In re: S.M. Appeal of: S.M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: S.M., A JUVENILE : No. 1023 EDA 2013
Appeal from the Order Entered March 8, 2013,
In the Court of Common Pleas of Lehigh County,
Juvenile Division, at No. CP-39-JV-0000148-2013.
BEFORE: BENDER, P.J., SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 23, 2014
Appellant, S.M., a juvenile, appeals from the dispositional order
entered on March 8, 2013, adjudicating him delinquent. We reverse.
The record reveals that on March 8, 2013, following a hearing, the
juvenile court adjudicated S.M. delinquent of robbery graded as a felony of
the third degree. The juvenile court committed S.M. to the Abraxas
Academy for juvenile male offenders.
On April 4, 2013, S.M. filed a timely notice of appeal. On April 16,
2013, the juvenile court directed S.M. to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). S.M. timely filed his
Pa.R.A.P. 1925(b) statement on April 24, 2013, alleging that the evidence
was insufficient to establish the elements of robbery.
On June 25, 2013, 109 days after the March 8, 2013 dispositional
order, the juvenile court issued an amended order adjudicating S.M.
________________
*Former Justice specially assigned to the Superior Court.
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delinquent of conspiracy to commit robbery as opposed to robbery. The
juvenile court then directed S.M. to file an amended Pa.R.A.P. 1925(b)
statement challenging the conspiracy adjudication. S.M. dutifully complied
and asserted the evidence was insufficient to support the adjudication for
criminal conspiracy. The juvenile court filed a Pa.R.A.P. 1925(a) opinion
addressing this claim on August 5, 2013.
In an unpublished memorandum filed on April 8, 2014, this Court
order adjudicating S.M. delinquent of conspiracy rather than robbery. As
noted above, the juvenile court purported to amend the dispositional order
to change the criminal act underlying the adjudication of delinquency more
than thirty days after the order was entered and after the appeal was filed.
In our prior decision, this Court concluded that the juvenile court was
without jurisdiction to take such action and in doing so, violated 42 Pa.C.S. §
5505.1 In that prior memorandum we stated as follows:
1
42 Pa.C.S. § 5505 provides as follows:
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.
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Therefore, once the thirty day period announced in section
5505 has expired or once a defendant files a notice of appeal,
the trial court is without jurisdiction to alter or modify its order.
Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super.
2007).
N
[sic] powers to amend its records, to correct mistakes of the
clerk or other officer of the court, inadvertencies of counsel, or
supply defects or omissions in the record, even after the lapse of
th In re K.R.B., 851 A.2d 914, 918 (Pa. Super. 2004)
the court would normally be divested of jurisdiction, a court may
Id.
(citation omitted).
Here, the juvenile court alleged that its intent was to
adjudicate S.M. delinquent of conspiracy and not robbery.
Juvenile Court Opinion, 8/5/13, at 1. However, the intent of the
juvenile court is irrelevant. See Commonwealth v. Borrin, 80
A.3d 1219 (Pa. 2013) (in considering alteration of an order
Therefore, in the case at bar, while the juvenile court was
permitted to correct a patent mistake, we conclude that
changing the criminal act underlying the adjudication of
delinquency after the appeal was filed was improper. See
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007)
(discussing the type of errors that may be corrected through the
forth in 42 Pa.C.S.A.
§ 5505 and permitting the trial court to correct an illegal
sentence).1 Additionally, the Holmes Court went on to clarify:
Although the defendants before this court
warrant relief under the inherent power of courts to
correct patent errors, we must also emphasize the
limits of this power. This exception to the general
rule of Section 5505 cannot expand to swallow the
rule. In applying the exception to the cases at bar,
we note that it is the obviousness of the
illegality, rather than the illegality itself, that
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Holmes, 933 A.2d at 66-67 (emphasis added).
1
The two cases predominantly analyzed in Holmes
are: Commonwealth v. Cole, 263 A.2d 339, 341
(Pa. 1970) (allowing the trial court to correct an
for a new trial and arrest of judgment because the
order was clearly antagonistic), and
Commonwealth v. Klein, 781 A.2d 1133 (Pa.
2001) (holding that a trial court had jurisdiction to
correct manifest error in the calculation of the
appeal).
Here, there is nothing patently and obviously erroneous
not correcting an illegal sentence or amending a contradictory
What the juvenile court did was tantamount to a criminal court
changing the verdict while a case was on appeal. We cannot
conclude that the juvenile court was permitted to change its
original order under the inherent powers described in Holmes.
Accordingly, the ju
S.M. delinquent of conspiracy is a nullity, and S.M. remains
adjudicated delinquent of robbery pursuant to the dispositional
order entered on March 8, 2013.
In re S.M., 1023 EDA 2013, ___ A.3d ___ (Pa. Super. filed April 8, 2014)
(unpublished memorandum at 3-4).
Additionally, due to the myriad procedural missteps in this matter, we
remanded this matter to the juvenile court to allow for the filing of a
P. 1925(b)
statement in which he challenged the adjudication of delinquency for
robbery. On June 25, 2014, the juvenile court filed its opinion, and the
parties filed responsive briefs.
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In its June 25, 2014 opinion, the juvenile court provides an
explanation of the reason it amended the original order and cites to In re
K.R.B., 851 A.2d 914, 918 (Pa. Super. 2004). However, this Court has
already decided the issue as to whether the juvenile court was merely
correcting a patent mistake in the negative. In re S.M., (unpublished
order a nullity. Id.
This Court, in our prior memorandum, directed the juvenile court prior
to provide a basis for adjudicating S.M. delinquent of the crime of robbery.
In re S.M., (unpublished memorandum at 4). Upon review, nothing in the
of robbery. Moreover, nothing in the record supports an adjudication of the
crime of robbery.
Accordingly, we conclude the evidence was insufficient to sustain
errors that occurred in the juvenile court or countenance their correction
after the thirty day period lapsed. Holmes, 933 A.2d at 66-67. For the
reasons set forth above, the dispositional order adjudicating S.M. delinquent
of robbery is reversed.
Order reversed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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