In Re: L.W., Appeal of: L.W. ( 2014 )

J-S59014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.W. : No. 2842 EDA 2013
Appeal from the Dispositional Order Entered August 13, 2013,
In the Court of Common Pleas of Philadelphia County,
Juvenile Division, at Nos. CP-51-JV-0040075-2010,
CP-51-JV-0040108-2010, CP-51-JV-0040127-2010,
CP-51-JV-0050441-2007, CP-51-JV-0070191-2007
and CP-51-JV-0110326-2006.
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 16, 2014
Appellant, L.W., appeals from the dispositional order1 entered on
August 13, 2013, by the Philadelphia County Court of Common Pleas. We
affirm.
At the time of the disposition hearing on August 13, 2013, Appellant
was nineteen years old.2 Appellant’s Brief at 8. A review of the record
reveals that in November 2006, at the age of twelve and while in the sixth
grade, Appellant was arrested on charges of robbery, theft, conspiracy,
possession of an instrument of crime, simple assault, receiving stolen
property, and reckless endangerment. He ultimately was adjudicated
*Retired Senior Judge assigned to the Superior Court.
1
We have corrected the caption to reflect that the appeal is from the
dispositional order.
2
Appellant remained a “child” as defined in the Juvenile Act, 42 Pa.C.S. §
6302. In re J.M., 42 A.3d 348, 353 (Pa. Super. 2012).
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delinquent on May 29, 2007, for simple assault and theft, and the remaining
charges were withdrawn. The juvenile court summarized the ensuing facts
and history as follows:
[Appellant] was previously adjudicated delinquent and
placed at two different delinquent institutions. N.T., pp. 2-3.
After his latest discharge from placement, [Appellant] was
placed on probation by this Court. [Appellant’s] adjustment to
probation was “unsatisfactory.” Id. [Appellant] failed to meet
with his probation officer on several occasions. Id. [Appellant]
also tested positive for the illegal use of drugs while on
probation. Id. [Appellant] has an unpaid restitution balance of
$2,715.99. Also while on probation (but following his eighteenth
birthday), [Appellant] was arrested. Id. As a result of that
arrest, [Appellant] was convicted of theft (18 Pa.C.S.A. § 3921
graded as a felony), criminal conspiracy (18 Pa.C.S.A. § 903
graded as a felony), possession of a firearm without a license
(18 Pa.C.S.A. § 6106 graded as a felony), and possession of a
firearm with an altered serial number (18 Pa.C.S.A. § 6110.2
graded as a felony). N.T., pp. 2-3; see also Docket for CP-51-
CR-0001838-2012. [Appellant] was incarcerated in adult prison
for 18 months as a result of his theft and firearm conviction.
N.T., pp. 2-4; see also Docket for CP-51-CR-0001838-2012.
At the disposition hearing, even counsel for [Appellant]
conceded “obviously there are the underlying violations that he
[Appellant] wasn’t complying with probation.” N.T., p. 4.
Accordingly, this Court entered a dispositional order
committing [Appellant] to the State . . . .
Juvenile Court Opinion, 12/10/13, at 2–3.
Appellant filed a post-dispositional motion, titled Motion for
Reconsideration of Commit,3 on August 23, 2013, which was denied on
3
A post-dispositional motion must be filed within ten days of the juvenile
court’s dispositional order. See Pa.R.J.C.P. 620(B)(1) (“[I]f a post-
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August 26, 2013. Appellant thereafter filed a notice of appeal, and both the
juvenile court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following single issue in this appeal:4
Did not the lower court abuse its discretion and violate the
purposes of the Juvenile Act, 42 Pa.C.S.A. § 6301(b), by
committing appellant, a juvenile, to secure placement with the
State, which was not the least restrictive alternative needed to
rehabilitate, supervise, and treat him?
Appellant’s Brief at 3.
Appellant concedes that it is undisputed that he violated the terms of
his juvenile probation by failing to comply with its terms when he incurred
new criminal convictions. Appellant’s Brief at 8. Indeed, his probation
officer, Nicole Marchiano, testified as follows:
Your Honor, on August 2nd, 2013, ordered [the] Probation
Officer to plan for placement. [Appellant] is currently held in the
Juvenile Justice Service Center. He recently was released from
the House of Corrections, after serving 18 to 23 months. He was
also sentenced to eight years of adult probation on VUFA
charges. His adjustment to probation has been unsatisfactory.
He missed several visits. His last drug screen before being
placed for the 18 to 23 months was positive. He owes a total of
$2,715.99. . . . [H]e has already been to Saint Gabe’s, Abraxis
with the State twice . . . .
N.T., 8/13/13, at 2–3.
dispositional motion is filed, it shall be filed no later than ten days after the
imposition of disposition.”). In re C.A.G., 89 A.3d 704, 706 (Pa. Super.
2014).
4
Appellant has abandoned a second issue set forth in his Pa.R.A.P. 1925(b)
statement that asserted there was no evidence Appellant had failed to make
restitution payments and that such failure was willful.
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Appellant maintains that the juvenile court failed to provide reasons
for the dispositional order and failed to provide rationale explaining why
confinement in a youth development center5 was the least restrictive
intervention consistent with the rehabilitation, supervision, and treatment
needs of Appellant. Appellant’s Brief at 9–10, 11. He further contends that
the juvenile court’s disposition was “not imposed to rehabilitate [A]ppellant,
but rather to punish him for failing to pay restitution.” Id. at 16.6
Our standard of review of dispositional orders in juvenile proceedings
is well settled. The Juvenile Act grants juvenile courts broad discretion when
determining an appropriate disposition. In re C.A.G., 89 A.3d 704, 709 (Pa.
Super. 2014). We will not disturb a disposition absent a manifest abuse of
discretion. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012).
The purposes of the Juvenile Act include, inter alia:
(b) Purposes.--This chapter shall be interpreted and construed
as to effectuate the following purposes:
* * *
5
Appellant was committed to State Department of Public Welfare at YDC
Cresson. Order, 8/26/13, at 1.
6
To the extent Appellant makes a passing, one-sentence reference to the
Fourteenth Amendment, Appellant’s Brief at 15, that contention is waived for
failure to raise it below. See, e.g., Commonwealth v. Krum, 533 A.2d
134, 135–136 (Pa. Super. 1987) (en banc) (finding issues of constitutional
dimension are waived where not preserved below); Commonwealth v.
Haughwout, 837 A.2d 480, 486 (Pa. Super. 2003) (same).
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(2) Consistent with the protection of the public interest, to
provide for children committing delinquent acts programs
of supervision, care and rehabilitation which provide
balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the
development of competencies to enable children to become
responsible and productive members of the community.
(3) To achieve the foregoing purposes in a family
environment whenever possible, separating the child from
parents only when necessary for his welfare, safety or
health or in the interests of public safety.
42 Pa.C.S. § 6301(b)(2), (3).
The juvenile court did not lose sight of the Juvenile Act’s purposes. In
the words of the juvenile court judge, “[Appellant] and I have been doing
this dance for a very long time[,] and for some reason he continues to
navigate towards the Criminal Justice System.” N.T., 8/13/13, at 6. Thus,
the judge, who was thoroughly familiar with Appellant’s case, was uniquely
poised to rule regarding Appellant’s placement. Indeed, contrary to
Appellant’s contention that the juvenile court failed to offer reasons for the
commitment, the record reveals that it provided powerful reasons for its
decision to finally commit Appellant to the Pennsylvania Department of
Welfare.
[T]his Court entered a dispositional order committing [Appellant]
to the State based upon, inter alia, the failed prior attempts to
rehabilitate [Appellant] through probation and less restrictive
placements, [Appellant’s] criminal conduct while on probation,
[Appellant’s] illegal drug use while on probation, and
[Appellant’s] failure to satisfy his restitution obligations.
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Juvenile Court Opinion, 12/10/13, at 3. Appellant’s unsupportable focus on
the fact that the juvenile court included Appellant’s nonpayment of
restitution as a basis for its decision overstates the court’s reference to
Appellant’s outstanding restitution while ignoring the many other reasons
cited by the court that compelled placement.
As noted above, Appellant’s probation officer explained that Appellant’s
adjustment to probation had been unsatisfactory. N.T., 8/13/13, at 3. She
also testified that Appellant’s repeated experiences at other juvenile
treatment facilities had failed to dissuade Appellant from further criminal
conduct. Id. at 2–3. Moreover, Appellant tested positive for narcotics use
and repeatedly failed to report for probation. Id. at 2. Finally, in addition to
violating probation on six cases by committing new crimes including firearms
offenses, Appellant failed to comply with the terms of his after-care
probation. Id. at 3–4.
Upon review, we discern no basis to disrupt the juvenile court’s
disposition, and we conclude the record supports the juvenile court’s
analysis. Moreover, the record supports the juvenile court’s determination
that Appellant’s claim that placement with the State is not the least
restrictive alternative necessary to rehabilitate, supervise, and treat him is
unavailing. The court stated:
[Appellant] has unequivocally demonstrated that he cannot be
adequately or safely supervised in the community. This Court
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attempted to treat and rehabilitate [Appellant] through probation
and placement in two delinquent facilities less restrictive than
placement with the State. Unfortunately, these prior attempts to
rehabilitate and treat [Appellant] via less restrictive alternatives
did not achieve those goals. Accordingly, this Court was left with
no less restrictive alternatives in its effort to rehabilitate,
supervise, and treat [Appellant].
Juvenile Court Opinion, 12/10/13, at 4. The record simply does not reflect
that the disposition imposed is a manifest abuse of discretion.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2014
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