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PA Bulletin, Doc. No. 11-1091

THE COURTS

Title 237—JUVENILE RULES

PART I. RULES

[ 237 PA. CODE CHS. 5 AND 6 ]

Renumbering of Rule 520 to 620 and New Rules 622, 625 and 628

[41 Pa.B. 3528]
[Saturday, July 2, 2011]

 The Juvenile Court Procedural Rules Committee is planning to recommend to the Supreme Court of Pennsylvania that the renumbering of Rule 520 to 620 and new Rules 622, 625, and 628 be adopted and prescribed. These proposed modifications and additions address nunc pro tunc relief.

 The following Explanatory Report highlights the intent of these Rules. Please note that the Committee's Reports should not be confused with the official Committee Comments to the Rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Explanatory Reports.

 The Committee requests that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Christine Riscili at juvenilerules@pacourts.us. Email is the preferred method for receiving comments in an effort to conserve paper and expedite the distribution of comments to the Committee. Emailed comments need not be reproduced and sent via hard copy. The Committee will acknowledge receipt of your comment.

 For those who do not have access to email, comments may be faxed to the Committee at 717-231-9541 or written comments may be mailed to:

 Christine Riscili, Esq., Counsel
Supreme Court of Pennsylvania
Juvenile Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave, Suite 6200
P. O. Box 62635
Harrisburg, PA 17106-2635.

 All comments shall be received no later than August 12, 2011.

By the Juvenile Court
Procedural Rules Committee:

GEORGE D. MOSEE, Jr., Esq., 
Chair

Annex A

TITLE 237. JUVENILE RULES

PART I. RULES

Subpart A. DELINQUENCY MATTERS

CHAPTER 5. DISPOSITIONAL HEARING

PART C. [POST-DISPOSITIONAL MOTIONS] (Reserved)

 (Editor's Note: As part of this proposal, the Committee is proposing to renumber Rule 520, which appears in 237 Pa. Code pages 5-5—5-10, serial pages (347943)—(347948), as Rule 620.)

Rule 520. [Post-Dispositional Motions] (Reserved and Renumbered).

CHAPTER 6. POST-DISPOSITIONAL PROCEDURES

PART B. MODIFICATIONS[,] AND REVIEWS[, AND APPEALS]

Rule

605.Detaining Juvenile for Modification of the Dispositional Order or Violation of Probation.
610.Dispositional and Commitment Review.
612.Modification or Revocation of Probation.
613.Termination of Court Supervision (Reserved).
616.Post-Dispositional Procedures; Appeal (Reserved).
617.Release of Juvenile Pending Appeal (Reserved).

PART C. MOTIONS AND NUNC PRO TUNC RELIEF

620.

Post-Dispositional Motions.
622.Motion for Nunc Pro Tunc Relief.
625.Hearing and Findings on Motion for Nunc Pro Tunc Relief.
628.Order of Court on Motion for Nunc Pro Tunc Relief.

 (Editor's Note: The following rules are new and printed in regular type to enhance readability.)

Rule 620. Post-Dispositional Motions.

 A. Optional Post-Dispositional Motion.

 1) The parties shall have the right to make a post-dispositional motion. All requests for relief from the court shall be stated with specificity and particularity, and shall be consolidated in the post-dispositional motion.

 2) Issues raised before or during the adjudicatory hearing shall be deemed preserved for appeal whether or not the party elects to file a post-dispositional motion on those issues.

 B. Timing.

 1) If a post-dispositional motion is filed, it shall be filed no later than ten days after the imposition of disposition.

 2) If a timely post-dispositional motion is filed, the notice of appeal shall be filed:

 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.

 3) If a post-dispositional motion is not timely filed, a notice of appeal shall be filed within thirty days of the imposition of disposition.

 C. Court Action.

 1) Briefing Schedule and Argument. Within ten days of the filing of the post-dispositional motion, the court shall:

 a) determine if briefs, memoranda of law, or oral arguments are required; and

 b) set a briefing schedule and dates for oral argument, if necessary.

 2) Failure to Set Schedule. If the court fails to act according to paragraph (C)(1), briefs and oral arguments are deemed unnecessary.

 3) Transcript. If the grounds asserted in the post-dispositional motion do not require a transcript, neither the briefs nor arguments on the post-dispositional motion shall be delayed for transcript preparation.

 D. Time Limits for Decision on Motion. The judge shall not vacate disposition pending the decision on the post-dispositional motion, but shall decide the motion as provided in this paragraph.

 1) Except as provided in paragraph (D)(2), the judge shall decide the post-dispositional motion as soon as possible but within thirty days of the filing of the motion. If the judge fails to decide the motion within thirty days, or to grant an extension as provided in paragraph (D)(2), the motion shall be deemed denied by operation of law.

 2) Upon motion of a party within the 30-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.

 3) When a post-dispositional motion is denied by operation of law, the clerk of courts shall enter an order on behalf of the court, and, as provided pursuant to Rule 167, shall serve a copy of the order on each attorney and the juvenile, if unrepresented, that the post-dispositional motion is deemed denied. This order is not subject to reconsideration.

 4) If the judge denies the post-dispositional motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 167.

 5) If a party withdraws a post-dispositional motion, the judge promptly shall issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 167.

 E. Contents of order. An order denying a post-dispositional motion, whether issued by the judge pursuant to paragraph (D)(4) or entered by the clerk of courts pursuant to paragraph (D)(3), or an order issued following a party's withdrawal of the post-dispositional motion pursuant to paragraph (D)(5), shall include notice to the party of the following:

 1) the right to appeal;

 2) the time limits within which the appeal shall be filed; and

 3) the right to counsel in the preparation of the appeal.

 F. After-discovered evidence. A motion for a new adjudication on the grounds of after-discovered evidence shall be filed in writing promptly after such discovery. If an appeal is pending, the judge may grant the motion only upon remand of the case.

Comment

 The purpose of this rule is to promote the fair and prompt resolution of all issues relating to admissions, adjudication, and disposition by consolidating all possible motions to be submitted for court review, and by setting reasonable but firm time limits within which the motion is to be decided. Because the post-dispositional motion is optional, a party may choose to raise any or all properly preserved issues in the trial court, in the appellate court, or both.

 For the definition of ''disposition,'' see Rule 120 and its Comment.

OPTIONAL POST-DISPOSITIONAL MOTION

 See In re Brandon Smith, 393 Pa. Super. 39, 573 A.2d 1077 (1990), for motions on ineffective assistance of counsel.

 Under paragraph (A)(2), any issue raised before or during adjudication is deemed preserved for appeal whether a party chooses to raise the issue in a post-dispositional motion. It follows that the failure to brief or argue an issue in the post-dispositional motion would not waive that issue on appeal as long as the issue was properly preserved, in the first instance, before or during adjudication. Nothing in this rule, however, is intended to address Pa.R.A.P. 1925(b) or the preservation of appellate issues once an appeal is filed. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) (any issues not raised in a 1925(b) statement will be deemed waived).

 Under paragraph (B)(1), if a party chooses to file a post-dispositional motion, the motion is to be filed within ten days of imposition of disposition. The filing of the written post-dispositional motion triggers the time limits for decision on the motion. See paragraph (D)(1).

TIMING

 Paragraph (B) contains the timing requirements for filing the optional post-dispositional motion and taking an appeal. Under paragraph (B)(1), the post-dispositional motion is to be filed within ten days of imposition of disposition. Supplemental motions may be filed but the time requirements of paragraph (B)(1) are to be followed.

 When a party files a timely post-dispositional motion, the 30-day period for the juvenile's direct appeal on all matters in that case is triggered by the judge's decision on the post-dispositional motion, the denial of the motion by operation of law, or the withdrawal of the post-dispositional motion. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. No direct appeal may be taken by the party while the post-dispositional motion is pending. See paragraph (B)(2).

 If no timely post-dispositional motion is filed, the party's appeal period runs from the date disposition is imposed. See paragraph (B)(3).

BRIEFS; TRANSCRIPTS; ARGUMENT

 Under paragraph (C)(1), the judge should determine, on a case-by-case basis, whether briefs, memoranda of law, or arguments are required for a fair resolution of the post-dispositional motion. If they are not needed, or if a concise summary of the relevant law and facts is sufficient, the judge should so order. Any local rules requiring briefs or oral argument are inconsistent with this rule. See Rule 121(E).

 Under paragraph (C)(3), the judge, in consultation with the attorneys, should determine what, if any, portions of the notes of testimony are to be transcribed so that the post-dispositional motion can be resolved. The judge should then set clear deadlines for the court reporter to insure timely resolution of the motion. Nothing in this rule precludes the judge from ordering the transcript or portions of it immediately after the conclusion of the adjudicatory hearing or the entry of an admission.

 For the recording and transcribing of court proceedings generally, see Rule 127. The requirements for the record and the writing of an opinion on appeal are set forth in the Pennsylvania Rules of Appellate Procedure.

 There is no requirement that oral argument be heard on every post-dispositional motion. When oral argument is heard on the post-dispositional motion, the juvenile need not be present.

DISPOSITION

 Under paragraph (D), once a party makes a timely written post-dispositional motion, the judge retains jurisdiction for the duration of the disposition period. The judge may not vacate the order imposing disposition pending decision on the post-dispositional motion.

 Paragraph (D)(2) permits one 30-day extension of the 30-day time limit, for good cause shown, upon motion of a party. In most cases, an extension would be requested and granted when new counsel has entered the case. Only a party may request such an extension. The judge may not, sua sponte, extend the time for decision: a congested court calendar or other judicial delay does not constitute ''good cause'' under this rule.

 The possibility of an extension is not intended to suggest that thirty days are required for a decision in most cases. The time limits for resolution of the post-dispositional motion are the outer limits. Easily resolvable issues, such as a modification of disposition or an admission challenge, should ordinarily be decided in a much shorter period of time.

 If the judge decides the motion within the time limits of this rule, the judge may grant reconsideration on the post-dispositional motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701(b)(3), but the judge may not vacate the disposition pending reconsideration. The reconsideration period may not be used to extend the timing requirements set forth in paragraph (D) for decision on the post-dispositional motion: the time limits imposed by paragraphs (D)(1) and (D)(2) continue to run from the date the post-dispositional motion was originally filed. The judge's reconsideration, therefore, is to be resolved within the 30-day decision period of paragraph (D)(1) or the 30-day extension period of paragraph (D)(2), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-dispositional motion, including any issues raised for reconsideration, will be denied pursuant to paragraph (D)(3).

 Under paragraph (D)(1), on the date when the court disposes of the motion, or the date when the motion is denied by operation of law, the judgment becomes final for the purposes of appeal. See Judicial Code, 42 Pa.C.S. §§ 102, 722, 742, 5105(a) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). See Pa.R.A.P. 341.

 An order entered by the clerk of courts under paragraph (D)(3) constitutes a ministerial order and, as such, is not subject to reconsideration or modification pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701.

 If the motion is denied by operation of law, paragraph (D)(3) requires that the clerk of courts enter an order denying the motion on behalf of the court and immediately notify the attorneys, or the juvenile, if unrepresented, that the motion has been denied. This notice is intended to protect the party's right to appeal. The clerk of courts also is to comply with the filing, service, and docket entry requirements of Rule 167.

CONTENTS OF ORDER

 Paragraph (E) protects a party's right to appeal by requiring that the judge's order denying the motion, the clerk of courts' order denying the motion by operation of law, or the order entered memorializing a party's withdrawal of a post-dispositional motion, contain written notice of the party's appeal rights. This requirement ensures adequate notice to the party, which is important given the potential time lapse between the notice provided at disposition and the resolution of the post-dispositional motion. See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. Ct. 1998), concerning the contents of the order memorializing the withdrawal of a post-dispositional motion.

 When a party withdraws a post-dispositional motion in open court and on the record, the judge should orally enter an order memorializing the withdrawal for the record, and give the party notice of the information required by paragraph (E). See Commonwealth v. Miller, supra.

MISCELLANEOUS

 Under paragraph (A)(1), the grounds for the post-dispositional motion should be stated with particularity. Motions alleging insufficient evidence, for example, are to specify in what way the evidence was insufficient, and motions alleging that the court's findings were against the weight of the evidence are to specify why the findings were against the weight of the evidence.

 Because the post-dispositional motion is optional, the failure to raise an issue with sufficient particularity in the post-dispositional motion will not constitute a waiver of the issue on appeal as long as the issue was preserved before or during adjudication. See paragraph (A)(2).

 Issues properly preserved at the dispositional hearing need not, but may, be raised again in a motion to modify disposition in order to preserve them for appeal. In deciding whether to move to modify disposition, counsel carefully is to consider whether the record created at the dispositional hearing is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995). As a general rule, the motion to modify disposition under paragraph (A)(1) gives the dispositional judge the earliest opportunity to modify the disposition. This procedure does not affect the court's inherent powers to correct an illegal disposition or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (court can, sua sponte, correct an illegal sentence even after the defendant has begun probation or placement) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

 Once a disposition has been modified or reimposed pursuant to a motion to modify disposition under paragraph (A)(1), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify disposition in order to preserve an issue for appeal, as long as the issue was properly preserved at the time disposition was modified or reimposed.

 Official Note: Rule 520 adopted May 17, 2007, effective August 20, 2007; amended July 28, 2009, effective immediately. Amended January 11, 2010, effective March 1, 2010.

Committee Explanatory Reports:

 Final Report explaining the provisions of Rule 520 published with the Court's Order at 37 Pa.B. 2506 (June 2, 2007).

 Final Report explaining the amendment to Rule 520 published with the Court's Order at 39 Pa.B. 4743 (August 8, 2009).

Rule 622. Motion for Nunc Pro Tunc Relief.

 A. Timing. A motion for nunc pro tunc relief shall be filed 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 known or reasonably should have been known through the exercise of due diligence.

 B. Counsel.

 1) The juvenile is to retain the same counsel as assigned pursuant to Rule 151 unless ineffective assistance of counsel is alleged.

 2) If alleged ineffective assistance of counsel is the basis for the appeal, counsel is to withdraw pursuant to Rule 150(C) and the judge shall assign new counsel.

 C. Contents of Motion. A motion for relief under this rule shall include:

 1) the name of the juvenile and case docket number;

 2) the location of the juvenile;

 3) the delinquent acts for which the juvenile was adjudicated delinquent;

 4) if ineffective assistance of counsel is alleged, the name of counsel who allegedly rendered ineffective assistance;

 5) the relief requested;

 6) a statement that one of the following requirements for the relief has been met:

 a) there is a need for correction of an error to accurately reflect the court's findings; or

 b) allegations that:

 1) the juvenile has been adjudicated delinquent and is under the court's supervision;

 2) there is a legitimate basis for the relief requested; and

 3) there are sufficient facts upon which to conclude the delay for the motion was justified and should be overlooked in the interest of justice.

 7) the facts supporting the grounds for relief and sufficient facts to support the delay of the motion for relief that:

 a) appear in the record, and the place in the record where they appear; and

 b) do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;

 8) whether the grounds for the relief requested were raised before, and if so, at what stage of the proceedings;

 9) a verification that the facts set forth in the motion are true and correct to the best of the movant's personal knowledge or information and belief and that any false statements are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;

 10) if applicable, any request for an evidentiary hearing, including:

 a) a signed certification by counsel as to each intended witness, stating the:

 i) witness's name;

 ii) witness's address;

 iii) witness's date of birth; and

 iv) the substance of the witness's testimony; and

 b) any documents material to the witness's testimony, attached to the motion; and

 11) if applicable, any request for discovery.

 D. Answer.

 1) The Commonwealth may answer the motion. If the Commonwealth chooses to respond to the motion, such response shall:

 a) be submitted within ten days of receipt of the motion; and

 b) include a verification that the facts set forth in the answer are true and correct to the best of the attorney's personal knowledge or information and belief and that any false statements are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;

 2) The court may order the Commonwealth to file an answer within a timeframe established by the court.

Comment

 Relief under this rule is to be filed with the clerk of courts in the court in which the alleged error occurred. Rule 120 defines ''court'' as the Court of Common Pleas. See Rule 120. Because the court has continual supervision over a juvenile until court supervision is terminated pursuant to Rules 631 or 632, the juvenile court is the appropriate forum for such relief.

 This process allows the juvenile court to accept late motions when there is a sufficient basis for the delay. See paragraph (C)(6) for requirement of the grounds for the motion. Because the court is providing relief nunc pro tunc, the requirements of 42 Pa.C.S. § 5505 do not apply. See City of Philadelphia Police Dept. v. Civil Service Comm'n of City of Philadelphia, 702 A.2d 878 (Pa. Commw. Ct. 1997) (absent specific rule, only technical errors may be corrected after 30-day period). See also Justice v. Justice, 612 A.2d 1354, 417 Pa.Super. 581 (1992) (after a 30-day period the order can be opened or vacated if there is fraud or some other circumstance so grave or compelling as to constitute extraordinary cause which justifies intervention by the court); Com., Dept. of Transp., Bureau of Driver Licensing v. Duncan, 601 A.2d 456, 144 Pa.Commw. 261 (1991) (after a 30-day period order can be opened or vacated upon extraordinary cause).

 Pursuant to paragraph (A), the motion is to be filed as soon as possible but no later than sixty days of the date the error was made known or discovered. It is best practice to file the motion within thirty days. The juvenile is to allege facts to support the delay for the relief pursuant to paragraph (C)(7). Pursuant to paragraph (B), counsel is to remain in the case until court supervision of the juvenile is terminated, including any proceedings upon appeal. See Rule 150(B).

 If ineffectiveness of counsel is alleged, counsel is to file a motion to withdraw pursuant to Rule 150(C) and the judge is to assign new counsel.

 Second or subsequent motions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 633 A.2d 1098, 534 Pa. 483 (1993) (citing Commonwealth v. Lawson, 549 A.2d 107, 519 Pa. 504 (1988)). This standard is met if the juvenile can demonstrate either: 1) the proceedings resulting in the juvenile's disposition were so unfair that a miscarriage of justice occurred in which no civilized society can tolerate; or 2) the juvenile is innocent of the delinquent acts petitioned. See Szuchon, supra.

Rule 625. Hearing and Findings on Motion for Nunc Pro Tunc Relief.

 A. Hearing.

 1) The judge may grant an evidentiary hearing to resolve material questions of fact.

 2) The hearing shall be conducted as soon as possible but no later than thirty days of the filing of the motion for nunc pro tunc relief unless, upon good cause shown, the judge determines more time is necessary for investigation and preparation.

 B. Grant with No Hearing. If sufficient facts exist in the record to warrant relief, the judge may grant the motion without a hearing. If the judge grants the motion, it shall be granted within thirty days unless an extension is granted.

 C. Dismiss with No Hearing.

 1) The judge shall give notice to the parties of the intention to dismiss the motion, stating the reasons for the dismissal in the notice upon conclusion that:

 a) there are no genuine issues concerning any material fact;

 b) the juvenile is not entitled to relief; or

 c) no purpose would be served by any further proceedings.

 2) The juvenile may respond to the proposed dismissal within twenty days of the date of the notice.

 3) The judge shall order the motion dismissed, grant leave to file an amended motion, or direct that the proceedings continue.

 4) The judge may dispose of only part of a motion without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering a hearing on other issues.

 D. Findings. The judge shall:

 1) state its findings and conclusions of law for all material issues raised:

 a) on the record when there is a hearing; or

 b) in the order when there is no hearing; and

 2) issue an order denying relief or granting a specific form of relief, and issue any supplementary orders or modification of dispositional orders appropriate to the proper disposition of the case.

 E. Dismissed by Operation of Law. If the judge fails to decide the motion within thirty days, or to grant an extension:

 1) the motion shall be deemed denied by operation of law and not subject to reconsideration; and

 2) the clerk of courts shall forthwith:

 a) enter an order on behalf of the court; and

 b) as provided pursuant to Rule 167, shall serve a copy of the order on each attorney and the juvenile, if the juvenile has waived counsel, that the motion is deemed denied.

 F. Appellate Rights.

 1) If the judge disposes of the case in open court at the conclusion of the hearing, the judge shall advise the juvenile on the record of the right to appeal from the final order disposing of the motion and of the time within which the appeal must be taken.

 2) If the case is taken under advisement or the judge denies the motion without a hearing, the judge shall notify the juvenile of the right to appeal.

Comment

 The judge is permitted, pursuant to paragraph (C), to summarily dismiss a motion in certain cases. To determine whether a summary dismissal is appropriate, the judge should review the motion, the answer, if any, and all other relevant information included in the record. If, after this review, the judge determines that the motion is patently frivolous and without support in the record, or that the facts alleged would not, if proven, entitle the juvenile to relief, or that there are no genuine issues of fact, the judge may dismiss the motion.

 A summary dismissal would also be authorized under this rule if the judge determines that a previous motion involving the same issue or issues was filed and determined adversely to the juvenile. See Comment to Rule 622 for second or subsequent motions.

 Additionally, relief may be granted without a hearing pursuant to paragraph (D)(2) after an answer has been filed.

Rule 628. Order of Court on Motion for Nunc Pro Tunc Relief.

 A. Order by court. The court order shall:

 1) state the judge's findings and conclusions of law;

 2) provide for appropriate relief and supplementary orders or modifications of the dispositional order as to:

 a) the detention of the juvenile;

 b) whether a new adjudicatory hearing is granted;

 c) correction of the adjudication of delinquency;

 d) correction of the disposition;

 e) termination of court supervision; and/or

 f) other matters that are appropriate.

 3) include a statement explaining the right to appeal from the final order disposing of the motion, and of the time within which the appeal must be taken.

 B. Order by clerk of courts for deemed denied by operation of law. When the clerk of courts has entered an order providing that the motion for nunc pro tunc relief is deemed denied by operation of law pursuant to Rule 625(E), the court order shall:

 1) state that the motion is denied by operation of law pursuant to Rule 625(A)(2); and

 2) include a statement explaining the right to appeal from the final order disposing of the motion, and of the time within which the appeal must be taken.

PART D. CESSATION OF COURT JURISDICTION OR SUPERVISION

Rule

630.Loss of Court Jurisdiction.
631.Termination of Court Supervision.
632.Early Termination of Court Supervision by Motion.

Explanatory Report

Background

 Testimony from hearings conducted by the Interbranch Commission on Juvenile Justice (ICJJ) revealed a number of constitutional and procedural rule violations occurred, more than just the violation of the right to counsel. One such violation involved the notice of the right to file a post-dispositional motion and appeal.

 Pa.R.J.C.P. 512(C) requires that the court determine on the record that the juvenile has been advised of the following: 1) the right to file a post-dispositional motion; 2) the right to file an appeal; 3) the time limits for a post-dispositional motion and appeal; 4) the right to counsel to prepare the motion and appeal; 5) the time limits within which the post-dispositional motion shall be decided; and 6) that issues raised before and during adjudication shall be deemed preserved for appeal whether or not the juvenile elects to file a post-dispositional motion.

 The ICJJ recommended that a form be developed to give to juveniles that would refer them to the statewide appellate office. Currently, there is no statewide appellate office that handles all juvenile appeals. Whether an office is ultimately established by the General Assembly as recommended by the ICJJ for this purpose is outside the scope of this Committee and its recommendations.

 As stated supra, the court should determine if the juvenile has been advised of his or her rights regardless of whether there is a statewide appellate office. The Supreme Court of Pennsylvania requires under Pa.R.J.C.P. 150(B) that counsel shall represent the juvenile until final judgment, including any proceeding upon direct appeal. Therefore, counsel for the juvenile is required to file any post-dispositional motions and to perfect an appeal for the juvenile. The attorney for the juvenile should also explain the post-dispositional and appellate process.

 The ICJJ also recommended that consideration be given to creating a mechanism which would afford a juvenile an avenue to petition for relief from a wrongful adjudication even though the period for direct appeal has expired. In the adult system, the use of the Post Conviction Relief Act (PCRA) permits those who have been convicted of a crime and have exhausted their direct appeal rights, to bring their case to the attention of the court under certain limited circumstances.

 These proposed rule additions address nunc pro tunc relief for juveniles. Currently, issues similar to PCRA claims, such as ineffective assistance of counsel, are raised on direct appeal for juveniles. However, claims that are raised must be filed through the normal appellate process which can take several months only to be remanded to the juvenile court for an evidentiary hearing. Additionally, if the appeal is not filed within thirty days as required, the case will be dismissed as untimely.

 These rule additions specifically address allowance of untimely appeals when good cause has been shown. The additions also provide for an expedited review by the juvenile court to avoid the delays inherent in the direct appeal process. For example, a juvenile claims that counsel was ineffective. The juvenile court could order an evidentiary hearing and ultimately find the counsel was ineffective. A new adjudicatory hearing would be ordered and the case would progress through the normal juvenile court process, eliminating the need for an appeal to Superior Court.

 In other instances, the juvenile court could allow an appeal to the Superior Court even though the appeal is untimely. For example, the juvenile may claim he or she advised counsel to file an appeal and counsel did not file an appeal. If the juvenile court finds that the appeal should have been perfected, the appeal would be allowed even though the time for filing an appeal has passed.

Rule Discussion

Rule 520 to 620—Post-Dispositional Motions

 The Committee is recommending that the Rule on Post-Dispositional Motions be placed in Chapter Six under new Part C, Motions. This new Part will include post-dispositional motions and motions for nunc pro tunc relief.

Rule 622—Motion for Nunc Pro Tunc Relief

 This new proposed rule sets forth the requirements for filing a motion for nunc pro tunc relief. The allegations must contain that: 1) there is a need for correction of an error to accurately reflect the court's findings; or 2) the juvenile has been adjudicated delinquent for a delinquent act and is currently under the court's supervision; there is a legitimate basis for the appeal; and there are sufficient facts upon which to conclude the delay for the motion was justified and should be overlooked in the interest of justice. See paragraph (C)(6)(a) and (b).

Rule 625—Hearing and Findings on Motion for Nunc Pro Tunc Relief

 This new proposed rule allows the judge to grant an evidentiary hearing if it is clear there is no evidence or insufficient evidence on the record upon which the Superior Court could base its decision. This is important because if an appeal was taken and there was no evidence in the record for the Superior Court to review, the case would be remanded for an evidentiary hearing. This is common for ineffective assistance of counsel claims because there would be no evidence in the record. Also, there may be new evidence that was just made available and it did not appear in the record.

 This bypass procedure streamlines the process and will prevent an overload of cases to the Superior Court. It also saves time and money to have the juvenile court judge or another Common Pleas judge hear cases that would otherwise be remanded.

 The judge may also grant or deny a motion without a hearing. Before the judge denies the motion under paragraph (C), the judge is to give notice of the intention to dismiss the motion and state the reasons for the dismissal in the notice. The juvenile may respond to the notice within twenty days, whereupon the judge will make his or her final ruling.

Rule 628—Order of Court on Motion for Nunc Pro Tunc Relief

 This new proposed rule governs the contents of the court order. The order must include the judge's findings and conclusions of law; any appropriate relief and supplementary orders or modifications of the dispositional order; and advise the parties of the right to appeal and time within which the appeal must be taken.

[Pa.B. Doc. No. 11-1091. Filed for public inspection July 1, 2011, 9:00 a.m.]


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