Reconsideration of Early Release Order based on Subsequent Offense

Commonwealth v. Hoover, 2018 WL 4215020 (Pa. Super. 2018)(unreported), allocatur granted Feb. 27, 2019, appeal docket 25 MAP 2019

In 2013, Hoover pled guilty to driving under the influence of alcohol (“DUI”) – general impairment, and DUI – highest rate of alcohol. The sentencing court sentenced Hoover to a term of 5 years of intermediate punishment, with 90 days to be served at the Lycoming County Prison/pre-release facility, as well as payment of costs and a $1,500 fine.

In 2017, Hoover filed a Petition for early release from supervision. On September 29, 2017, the trial court determined that Hoover had complied with all conditions and obligations of his supervision and had paid all fines and costs, and entered an Order immediately releasing Hoover from intermediate punishment. Later that night, Hoover committed a new DUI offense. Three days later, the Adult Probation Office informed the trial court of Hoover’s new charges, and made an oral Motion for reconsideration of the early release Order. The trial court expressly granted the motion and scheduled a hearing on the matter for October 23, 2017. On October 12, 2017, the sentencing court conducted a probation revocation hearing, during which the court determined that Hoover was not under supervision when he committed the new DUI offense. The trial court conducted the reconsideration hearing on October 23, 2017 and subsequently entered an Order vacating the September 29, 2017 early release Order.

Hoover appealed, raising the following issue for Superior Court review: “Did the lower court err when it vacated its previous Order of September 29, 2017, granting [Hoover] early release from intermediate punishment supervision?” Slip Op. at 2.

Hoover claimed that the trial court erred by vacating the early release arguing that, at the time the Order was filed, the trial court no longer had jurisdiction to vacate the early release Order and that, by entering the early release Order, “the [trial c]ourt implicitly found that he was no longer in need of supervision under his original DUI offense.” Slip Op. at 3.

Section 5505 of the Judicial Code sets forth the general rule regarding a court’s authority to modify final 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.A. § 5505.

While the Order vacating the early release Order was not entered on the docket until October 31, 2017, more than 30 days after the early release Order was filed, Superior Court noted that the trial court expressly granted reconsideration of the early release Order in its October 2, 2017 Order, within the 30-day appeal period. Superior Court affirmed the trial court’s order, reasoning that the trial court expressly granted reconsideration of the early release Order within the 30-day appeal period, therefore the trial court still had jurisdiction to vacate the early release Order.

In a dissent, Judge Kunselman disagreed that the trial court could consider facts that occurred after the early release hearing as a basis for reconsideration of an order, noting that 42 Pa. C.S.A. § 5505, permits modification of an order “except as otherwise provided or prescribed by law.”  Applying the rationale from Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa. 2007), where the Supreme Court held that a trial court may not vacate a sentencing order “merely because it later considers a sentence too harsh or too lenient,” Judge Kunselman interpreted the modification as the court impermissibly reconsidering its order to release Hoover from early supervision as “too lenient” in light of Hoover’s actions after the court entered its order granting early release. Slip Op. at 3-4.

Recognizing that “statutorily the court could reconsider its order within 30 days,” Judge Kunselman questioned the court’s “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.” Concluding that such a result was not the intent of Pa. C.S.A. § 5505, she reasoned:

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. 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.

Slip Op. at 4. While careful not to condone Hoover’s actions, Judge Kunselman agreed 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.’” Slip Op. at 5.

The Supreme Court of Pennsylvania granted allocatur based on the issue Judge Kunselman raised in her dissent:

Did the lower court abuse its discretion when it revoked an [o]rder granting the Petitioner early termination of his intermediate punishment sentence for DUI after discovering that he received a new DUI subsequent to the court issuing [the] early termination?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.