THE COURTS
Title 237—JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CHS. 5 AND 6 ]
Order Renumbering Rule 520 to 620 and Adopting New Rules 622, 625, and 628 of the Rules of Juvenile Court Procedure; No. 560 Supreme Court Rules Doc.
[42 Pa.B. 1214]
[Saturday, March 10, 2012]
Order Per Curiam
And Now, this 23rd day of February, 2012, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been published for public comment before adoption at 41 Pa.B. 3528 (July 2, 2011), in the Atlantic Reporter (Third Series Advance Sheets, Vol. 19, No. 3, July 1, 2011), and on the Supreme Court's web-page, and an Explanatory Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the renumbering of Rule 520 to 620 and adoption of new Rules 622, 625, and 628 of the Rules of Juvenile Court Procedure are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2012.
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart A. DELINQUENCY MATTERS
CHAPTER 5. DISPOSITIONAL HEARING
PART C. [POST-DISPOSITIONAL MOTIONS] (Reserved) Rule [520] 620. Post-Dispositional Motions.
* * * * * Official Note: Rule 520 adopted May 17, 2007, effective August 20, 2007[; amended]. Amended July 28, 2009, effective immediately. Amended January 11, 2010, effective March 1, 2010. Renumbered Rule 620 on February 23, 2012, effective April 1, 2012.
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).
Final Report explaining the renumbering of Rule 520 to 620 published with the Court's Order at 42 Pa.B. 1214 (March 10, 2012).
CHAPTER 6. POST-DISPOSITIONAL PROCEDURES
PART C. MOTIONS AND NUNC PRO TUNC RELIEF Rule
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 622. Motion for Nunc Pro Tunc Relief.
A. Timing. 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.
B. Counsel. 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.
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 act(s) 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 was justified and should be overlooked in the interest of justice;
7) the facts supporting the grounds for relief and sufficient facts to support any delay in filing 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 A motion for 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 a motion.
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 Dep't 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, 417 Pa. Super. 581, 612 A.2d 1354 (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., Dep't of Transp., Bureau of Driver Licensing v. Duncan, 144 Pa. Commw. 261, 601 A.2d 456 (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 after the date the error was made known or discovered. It is best practice to file the motion within thirty days.
Pursuant to paragraph (B), counsel is to remain in the case unless ineffective assistance of counsel is alleged. See Rule 150(B). If ineffective assistance of counsel is alleged, counsel is to withdraw and the court is to appoint new counsel. See Rule 150(C).
Pursuant to paragraphs (C)(6) & (7), the juvenile is to aver the basis for relief and allege facts to support the grounds for the relief upon which the court may conclude the delay was justified and should be overlooked in the interest of justice.
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, 534 Pa. 483, 633 A.2d 1098 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (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 which no civilized society can tolerate; or 2) the juvenile is innocent of the delinquent acts petitioned. See Szuchon, supra.
Official Note: Rule 622 adopted February 23, 2012, effective April 1, 2012.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 622 published with the Court's Order at 42 Pa.B. 1214 (March 10, 2012).
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 after 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 of the filing of the motion 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 thereafter 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 the 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 or grant an extension within thirty days:
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 pursuant to Rule 628.
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.
Official Note: Rule 625 adopted February 23, 2012, effective April 1, 2012.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 625 published with the Court's Order at 42 Pa.B. 1214 (March 10, 2012).
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(E); 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.
Official Note: Rule 628 adopted February 23, 2012, effective April 1, 2012.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 628 published with the Court's Order at 42 Pa.B. 1214 (March 10, 2012).
EXPLANATORY REPORT
February 2012 The Supreme Court of Pennsylvania has adopted the renumbering of Rule 520 to 620 and new Rules 622, 625, and 628 with this Recommendation. The changes are effective April 1, 2012.
Rule 520 to 620—Post-Dispositional Motions
Rule 520 on Post-Dispositional Motions has been placed in Chapter Six under new Part C, Motions as Rule 620. This new Part C will include post-dispositional motions and motions for nunc pro tunc relief.
Rule 622—Motion for Nunc Pro Tunc Relief
This new rule sets forth the requirements for filing a motion for nunc pro tunc relief.
Paragraph (A) requires a motion for nunc pro tunc relief to be filed within sixty days of the date the error was made known. In many instances, the error will be discovered upon consultation with an attorney. It is sixty days from that discovery that the motion must be filed. It is best practice to file the motion immediately and within thirty days, however, in some instances, thirty days is not practicable.
Paragraph (B) requires counsel to withdraw pursuant to Rule 150(C) when ineffective assistance of counsel is alleged. The court must allow counsel to withdraw and appoint new counsel for the juvenile.
Paragraph (C) lists the requirements of the motion. For the motion to move forward, the allegations must aver 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 paragraphs (C)(6)(a) and (b).
In addition, the specific relief requested must be stated. See paragraph (C)(5).
Paragraph (D) provides that the Commonwealth may answer the motion. The answer is discretionary unless the court orders the Commonwealth to answer. If the court orders an answer from the Commonwealth, the court must establish a deadline for the answer. See paragraphs (D)(1) & (2).
Rule 625—Hearing and Findings on Motion for Nunc Pro Tunc Relief
This new 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 to the juvenile court for an evidentiary hearing. Remand to the lower court is common for ineffective assistance of counsel claims because there is no evidence in the record. Also, in some cases, there may be new evidence that was just made available and it did not appear in the record.
This bypass procedure of allowing evidentiary hearings in the juvenile court streamlines the process and will prevent an overload of cases to the Superior Court. It also saves judicial resources to have the juvenile court judge or another Common Pleas judge hear cases that would otherwise be remanded anyway.
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.
Paragraph (D) requires the judge to state the findings and conclusions of law on the record when there is a hearing or in the court order when there is no hearing. The court is also required to state the specific form of relief granted or denied and may issue supplementary orders or modify the dispositional order when appropriate. See paragraph (D)(2).
If the judge fails to decide the motion within thirty days or grant an extension, the motion must be deemed denied by operation of law and the clerk of courts must enter an order on behalf of the court denying the motion and provide notice to the attorneys and the juvenile. See paragraph (E).
The juvenile may appeal the final order made by the judge. The judge shall notify the juvenile of this right. See paragraph (F).
Rule 628—Order of Court on Motion for Nunc Pro Tunc Relief
This new 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. 12-390. Filed for public inspection March 9, 2012, 9:00 a.m.]
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