Commonwealth v. Hoover, T., Aplt.

[J-96-2019] [OAJC: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 25 MAP 2019
:
Appellee : Appeal from the Order of Superior
: Court at No. 1893 MDA 2017 dated
: August 31, 2018 Affirming the Order
v. : dated October 26, 2017, filed
: October 31, 2017, of the Lycoming
: County Court of Common Pleas,
TODD DANIEL HOOVER, : Criminal Division, at No. CP-41-CR-
: 2120-2012
Appellant :
: ARGUED: November 19, 2019
CONCURRING OPINION
JUSTICE WECHT DECIDED: May 19, 2020
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notice before the original order was vacated and so long as the rescinded order had not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
[J-96-2019] [OAJC: Todd, J.] - 2
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, 612 A.2d 1354, 1357 (Pa. Super.
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, 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,
[J-96-2019] [OAJC: Todd, J.] - 3
955 (Pa. Super. 2012); Ney v. Ney, 917 A.2d 863, 866-67 (Pa. Super. 2007); and Eck v.
Eck, 475 A.2d 825, 827 (Pa. Super. 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
[J-96-2019] [OAJC: Todd, J.] - 4
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, 464 A.2d 1299, 1302
(Pa. Super. 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,
423 A.2d 1299 (Pa. Super. 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
[J-96-2019] [OAJC: Todd, J.] - 5
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.
[J-96-2019] [OAJC: Todd, J.] - 6
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.1 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.
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.2
1 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, 2 A.3d 516, 524 (Pa. 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.
2 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
[J-96-2019] [OAJC: Todd, J.] - 7
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, 715 A.2d 1101, 1106 (Pa. 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, 191 A.3d 782 (Pa. 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.
nothing to do with a court taking judicial notice. As noted, however, subject matter is not
a distinguishing feature in this particular analysis.
[J-96-2019] [OAJC: Todd, J.] - 8
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
[J-96-2019] [OAJC: Todd, J.] - 9
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
[J-96-2019] [OAJC: Todd, J.] - 10
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
[J-96-2019] [OAJC: Todd, J.] - 11
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,
673 A.2d 905, 909 (Pa. 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
[J-96-2019] [OAJC: Todd, J.] - 12
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.
[J-96-2019] [OAJC: Todd, J.] - 13