J-S28044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TODD DANIEL HOOVER, 

Appellant.

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1893 MDA 2017

Appeal from the Order Entered, October 31, 2017,

in the Court of Common Pleas of Lycoming County,

Criminal Division at No(s): CP-41-CR-0002120-2012.

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

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

Because the majority memorandum allows a trial court to consider facts 

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

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

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

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

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

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

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

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

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

that took place on September 29, 2017. See e.g. M.P. v. M.P., 54 A.3d 950, 
J-S28044-18

- 2 -

955 (Pa. Super. 2012) (trial court abused its discretion by relying on 

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

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

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

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

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

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

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

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

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

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

of September 29, 2017. 

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

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

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

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

of September 29, 2017. 

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

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

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

reconsideration of its order and scheduled a hearing to consider whether it 
J-S28044-18

- 3 -

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

charges.” T.C.O 1/11/18 at 2. 

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

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

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

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

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

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

namely Hoover’s new charges for DUI.

1

 

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

Supreme Court of Pennsylvania observed the limited judicial power to 

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

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

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

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

____________________________________________

1 The timing of the court’s order dated October 26, 2017, but not entered on 

the docket until October 31, 2017, is not a concern of mine. I agree that on 

October 2, 2017 the trial court specifically granted reconsideration of the 

September 29, 2017 order, which gave the court 120 days to enter an order 

on the reconsideration motion. I question whether Adult Probation had the 

authority to request reconsideration, as it was not the attorney of record for 

the Commonwealth, and it appears the request was made ex parte, but 

Hoover did not challenge the request for reconsideration on those grounds, 

and the court has the power sua sponte to grant reconsideration of its own 

order. 
J-S28044-18

- 4 -

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

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

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

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

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

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

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

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

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

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

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

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

reconsideration would make every order releasing a defendant from IPP 

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

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

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

within 30 days of its order. 

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

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

____________________________________________

2 The logic of the trial court’s action could be extended to other areas of the 

law as well. The statute allowing modification of orders does not render all 

orders “conditional upon subsequent events” for 30 days. 
J-S28044-18

- 5 -

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

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

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

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

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

respectfully, dissent.