Commonwealth v. Hoover, T., Aplt. ( 2020 )

[J-96-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 25 MAP 2019
:
Appellee : Appeal from the Order of Superior
: Court dated August 31, 2018 at No.
: 1893 MDA 2017 affirming the Order
v. : of the Court of Common Pleas of
: Lycoming County, Criminal Division,
: dated October 26, 2017 at No. CP-
TODD DANIEL HOOVER, : 41-CR-2120-2012
:
Appellant : ARGUED: November 19, 2019
:
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE TODD DECIDED: May 19, 2020
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sentence of county intermediate punishment).” 42 Pa.C.S. § 9773(a) (repealed).1 On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.
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
1 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.
[J-96-2019] - 2
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
[J-96-2019] - 3
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 (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
[J-96-2019] - 4
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, 475 A.2d 825 (Pa. Super. 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, 933 A.2d 57, 67 (Pa. 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
[J-96-2019] - 5
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.
[J-96-2019] - 6
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, 101 A.3d 79, 87 (Pa. 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, 141 A.3d 1262, 1278 (Pa. 2016). Moreover, in determining legislative intent,
[J-96-2019] - 7
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, 209 A.3d 270, 279 (Pa. 2019) (quoting In re William L., 383 A.2d 1228,
1231 (Pa. 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.
42 Pa.C.S. § 5505.
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
[J-96-2019] - 8
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,2 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,
[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
2 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.
[J-96-2019] - 9
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
[J-96-2019] - 10
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 (1973), and to individuals who are on
parole, see Morrissey v. Brewer, 408 U.S. 471 (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. 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 (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
[J-96-2019] - 11
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 781-82.3
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, 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)).4
3 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 Morrisey. 214 A.3d 1240, 1248 (Pa. 2019).
4 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.
[J-96-2019] - 12
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 (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
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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.5
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
5 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.
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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
[J-96-2019] - 15
have no contact with the victim.6 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.
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.7 For this reason, in order to construe Section
6 The Commonwealth also relies on Moore v. Moore, 634 A.2d 163 (Pa. 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, 465 A.2d 614, 618 n.2 (Pa. 1983). No such considerations are involved in the
instant case.
7 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 4. 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.
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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.8
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.
In addition, while Justice Wecht, in his Concurring Opinion, indicates his
agreement with our due process analysis, see Concurring Opinion (Wecht, J.) at 9, 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.
8 Of course, our holding in this case does not impact or preclude Appellant’s separate
prosecution for his subsequent DUI offense.
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