice Wecht, in his Concurring Opinion, indicates his agreement with our due process analysis, see Concurring Opinion (Wecht, J.) at 802–03, he suggests that the trial court's order constituted an abuse of discretion because there was no record evidence to support its decision, as the revocation hearing was not transcribed, and would reverse on that basis. As noted above, however, we find the issue in this case concerns the trial court's authority under Section 5505 – i.e., whether it could act at all – not its abuse of that authority. Moreover, Justice Wecht disagrees with our determination that M.P. and Eck are distinguishable, inter alia , on the ground that Appellant herein had notice of the evidence that formed the basis of the trial court's decision, whereas the parties in M.P. and Eck did not. Respectfully, we see no need to engage in a lengthy debate as to the import of those Superior Court decisions, which, as noted, did not involve Section 5505. At any rate, our decision in this matter is not based on a finding that Appellant lacked notice of the evidence relied on by the trial court at the revocation hearing – he clearly had such notice; our decision is based on the fact that Appellant did not have notice that subsequent acts or behavior could result in revocation of the trial court's order.
Of course, our holding in this case does not impact or preclude Appellant's separate prosecution for his subsequent DUI offense.
Order reversed.
Justices Donohue and Dougherty join the Opinion Announcing the Judgment of the Court.
Justices Donohue and Wecht file concurring opinions.
Justice Baer files a concurring and dissenting opinion in which Chief Justice Saylor and Justice Mundy join.
JUSTICE DONOHUE, concurring
I join the Opinion Announcing the Judgment of the Court ("OAJC").
I write separately to speak briefly on two points. First, the question accepted for review was whether the trial court abused its discretion by rescinding the September 29, 2017 order granting Hoover early release from his intermediate punishment sentence ("early release order"). Order, 2/27/2019. "Regarding the ‘abuse of discretion’ standard of review, this Court has explained that the term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law , and is not exercised for the purpose of giving effect to the will of the [trial] judge." Commonwealth v. Gill , ––– Pa. ––––, 206 A.3d 459, 466 (2019) (quoting Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 753 (2000) (citation omitted)) (emphasis supplied). The OAJC answers the question accepted for review in terms of the trial court's "authority" to revoke its early release order—an approach that Justice Baer challenges. CDO at 3–5. Given the basis for the OAJC's analysis and conclusion, certainly Judge Butts abused her discretion by revoking the early release order in a manner that violated Hoover's constitutional rights. It cannot be reasonably argued that the decision was within the framework of the law.
Second, contrary to Justice Wecht's conclusion, CO at 1, I find support in the certified record for the trial court's rescission of the early release order. The order on appeal and all matters involving the case are filed at the docket in the matter of Commonwealth v. Todd Daniel Hoover , in the Court of Common Pleas of Lycoming County, CP-41-002120-2012. Included in the docket is the order Judge Lovecchio entered on October 12, 2017 and docketed on October 13, 2017. In his order which resulted from a revocation hearing (the transcript of which is also docketed), Judge Lovecchio stated:
AND NOW , this 12th day of October, 2017, following a hearing, the Court is constrained to agree with defense counsel that technically defendant was not under supervision when he allegedly committed the new DUI. A copy of this Order shall be provided to Judge Butts with the following notation:
The defendant was released early from supervision by order of Judge Butts on September 29, 2017, which was docketed sometime in the afternoon. Later that evening the defendant was arrested and charged with yet another
DUI. The effective date of defendant's Intermediate Punishment was August 13, 2013, and it was a five (5) year Intermediate Punishment sentence. The defendant would not have maxed out on the Intermediate Punishment until August 13 of 2018. The defendant was released approximately a year early.
Although a petition for reconsideration is pending before Judge Butts, this Court would ask that Judge Butts would vacate the order immediately in order that the defendant can be replaced onto supervision , and be placed on a TAD unit as a condition of his supervision.
Order, 10/13/2017, at 1 (emphases supplied). Judge Butts relied on that court record when she entered the order at issue. See Rule 1925(a) Opinion, 1/11/2018, at 2, 4.
While I do not condone the off the record proceedings in this case, it is inaccurate to state that the lack of a record here precludes our review. Further, unlike Justice Wecht, I do not believe that Hoover relies on this defect as a basis for this appeal. His challenge is to reliance on facts not of record (i.e., non-existent) at the time the early release order was entered, not the lack of a record of the proceedings giving rise to this appeal.
JUSTICE WECHT, concurring
I agree with the learned Opinion Announcing the Judgment of the Court ("OAJC") that, as a general matter, 42 Pa.C.S. § 5505 authorizes a trial court to modify or to rescind an order terminating a sentence of intermediate punishment, so long as the parties had notice before the original order was vacated and so long as the rescinded order had not yet been appealed. That said, I disagree with the OAJC's assessment of the trial court's utilization of that authority in this case. Because the record contains no evidence to support its decision, the trial court's decision to rescind its order terminating Todd Hoover's intermediate punishment sentence necessarily was an abuse of discretion.
Nonetheless, I agree with the OAJC's ultimate conclusion that, although the statute technically authorized the trial court's rescission of its order terminating Hoover's intermediate punishment sentence, the effect of that rescission violated Hoover's due process rights. Thus, I concur in the result reached by the OAJC.
Section 5505 provides that, "[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed." 42 Pa.C.S. § 5505. By its own terms, the statute is broad in its scope, containing no prescribed limitations on the type or character of orders that are subject to modification or revocation. Indeed, the statute empowers trial courts to alter or revoke "any" order within thirty days of its issuance. Clearly, then, the order at issue in this case—one that released Hoover from intermediate punishment—constitutes such an order and falls within the purview of the statute, provided that the other statutory criteria are met. When the trial court subsequently revoked that order, the parties had been notified, the order had not yet been appealed, and thirty days had not elapsed. And, as the OAJC explains, there exists no other statute or rule in Pennsylvania that otherwise would preclude vacatur of the type of order revoked in this case. See OAJC at 8-9.
The General Assembly's use of the word "any" plainly demonstrates its intent to subject every type of court order to modification or revocation, with no exceptions, including judgments of sentence. However, that an order terminating intermediate punishment can be revoked or modified under Section 5505 does not mean that it should be. To the contrary, in my view, courts should exercise considerable restraint in their discretionary invocation of Section 5505 under these, and similar, circumstances. As Judge Kunselman cogently pointed out in her dissent below, Section 5505 was enacted with the intent of providing trial courts with the authority to correct errors or reconsider factual determinations before an appeal is taken, in part, one must assume, in an effort to conserve judicial resources by stemming off a costly and time-consuming appeal. Commonwealth v. Hoover , No. 1827 MDA 2017, 2018 WL 4215020, Dissenting Memorandum, slip op. at 4 (Pa. Super. Aug. 31, 2018) (Kunselman, J., dissenting). The statute was not enacted to provide trial courts with an unrestrained mechanism to reconsider their earlier exercises of discretion, nor was the statute meant to afford courts an opportunity to run the order, or the defendants subject thereto, through a thirty-day test period to ensure that the order was effective or wise, or that the particular defendant was deserving of, or capable of complying with, the terms of the order. It takes little imagination to envision how this power can become troublesome when wielded in a manner contrary to its intent. Fortunately, the OAJC's due process ruling—which I understand to require trial courts to provide specific notice to defendants about the terms and conditions that could result in vacatur of orders releasing those defendants from criminal sentences—will go a long way toward curbing the potential for abuse.
The power to modify or revoke orders is not unchecked. Although this Court has not yet opined on the matter, it has become well-established in Pennsylvania law that Section 5505 is a discretionary authority, albeit a broad one, and thus subject to an abuse of discretion standard of review upon appeal. See Haines v. Jones , 830 A.2d 579, 584 (Pa. Super. 2003) ("Under [S]ection 5505, the trial court has broad discretion to modify or rescind an order, and this power may be exercised sua sponte or invoked pursuant to a party's motion for reconsideration."); Justice v. Justice , 417 Pa.Super. 581, 612 A.2d 1354, 1357 (1992) (per curiam ) (explaining that invocation of Section 5505 is "almost entirely discretionary"). "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59, 86 (2008) (internal quotation marks and citation omitted).
It is axiomatic that a judgment, even a discretionary one, must be based upon the facts of record presented to the jurist. Our courts consistently have held that a trial court abuses its discretion by rendering judgments based upon facts dehors the record, or facts that the court independently investigated and uncovered. See M.P. v. M.P. , 54 A.3d 950, 955 (Pa. Super. 2012) ; Ney v. Ney , 917 A.2d 863, 866-67 (Pa. Super. 2007) ; and Eck v. Eck , 327 Pa.Super. 334, 475 A.2d 825, 827 (1984). Hoover relies upon these cases in asserting that the trial court's decision to revoke the order terminating his intermediate punishment was an abuse of discretion, because, he correctly points out, the revocation hearing was not transcribed. Thus, when an appellate court reviews the certified record generated in this case, no evidence supporting the trial court's decision, including the fact that Hoover was arrested for DUI on the date that the trial court released him from intermediate punishment, can be found. I agree. The record does not support the court's decision.
The OAJC rejects Hoover's reliance upon M.P. and Eck , finding them distinguishable because neither case involved Section 5505, and because, in both cases, "the parties had no notice of, or opportunity to respond to," the extra-judicial evidence relied upon by the trial courts in those cases." OAJC at 10. Noting that Hoover had notice of the evidence—his new DUI arrest—that purportedly formed the basis of the trial court's decision in this case, the OAJC concludes that neither M.P. nor Eck influence this case. Respectfully, I disagree, as I do not believe that notice of evidence is the dispositive aspect of this analysis.
In Eck , the Superior Court reviewed a trial court's decision to overrule a divorce master's recommendation to award alimony to the wife in the dispute. Eck , 475 A.2d at 827. The master had recommended that the wife be awarded alimony, in part, because she cared for her elderly, blind mother. Id. at 826. The husband filed exceptions to the alimony award, which the trial court granted, denying alimony to the wife. Id. at 827. In the trial court's opinion in support of its order, the trial court explained that, among other things, the wife had failed to demonstrate that she could not obtain meaningful employment due to the onus of caring for her blind mother, a burden that she assumed voluntarily. More importantly for present purposes, the trial court also had learned by a letter that was not a part of the evidentiary record that the wife's mother had passed away since the master's hearing and recommendation. Id.
The Superior Court found that the trial court's decision constituted an abuse of discretion. To reach this decision, the Superior Court refused to consider the evidence of the wife's mother's passing, predicating that ruling upon the well-founded axiom that "a trial court may not consider facts or evidence dehors the record in making its determination." Id. (citing Commonwealth ex rel. Bowers v. Widrig , 318 Pa.Super. 198, 464 A.2d 1299, 1302 (1983) ). With regard to the role of an appellate court under such circumstances, the Superior Court then emphasized that a reviewing court may not "uphold a trial court's order on the basis of off-the-record facts." Id. (citing In re Frank , 283 Pa.Super. 367, 423 A.2d 1299 (1980) ). The court proceeded to review the of-record evidence, and found that the trial court had abused its discretion in overruling the master's well-founded recommendation. Id. at 828. Notably, the wife undeniably would have been on notice that her mother had died, yet that notice did not render the otherwise extra-record information available to be used against the wife, as today's OAJC would do against Hoover.
In M.P. , a mother filed a custody petition seeking permission to take her daughter out of the country to visit relatives. M.P. , 54 A.3d at 951. The father opposed the petition and, after a hearing, the trial court entered an order holding, "without any explanation," that the mother was prohibited from taking the child abroad. Id. at 952. The reasons for the rejection became clear in the trial court's opinion, in which the court explained that the mother had failed to prove that the custody order in place would have been afforded comity by the foreign country via the Hague Convention on the Civil Aspects of International Child Abduction treaty. Id. at 954. Neither party had presented any evidence on the record regarding this treaty. The trial court, on its own volition, had engaged in internet research and learned that the country to which the mother sought to travel had violated that particular treaty no less than four times. Id. The Superior Court found that the court's independent research and acquisition of information, and the subsequent decision based thereupon, was an abuse of discretion. Id. at 955. As an additional point, the court noted that, "[e]ven if we were to conclude that the court could take judicial notice" of the treaty information, Rule 201(e) of the Pennsylvania Rules of Evidence required notice and an opportunity to be heard on a court's intent to take judicial notice of that fact. Id. However, the lack of notice to the parties was not the driving factor in the Superior Court's decision, as it had already declared that the trial court had abused its discretion merely by relying upon evidence not of-record. The notice discussion was offered as additional support for the Superior Court's already-rendered decision.
Likewise, in Ney , a father sought a reduction in his child support obligations based upon a reduction in his income. Ney , 917 A.2d at 866. The father had presented evidence in support of his claim, as well as evidence that he was unable to find a higher-paying job. Id. at 868. Despite this evidence, the trial court performed its own internet research and apparently had found pertinent job openings. The trial court admitted that it had conducted its own research and questioned father about the openings that the court had found while the father was testifying. Id. at 867. Although the trial court advised the father about the information during the hearing, the Superior Court still found that the trial court's decision based upon its own research constituted an abuse of discretion. The parties had neither submitted that information to the court, nor moved it into the evidentiary record. Father's obvious notice to the existence of the information later relied upon by the trial court did not affect the Superior Court's ruling in any manner.
What is evident from these cases is that notice is not, as the OAJC suggests, dispositive of the question. To the contrary, notice was only used as supplemental support to the court's decision in M.P. A party's knowledge that extra-record evidence or information exists, or even knowledge that the trial court would base its decision on such evidence, is not a litmus test for whether a party can establish an abuse of discretion. Pennsylvania law, as I understand it, is clear. Either the evidence is of-record or it is not. If it is not, any decision based upon that information constitutes a clear abuse of discretion, and, as an appellate court, we may not uphold such a decision. Eck , 475 A.2d at 827.
As is evident throughout this opinion, the body of relevant cases is comprised primarily of Superior Court cases, which are not binding on this Court. See In re Estate of duPont , 606 Pa. 567, 2 A.3d 516, 524 (2010). Nonetheless, because there are no cases from this Court of which I am aware that conflict with those Superior Court decisions, and because those cases are consistent with our other rules governing appellate law and procedure, I consider that body of Superior Court precedent to be an accurate representation of Pennsylvania law.
Section 5505 provides:
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S. § 5505.
Notice was not a prominent feature in any of these cases, and is not in my view a fair distinguishing feature. Nor is the fact that neither Eck nor M.P. involved a modification of an order pursuant to Section 5505, as the OAJC indicates. See OAJC at 10. At issue is the general principle that an appellate court cannot uphold a decision that was based upon facts not of-record. That well-established premise is not specific to any statute, nor is it otherwise limited by subject matter. It applies to any claim that comes before an appellate court. This one is not exempt merely because it is a criminal case instead of a domestic relations case.
If the subject matter were a distinguishing feature as the OAJC suggests, then its own analysis necessarily fails as well. This is because the only discussion of notice appears in M.P. , and the requirement for notice specifically arose from the Rules of Evidence in the area of judicial notice. Thus, if bound to subject matter as the OAJC would have it, the notice discussion would have no impact here because this case has nothing to do with a court taking judicial notice. As noted, however, subject matter is not a distinguishing feature in this particular analysis.
Nor can it be said that Hoover, as the non-moving party, had any burden to ensure that the hearing was transcribed. He only incurred a burden after he received an adverse ruling and then filed an appeal. His duty at that point only is to ensure that the record, as was constructed in the court below, is complete, because anything not in that record does not exist for appellate purposes. See Pa.R.A.P. 1921 Note (citing Commonwealth v. Williams , 552 Pa. 451, 715 A.2d 1101, 1106 (1998) ). An appellant has a duty to order all transcripts of proceedings that will facilitate appellate review. Pa.R.A.P. 1911. However, a non-moving party has no obligation to ensure that the hearing is transcribed in the first place. Hoover could only produce for the Superior Court and this Court that which was created by the moving party (or, as can occur in Section 5505 cases, created by the trial court sua sponte ).
Hoover, as appellant, can only forward to appellate courts that which exists. In this case, he did so. As the OAJC highlights, "[f]or reason unknown, the hearing was not conducted on the record." OAJC at 3. For this reason, there was no transcript for Hoover to order, and there is no evidence of-record that supports the trial court's decision to revoke its earlier order terminating Hoover's intermediate punishment. Nor does it matter that the reason for the trial court's revocation—a DUI arrest—was obvious or known to everyone. Cf. Jones v. Ott , 648 Pa. 76, 191 A.3d 782 (2018) (finding a request for a jury charge waived even though moving party filed a written point for charge and ultimately did not receive the instruction, because the charging conference with the trial court was not transcribed). All that matters is that the certified record before the court contains no evidentiary support for the trial court's decision. Consequently, I am unable to uphold the trial court's order, as it was a clear abuse of discretion.
Unlike the OAJC, which excuses the absence of an evidentiary record by relying upon its newly-created notice rule, Justice Donohue would find that there exists evidence in the certified record that would support the trial court's rescission order.
It is necessary to once more repeat what happened in this case. The trial court held a hearing. At that hearing, I assume that there was evidence, testimony, stipulations, arguments, or any combination of these typical forms of record builders. Based upon that hearing, the trial court rescinded its earlier order releasing Hoover from intermediate punishment. For whatever reason, and not because of anything Hoover did or did not do, the hearing was not transcribed. Nonetheless, the trial court's decision was predicated upon what happened at that hearing. There now exists no way for this Court, or any appellate court, to perform our traditional function, which is to review the record and ensure that the trial court's decision was not an abuse of discretion.
Justice Donohue sidesteps this traditional analysis by relying upon two items that appear on the docket in this case. First, she notes that the critical fact that has been alleged against Hoover, that he was arrested for another DUI, appears in an order issued by another judge. Judge Lovecchio originally sentenced Hoover to the term of intermediate punishment. However, for reasons unknown and presently immaterial, Hoover's petition to be released from the sentence was assigned to a different judge. When Judge Lovecchio was asked to revoke the trial court's release order, Judge Lovecchio issued an order explaining that he was unable to do so as that order was issued by a different judge. In so explaining, he mentioned Hoover's alleged DUI.
This hardly creates an evidentiary record that we can review for the present purposes. To put it differently, Justice Donohue would find an evidentiary basis for one trial court's decision because another judge mentioned an alleged fact while explaining why that judge could not address the merits of the petition that the other judge ultimately resolved after holding a hearing. I have found no cases in which this Court has authorized such an expansive definition of what constitutes support for one trial court's decision. The argument might have some merit if the ruling trial judge did not conduct a hearing. But that is not what happened here. There was a hearing, there was a ruling, and there was no excuse for not transcribing the hearing. We do not typically allow parties to skate by our rules so easily, and we should not do so here. See Jones v. Ott , supra.
Second, Justice Donohue finds record support for the trial court's ruling because the trial court mentioned Judge Lovecchio's order (again, not the order that disposed of the petition, but instead an order explaining why he could not make the decision that is now before us on appeal) in her Pa.R.A.P. 1925(a) opinion. This basis for excusing the lack of an evidentiary record is even less compelling than the first. A Rule 1925(a) opinion is an opportunity for a trial court to explain why it decided the way it did, and to identify the information from the record created by the parties upon which the court relied in making that decision. The opinion is based upon the record; however, the opinion itself is not the record. To allow such supplementation and substitution would excuse the need to create a record in the first instance.
In my view, this is a straightforward appellate exercise. We must review a trial court's decision for an abuse of discretion. The hearing upon which the exercise of discretion was based in this case is nowhere to be found in the record, and no amount of notice renders the absence Hoover's fault. That should end the matter, as it always has in Pennsylvania appellate law. We should not go searching for evidence in the various entries in the docket in order to try to remedy the gap in the record, especially when we know there was a hearing and that the ruling trial judge relied upon it.
In a footnote responsive to this concurring opinion, the learned OAJC now asserts that, although it is the OAJC itself that has discussed (and rejected) the issue of abuse of discretion, this case does not even contain such an issue. See OAJC at 16-17 n.7 (maintaining that the issue in this case is whether the trial court has the authority to act at all, "not its abuse of that authority"). The OAJC's insistence that the abuse of discretion question is not at issue in this case is, to say the least, confounding. The OAJC simultaneously resolves the question, then in a footnote asserts that the issue is not part of the case, and then, in the same footnote, defends its analysis of the question it says is not in the case. I disagree, because, as the OAJC's own opinion makes plain, the issue presented is (at least) two-fold: whether the trial court's revocation of its termination order was permitted by the authority vested in the court by Section 5505 and, if so, whether the trial court's decision to invoke that authority, or the manner in which it did so, was an abuse of the discretion afforded by the statute. The OAJC answers both questions, and so do I. That we reach opposing results on the latter question makes it no less a part of this case.
In the body of the opinion, the OAJC excuses the fact that the trial court neglected to hold a hearing on the record by blaming Hoover, the non-moving party, because he apparently had notice of the fact that drove the trial court's decision. In footnote 7, the OAJC once more maintains that M.P. and Eck support such a result. However, as outlined above, neither case stands for that proposition. The consequence of erroneously extrapolating such a rule is clear, and the resulting difficulty is evident. Because those cases do not stand for what the OAJC says they stand for, Hoover at the time could not have known that it somehow became his burden to force the moving party and the trial court to install a court reporter and direct that reporter to transcribe the hearing. The cases clearly and more naturally are read for the proposition that Hoover cites: that a decision based upon evidence not of record cannot be upheld by an appellate court. This is just such a case. But the OAJC turns those cases on their head, such that Hoover now loses his meritorious claim, and learns (along with all of us) that Hoover's putative notice of the operative fact shifted the burden to him. This has never been our law.
There is considerable danger in going forward with such a rule. The debate will now center on whether a defendant had notice of a fact that is not entered into the record by the moving party. If an appellate court finds that the defendant did have such notice, then a decision based thereupon can be upheld, despite clear language to the contrary in Eck . The problem, though, is that notice does not create a record to review. When the appellate court reviews the record to assess the trial court's decision, there is still nothing to review. And because notice of the fact apparently shifted the burden, the challenger, regardless of the quality of the argument, necessarily loses. This effectively creates a burden-shifting scheme that spawns a new form of waiver. This is the consequence of the OAJC's decision. The OAJC insists that this case is only about authority. But in rejecting the abuse of discretion claim in the manner that it does, the OAJC manufactures a new rule that lower courts will follow, a rule that will work to the detriment of many good faith litigants.
The OAJC concludes footnote 7 by stating that none of this matters because this case is decided upon notice in the due process context, and not upon notice for record-creation purposes. The OAJC misses the point. By deciding the abuse of discretion question (incorrectly) along the way to its due process analysis, the OAJC creates a new, unfortunate rule. Both notice issues are important questions of law, but they are not questions that we should address when we are not compelled to do so. See In re Fiori , 543 Pa. 592, 673 A.2d 905, 909 (1996) (explaining that courts should "adhere to the sound tenet of jurisprudence that courts should avoid constitutional issues when the issue at hand may be decided upon other grounds.") (citation omitted). By maintaining that the due process claim renders the prior discussion of notice irrelevant, the OAJC gets things backwards.
As I would avoid the more complicated constitutional question in this case, I concur in the result reached by the OAJC. That said, however, I fully agree with the OAJC's well-reasoned due process analysis. That analysis not only is correct, but also will ensure that Section 5505 will not be used in a manner that exceeds its intent, and further will ensure that trial courts afford defendants notice as to what conduct would constitute violations of court orders.
JUSTICE BAER, concurring and dissenting
While I agree with most of the Opinion Announcing the Judgment of the Court (OAJC)'s thoughts regarding the propriety of the trial court's vacation of its prior order granting a petition for early termination of a sentence of intermediate punishment, I respectfully disagree with its ultimate decision to reverse the Superior Court on a basis that was never raised or argued by the Appellant in this case. Accordingly, I concur in part of the OAJC's decision and dissent in part, as I would affirm the Superior Court's decision, as discussed below.
I agree with the OAJC that pursuant to 42 Pa.C.S. § 5505, the trial court had the authority to vacate its prior order where, as here, the court's order was not appealed, the court acted within 30 days of the entry of the order, and the court provided notice to the parties of its intent to rescind its prior order.1 OAJC at 8. I also agree with the OAJC that the trial court was not limited to rescinding its order for patent errors, as this limitation applies only to a court correcting an order outside of the 30-day window set forth in Section 5505. See OAJC at 9-10 (citing Commonwealth v. Holmes , 593 Pa. 601, 933 A.2d 57 (2007), and its consolidated companion case, Commonwealth v. Whitfield , for the proposition that jurisdiction to correct errors outside of the 30-day period prescribed by Section 5505 by a trial court is limited to patent errors).
Next, the OAJC properly rejects Appellant's argument that the trial court could not vacate its prior order pursuant to Section 5505 based on facts not of record at the time it granted early termination of Appellant's intermediate sentence on the basis of the Superior Court's decisions in M.P. v. M.P. , 54 A.3d 950 (Pa. Super. 2012) (holding that the trial court abused its discretion in denying mother's custody petition seeking permission to travel with her daughter based on the court's own internet research conducted subsequent to the custody hearing) and Eck v. Eck , 327 Pa.Super. 334, 475 A.2d 825 (1984) (holding that the trial court, in reversing a hearing master's award of alimony, abused its discretion by considering facts and evidence not of record).
Specifically, the OAJC observes that in M.P. and Eck , the trial court orders were reversed because the orders were based on the consideration of evidence outside of the record to which the parties had no notice of, or opportunity to respond. The OAJC notes, "[I]n the instant case, Appellant had notice of the basis for the trial court's modification of its prior order, and, indeed, had the opportunity to respond at a hearing." OAJC at 10. Thus, the OAJC properly finds M.P. and Eck distinguishable from the circumstances presented in this case.
Accordingly, I agree with the OAJC's conclusions and analysis of the foregoing matters, which consist of the totality of the arguments made by Appellant in his brief to this Court. See Appellant's Brief at 12-17. The OAJC, nevertheless, proceeds to address another basis for reversal of the trial court's order, as affirmed by the Superior Court. Analogizing to probation revocation, the OAJC holds that because the trial court failed to condition its grant of Appellant's petition for early termination upon express future conduct, the court's act of vacating its prior order based upon such future conduct deprived Appellant of his liberty interest without due process. OAJC at 14.
This basis for reversal of the lower courts' decisions, however, is outside the scope of this appeal as it was not presented, and therefore necessarily not preserved by Appellant. The OAJC, instead, sua sponte , analogizes the circumstances of this case to probation revocation and posits that, like probation revocation, a person must be given a fair warning of acts that could lead to a loss of liberty. The OAJC justifies its analysis in this regard by concluding that if it were to uphold the trial court's vacation of its prior order granting Appellant's petition for early termination based on his subsequent DUI offense, this Court would be sanctioning a construction of Section 5505 that would violate due process, which, in the OAJC's view, we must avoid. OAJC at 12.
While the OAJC's arguments in favor of reversal of the lower courts' decisions may or may not withstand careful scrutiny, it is a settled principle of appellate review that courts should not reach claims that were not raised below. Commonwealth v. Colavita 606 Pa. 1, 993 A.2d 874, 891 (2010). Likewise, "courts generally should not act sua sponte to raise claims or theories that the parties either did not raise below or failed to raise in their appellate pleadings." Id. "This Court has consistently held that an appellate court cannot reverse a trial court judgment on a basis that was not properly raised and preserved by the parties." Id. (citing Steiner v. Markel , 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (citing Danville Area Sch. Dist. v. Danville Area Educ. Ass'n , 562 Pa. 238, 754 A.2d 1255, 1259 (2000) )). The rule is no different in the constitutional context. Id.
Here, as noted, Appellant has never contended that the trial court erred in vacating its prior order granting him early termination of his sentence of intermediate punishment because doing so is analogous to probation revocation, which, pursuant to due process, requires notice of conditions that will result in revocation. Importantly, absent Appellant's advocacy on this point, there is no counter-argument provided by the Commonwealth to the OAJC's determination.
While the OAJC's position may have some superficial appeal if it was raised, it would seem more applicable to a case involving a final order permitting early termination where the court attempted to revoke its grant after the 30-day period for reconsideration without having provided notice of conditions therefore. Here, we are examining a court's authority to modify its order prior to the order becoming final; a circumstance where courts generally have broad discretion to make adjustments so long as the parties are provided notice that the order may be modified as was done in this case. See OAJC at 10 (noting that "Appellant had notice of the basis for the trial court's modification of its prior order, and, indeed, had the opportunity to respond at a hearing"); see also Moore v. Moore , 535 Pa. 18, 634 A.2d 163, 167 (1993) (acknowledging that "a trial court always has the authority to reconsider its own judgment and that the question of whether or not to exercise that authority is left to the sound discretion of the trial court"); Stockton v. Stockton , 698 A.2d 1334, 1337 (Pa. Super. 1997) (observing that 42 Pa.C.S. § 5505 gives a trial court broad discretion to consider a motion for reconsideration if the motion is filed within thirty days of the entry of the disputed order); Hayward v. Hayward , 808 A.2d 232, 235 (Pa. Super. 2002) (explaining that the lower court's authority under 42 Pa.C.S. § 5505 to modify or rescind an order is almost entirely discretionary; this power may be exercised sua sponte , or may be invoked by a request for reconsideration filed by the parties).
For these reasons, I would conclude that, based on the arguments presented to this Court, Appellant has failed to demonstrate that the trial court abused its discretion pursuant to Section 5505 when it vacated its prior order granting Appellant early termination from intermediate punishment. Accordingly, I would affirm the Superior Court's judgment affirming the trial court's order.
Chief Justice Saylor and Justice Mundy join this concurring and dissenting opinion.