In the Interest of: B.D.

J-S74019-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: B.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: B.D. : No. 193 EDA 2014
Appeal from the Dispositional Order February 26, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-JV-10000240-2012
and CP-51-JV-10000254-2012
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JANUARY 05, 2015
B.D. appeals from the February 26, 2013 order entered by the
Philadelphia County Court of Common Pleas following his adjudication of
delinquency for criminal conspiracy, criminal mischief, criminal trespass, and
theft by unlawful taking before the Delaware County Court of Common
Pleas.1 Finding the appeal untimely, we quash.
The history of the case, as summarized by the Philadelphia County
juvenile court, is as follows:
On February 4, 2012, [B.D.] was arrested in
Delaware County and charged with Criminal Mischief
(M2) and Criminal Conspiracy to Criminal Mischief
(M2) in violation of 18 Pa.C.S.A. § 3304 on Delaware
County Petition # 2012-000349, Philadelphia Docket
Number CP-51-JV-1000240-2012.
On March 30, 2012, [B.D.] was arrested in
Delaware County and charged with Defiant Trespass
(M3) and Theft by Unlawful Taking (M3) in violation
1
18 Pa.C.S.A §§ 903, 3304, 3503, 3921.
*Retired Senior Judge assigned to the Superior Court.
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of 18 Pa.C.S.A. § 3503(b)(1)(iii) and 18 Pa.C.S.A.
§ 3921 on Delaware County Petition # 2012-000517,
Philadelphia Docket Number CP-51-JV-1000254-
2012.
On September 13, 2012, [B.D.] and his
counsel, Howard Cohen, Esquire, appeared before
the Honorable Barry Dozor of the Delaware County
Court of Common Pleas — Juvenile Division. [B.D.]
entered admissions on both petitions at that time.
[B.D.] was ordered to complete 72 hours of
community service with an additional 32 hours in lieu
of Court Costs. Stay Away Orders were entered on
both petitions. In addition, Judge Dozor ordered
restitution in the amount of $3,706.12 on Delaware
County Petition # 2012-000349, Philadelphia Petition
# CP-51-JV-1000240-2012. Judge Dozor did not
order restitution [on] Delaware County Petition
# 2012-000517, Philadelphia County Petition # CP-
51-JV-1000254-2012.
On September 17, 2012, [B.D.] was
adjudicated delinquent on both petitions before
Judge Dozor. On October 1, 2012, both [p]etitions
were transferred to Philadelphia County for
supervision.
The matter was listed before the Honorable
Robert J. Rebstock on November 27, 2012, but
continued until January 22, 2013. On January 22,
2013, the [c]ourt was not sitting and the matter was
again continued until February 26, 2013.
On February 26, 2013, the [c]ourt placed
[B.D.] on probation and directed that restitution be
paid as ordered by Judge Dozor. In addition, this
[c]ourt ordered random drug screens, mandatory
school, no unexcused absences/latenesses and the
completion [of] community service.
On June 3, 2013, the [c]ourt appointed the
Defender Association of Philadelphia, and the matter
was continued until September 5, 2013.
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On September 5, 2013, the [c]ourt ordered
that [B.D.] remain on [p]robation with the same
conditions as previously ordered.
On September 16, 2013, [B.D.]’s [a]ttorney
filed a Motion to Rescind Restitution Order Nunc Pro
Tunc [before the Philadelphia County juvenile court].
The [c]ourt denied the motion on October 3, 2013.
On October 25, 2013, [B.D.]’s [a]ttorney filed
a Motion for Allowance of Appeal Nunc Pro Tunc. By
operation of law, the Motion for Allowance of Appeal
Nunc Pro Tunc was denied.
Juvenile Court Opinion, 6/4/14, at 1-3 (record citation omitted).
On December 26, 2013, B.D. filed a notice of appeal and thereafter
complied with the juvenile court’s order requiring the filing of a concise
statement of errors complained of on appeal. B.D. presents one issue on
appeal for our review: “Was restitution improperly ordered without
determining [B.D.]’s ability to pay?” B.D.’s Brief at 2.
Prior to addressing the merits of this issue, we must first consider the
Commonwealth’s contention that the appeal is untimely. See
Commonwealth’s Brief at 8-9. The Rules of Juvenile Court Procedure state
that in the absence of a timely filed post-dispositional motion, a juvenile
must file a notice of appeal from a dispositional order within thirty days of
that order. Pa.R.J.C.P. 620(B)(3). For a post-dispositional motion to be
timely, the juvenile must file it within ten days of the imposition of the
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dispositional order. Pa.R.J.C.P. 620(B)(1). Following the timely filing of a
post-dispositional motion, the juvenile must file a notice of appeal
(a) within thirty days of the entry of the order
deciding the motion;
(b) within thirty days of the entry of the order
denying the motion by operation of law in cases in
which the judge fails to decide the motion; or
(c) within thirty days of the entry of the order
memorializing the withdrawal in cases in which a
party withdraws the motion.
Pa.R.J.C.P. 620(B)(2).
The record in this case reflects a procedural morass. The order
complained of on appeal is the February 26, 2013 order entered by the
Philadelphia County juvenile court. See Notice of Appeal, 12/26/13. At that
hearing, the Philadelphia County juvenile court accepted supervision over
B.D. and entered the following order: “The juvenile shall be placed on
[p]robation under the supervision of the Philadelphia Juvenile Probation
Department. Restitution to be paid as ordered in Delaware County,
[r]andom drug screens, [m]ust attend school, no unexcused absences,
lateness, cutting or suspensions, complete community service hours.”
Juvenile Court Order, 2/26/13. The record reflects that B.D. did not have
counsel at this hearing; it was not until June 3, 2013 that the juvenile court
appointed counsel to represent B.D. in the Philadelphia proceedings, at
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which time it appointed current counsel, Defender Association of
Philadelphia. See N.T., 2/26/13, at 7; Juvenile Court Order, 6/3/13.
At the September 5, 2013 review hearing, counsel for B.D. attempted
to question the juvenile court regarding the restitution order. The juvenile
court informed counsel that any question regarding the restitution order
must be addressed to the Delaware County juvenile court. Nonetheless, on
September 16, 2013, counsel for B.D. filed a post-dispositional motion nunc
pro tunc before the Philadelphia County juvenile court requesting that the
court rescind the order requiring B.D. to pay restitution, alleging:
(1) [B.D.] was unrepresented by counsel at the
disposition hearing at which restitution was ordered,
and (2) it failed to inquire into [B.D.]’s ability to pay
before ordering restitution, and (3) the facts alleged
in the petitions and supporting documents generated
in Delaware County fail to sufficiently assert the
basis for the restitution amount ordered.
See Motion to Rescind Restitution Order Nunc Pro Tunc, 9/16/13. On
October 3, 2013, the juvenile court denied that motion. Juvenile Court
Order, 10/3/13.
On October 25, 2013, counsel for B.D. filed a motion for permission to
appeal the February 26, 2013 order nunc pro tunc in the Philadelphia County
juvenile court. Motion for Allowance of Appeal Nunc Pro Tunc, 10/25/13.
The court took no action on that motion for more than thirty days, resulting
in its denial by operation of law. Juvenile Court Order, 12/19/13; see also
Pa.R.J.C.P. 625(E)(1) (stating that if the juvenile court fails to decide a
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motion for nunc pro tunc relief within thirty days, the motion is deemed
denied by operation of law).
Counsel for B.D. subsequently filed a notice of appeal to this Court on
December 26, 2014. As stated hereinabove, however, he appeals from the
February 26, 2013 order, the notice of appeal for which was filed ten months
after the order. Counsel makes no argument regarding the juvenile court’s
denial of his request to appeal the February 26, 2013 order nunc pro tunc or
the denial of his motion for post-dispositional relief nunc pro tunc, both of
which, as explained below, are final, appealable orders.
Although not developed in the argument section of his appellate brief,
in a footnote in the statement of facts, counsel for B.D. appears to suggest
that a direct appeal nunc pro tunc is a matter of right in a juvenile
proceeding. See B.D.’s Brief at 5 & n.1 (citing In Interest of A.P., 617
A.2d 764 (Pa. Super. 1992) (en banc), aff’d, 639 A.2d 1181 (Pa. 1994)). In
A.P., the court adjudicated the juvenile delinquent and placed him on
probation. In Interest of A.P., 617 A.2d at 766. Approximately two
months later, new counsel from the same public defender’s office that
employed trial counsel filed a motion for permission to file an appeal nunc
pro tunc, which the juvenile court denied. Id. Counsel filed a notice of
appeal on A.P.’s behalf, asserting, inter alia, that the juvenile court erred by
denying the motion to appeal nunc pro tunc “where the failure to timely file
a notice of appeal was due to ineffective assistance of counsel that was
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apparent on this record[.]” Id.2 Finding that a juvenile has the right to
appeal from a dispositional order and that a juvenile also has the right to
effective assistance of counsel, this Court concluded that counsel’s failure to
file a direct appeal from the dispositional order, in the absence of A.P.’s
express waiver, constituted per se ineffective assistance of counsel. Id. at
767. Because A.P., as a juvenile adjudicated delinquent, had no recourse to
challenge trial counsel’s ineffectiveness pursuant to the Post Conviction
Relief Act, the only remedy available to A.P. at that time for the denial of his
constitutional right to appeal the dispositional order because of counsel’s
ineffectiveness was to permit the filing of a direct appeal nunc pro tunc. Id.
at 768. We therefore reversed the juvenile court’s denial of A.P.’s motion to
appeal nunc pro tunc and proceeded to decide the substantive issues raised
on appeal. Id.In the years since we decided A.P., our Supreme Court amended the
Rules of Juvenile Court Procedure, inter alia, setting forth procedures for the
filing and review of motions for nunc pro tunc relief in a delinquency matter.
2
As the Court in A.P. observed, generally, “a public defender may not
argue the ineffectiveness of another member of that public defender’s office
who represented the client at a previous stage in the proceedings.”
Commonwealth v. Fetzner, 539 A.2d 890, 892 (Pa. Super. 1988).
However, “an exception to the general rule was expanded to allow one
member of a public defender’s office to raise the ineffectiveness of another
member of the same office provided that reversible error was apparent on
the record.” Id. (citing Commonwealth v. McNeal, 396 A.2d 424, 426
(Pa. Super. 1978) (en banc)).
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See Pa.R.J.C.P. 622, 625.3 Pursuant to Rule 622(A), “[a] motion for nunc
pro tunc relief shall be filed by the juvenile with the clerk of courts in the
court in which the alleged error occurred as soon as possible but no later
than sixty days after the date that the error was made known.” Pa.R.J.C.P.
622(A). Rule 622(C) sets forth a list of what must be included in a motion
for nunc pro tunc relief. Rule 622(D) provides the Commonwealth the
opportunity to file an answer. Finally, Rule 625 governs the disposition of a
motion for relief nunc pro tunc. See generally Pa.R.J.C.P. 625. It is
therefore clear that reinstatement of direct appeal rights nunc pro tunc are
not automatic, but such a request may be granted in appropriate cases.4
Moreover, Rule 625(F) indicates that the denial of a motion for relief nunc
pro tunc is itself a final, appealable order. See Pa.R.J.C.P. 625(F).
There is no question that B.D. was entitled to counsel at the February
26, 2013 hearing.5 Although the record reflects that counsel for B.D. raised
3
Rule 622 anticipates the raising of claims of counsel’s ineffectiveness in a
motion for relief nunc pro tunc, rendering the continued viability of the
analysis in A.P. doubtful. See Pa.R.J.C.P. 622(B) (“If alleged ineffective
assistance of counsel is the basis for the motion, counsel is to withdraw
pursuant to Rule 150(C) and the judge shall assign new counsel.”).
4
Curiously, although Rule 622 became effective on April 1, 2012, and
counsel’s motions for nunc pro tunc relief were filed on September 16, 2013
and October 25, 2013, respectively, neither motion references Rule 622 or
its requirements.
5
The law is clear that a juvenile is entitled to representation “at all stages
of any proceedings” held under the Juvenile Act. 42 Pa.C.S.A. § 6337. A
child in a delinquency matter is “presumed indigent,” and “[i]f child appears
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this issue in the September 16, 2013 post-dispositional motion nunc pro
tunc, counsel did not appeal from the denial of that motion and makes no
argument on appeal regarding the juvenile court’s decision to proceed in the
absence of counsel representing B.D. at the February 26, 2013 hearing.
Rather, B.D. filed an untimely appeal from the February 26, 2013 order,
raising only the propriety of the adoption of the Delaware County juvenile
court’s restitution order without first holding a hearing on B.D.’s ability to
pay. See B.D.’s Brief at 8-10. We therefore have no jurisdiction to decide
this appeal and powerless to address the substantive issue raised or the
clear error committed by the juvenile court in failing to provide B.D. with
counsel at that hearing. See Commonwealth v. Williams, __ A.3d __,
2014 WL 3672870, *3 (Pa. July 21, 2014) (stating that “an appellant’s
failure to appeal timely an order generally divests the appellate court of its
jurisdiction to hear the appeal”).
In support of its conclusion that we are permitted to decide the issue
raised on appeal, the Dissent relies upon In re J.M.P., 863 A.2d 17 (Pa.
at any hearing without counsel, the court shall appoint counsel for the child
prior to the commencement of the hearing.” 42 Pa.C.S.A. § 6337.1(b)(1).
The record reflects that the Commonwealth alerted the juvenile court in the
middle of the proceeding, prior to the court entering its dispositional order,
that B.D. was unrepresented. N.T., 2/26/13, at 7. The juvenile court
responded by saying: “That’s because he had an attorney out in Delaware
County,” but then failed to appoint counsel to represent B.D. at that hearing
or continue the hearing for counsel from Delaware County to be present.
Id.
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Super. 2004), wherein this Court stated that appellate counsel’s failure to
preserve the appellate rights of a juvenile adjudicated delinquent constitutes
per se ineffective assistance of counsel. Dis. at 2 (citing In re J.M.P., 863
A.2d at 20). The Dissent thus concludes, “Because counsel was per se
ineffective in failing to preserve B.D.’s appellate rights, in combination with
the breakdown of the system by failure to appoint counsel, I conclude that
this Court should not quash this appeal and should consider the merits.” Id.
at 3.
Like the Dissent, it would be our preference to reach the merits of the
issue raised on appeal. The Dissent, however, omits from its discussion that
in J.M.P., we found that we could not review the merits of the issues raised
in the untimely appeal nunc pro tunc6 pursuant to a finding that counsel was
ineffective per se, as J.M.P. did not include an ineffectiveness claim on
appeal. In re J.M.P., 863 A.2d at 20. Because “an appellate court is not to
raise sua sponte issues which it perceives in the record where those issues
6
In J.M.P., counsel originally filed a timely notice of appeal, but
erroneously filed a praecipe to withdraw the appeal while it was pending
before this Court. In re J.M.P., 863 A.2d at 18. Counsel then petitioned
the juvenile court to reinstate J.M.P.’s appeal rights nunc pro tunc, which the
juvenile court granted. Id. Counsel filed the notice of appeal two days after
the end of the appeal period. Id. Counsel for J.M.P. advised this Court that
she was never informed that she had to file a notice of appeal following the
juvenile court’s reinstatement of J.M.P.’s appeal rights nunc pro tunc; she
was under the mistaken belief that once the juvenile court granted the
request that the appeal would proceed without any additional filings or
action. Id. When the juvenile court informed her, two days after the
appeals period ended that she in fact had to file a notice of appeal, counsel
did so immediately. Id.
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are not presented at the appeal level,” we found that J.M.P. was not entitled
to relief on that basis. Id. (citing Commonwealth v. McKenna, 383 A.2d
174, 179 (Pa. 1978)).
Rather, we found we could decide the merits of the appeal because
counsel for J.M.P. failed to timely file the notice of appeal as a result of the
juvenile court’s failure to inform counsel that she must file a notice of appeal
within thirty days of the order reinstating J.M.P.’s appeal rights nunc pro
tunc. Id. at 21. We found that this constituted “a breakdown in the court’s
operation such that we are justified in declining to quash the appeal.” Id.
In the case at bar, counsel for B.D. did not raise an ineffectiveness
claim on appeal. Thus, pursuant to J.M.P., we are precluded from sua
sponte finding that counsel was ineffective per se and deciding the merits of
the issue raised on that basis. See id. at 20. Nor does counsel allege that
the failure to inform B.D. of his appellate rights at the February 26, 2013
hearing caused the untimely filing of the instant appeal. To the contrary,
the record reflects that counsel clearly recognized that any appeal from the
February 26, 2013 order was untimely, as she expressly requested to file an
appeal nunc pro tunc from that order. Therefore, unlike in J.M.P., the
juvenile court’s failure to inform B.D. of the time for filing an appeal from
that order does not provide justification for deciding the issue raised. See
id. at 21.
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This does not leave the B.D. without an avenue for relief. As stated
above, Rule 622 of the Rules of Juvenile Court Procedure permit a juvenile to
file for nunc pro tunc relief within “sixty days after the date that the error
was made known.” Pa.R.J.C.P. 622(A). The Rule specifically permits the
basis for this motion to be a claim of counsel’s ineffectiveness for failing to
preserve his right to appellate review or to properly effectuate his appeal.
Pa.R.J.C.P. 622(B).7
Based upon the untimeliness of the appeal and the arguments raised
on appeal, we are without jurisdiction to decide the appeal or to excuse the
untimeliness. See Williams, 2014 WL 3672870 at *3; In re J.M.P., 863
A.2d at 20-21. As such, we are constrained to quash the appeal.
Appeal quashed.
Bender, P.J.E. joins the Memorandum.
Strassburger, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2015
7
Rule 622(B) states: “If alleged ineffective assistance of counsel is the
basis for the motion, counsel is to withdraw pursuant to Rule 150(C) and the
judge shall assign new counsel.” Pa.R.J.C.P. 622(B).
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