[J-96-2019] [OAJC: Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

TODD DANIEL HOOVER,

Appellant

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No. 25 MAP 2019

Appeal from the Order of Superior 

Court at No. 1893 MDA 2017 dated 

August 31, 2018 Affirming the Order 

dated October 26, 2017, filed 

October 31, 2017, of the Lycoming 

County Court of Common Pleas, 

Criminal Division, at No. CP-41-CR2120-2012

ARGUED: November 19, 2019

CONCURRING OPINION

JUSTICE DONOHUE DECIDED: May 19, 2020

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, 206 A.3d 459, 466 (Pa. 2019) (quoting 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation omitted)) (emphasis 

supplied). The OAJC answers the question accepted for review in terms of the trial court’s 
[J-96-2019] [OAJC: Todd, J.] - 2

“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.
[J-96-2019] [OAJC: Todd, J.] - 3

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.