THE COURTS
Title 237—JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CH. 1 ]
Order Amending Rule 152 of the Rules of Juvenile Court Procedure; No. 554 Supreme Court Rules Doc.
[42 Pa.B. 547]
[Saturday, January 28, 2012]
Order Per Curiam
And Now, this 11th day of January, 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. 1013 (February 26, 2011), in the Atlantic Reporter (Third Series Advance Sheets, Vol. 11, No. 3, March 4, 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 amendments to Rule 152 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 March 1, 2012.
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart A. DELINQUENCY MATTERS
CHAPTER 1. GENERAL PROVISIONS
PART B(2). COUNSEL Rule 152. Waiver of Counsel.
A. Waiver requirements. A juvenile who has attained the age of fourteen may [not] waive the right to counsel [unless] if:
1) the waiver is knowingly, intelligently, and voluntarily made; and
2) the court conducts a colloquy with the juvenile on the record[.]; and
3) the proceeding for which waiver is sought is not one of the following:
a) detention hearing pursuant to Rule 242;
b) transfer hearing pursuant to Rule 394;
c) adjudicatory hearing pursuant to Rule 406, including the acceptance of an admission pursuant to Rule 407;
d) dispositional hearing pursuant to Rule 512; or
e) a hearing to modify or revoke probation pursuant to Rule 612.
B. Stand-by counsel. The court may assign stand-by counsel if the juvenile waives counsel at any proceeding or stage of a proceeding.
C. Notice and revocation of waiver. If a juvenile waives counsel for any proceeding, the waiver only applies to that proceeding, and the juvenile may revoke the waiver of counsel at any time. At any subsequent proceeding, the juvenile shall be informed of the right to counsel.
Comment [It is recommended that, at a minimum, the court ask questions to elicit the following information in determining a knowing, intelligent, and voluntary waiver of counsel:
1) Whether the juvenile understands the right to be represented by counsel;
2) Whether the juvenile understands the nature of the allegations and the elements of each of those allegations;
3) Whether the juvenile is aware of the dispositions, community service, or fines that may be imposed by the court;
4) Whether the juvenile understands that if he or she waives the right to counsel, he or she will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
5) Whether the juvenile understands that there are possible defenses to these allegations that counsel might be aware of, and if these defenses are not raised at the adjudicatory hearing, they may be lost permanently;
6) Whether the juvenile understands that, in addition to defenses, the juvenile has many rights that, if not timely asserted, may be lost permanently; and if errors occur and are not timely objected to, or otherwise timely raised by the juvenile, these errors may be lost permanently;
7) Whether the juvenile knows the whereabouts of absent guardians and if they understand they should be present; and
8) Whether the juvenile has had the opportunity to consult with his or her guardian about this decision.]
Because of the ramifications of a juvenile record, it is important that every safeguard is taken to ensure that all constitutional and procedural guarantees and rights are preserved. Juveniles should not feel pressured to waive counsel or be the subject of any proactive pursuit for obtaining a waiver.
In determining whether the waiver of counsel is knowingly, intelligently, and voluntarily made, the court, on the record, is to ask the juvenile questions to elicit: 1) the reasons why the juvenile wants to waive counsel; 2) information regarding the juvenile's: a) age; b) maturity; c) education; d) mental health issues, if any; and e) any current alcohol or drug issues that may impair the juvenile's decision-making skills; 3) the juvenile's understanding of the: a) right to an attorney, including the provisions of Rule 151; b) juvenile's role when proceeding pro se; c) allegations in the petition against the juvenile; d) possible consequences if the juvenile is found delinquent; 4) whether the juvenile consulted with the juvenile's guardian; and 5) whether the juvenile consulted with an attorney.
If it is determined that the juvenile has not knowingly, intelligently, and voluntarily waived counsel, the court immediately is to appoint counsel for the juvenile. If it is determined that the juvenile has made a knowing, intelligent and voluntary waiver, the court may appoint stand-by counsel for all proceedings.
This rule is not meant to preclude the guardian's presence at any hearing. Indeed, the presence and active participation of a guardian should be welcomed. During the colloquy which is the subject of this rule, the court should feel free to elicit information from the guardian. As provided in Rule 131 and the Juvenile Act, 42 Pa.C.S. §§ 6310, 6335(b), and 6336.1, the court can order the guardian's presence if the court determines that it is in the best [interests] interest of the juvenile. When conducting the colloquy, the court should also keep in mind the age, maturity, intelligence, and mental condition of the juvenile, as well as[,] the experience of the juvenile, the juvenile's ability to comprehend, the guardian's presence and consent, and the juvenile's prior record.
This rule requires the juvenile to waive the right to counsel. A guardian may not waive the juvenile's right to counsel. To implement this rule, Rule 800 suspends 42 Pa.C.S. § 6337 only to the extent that the right to waiver of counsel belongs to the juvenile and the guardian may not waive the right for the juvenile.
Additionally, Rule 150(B) provides that once an appearance is entered or the court assigns counsel, counsel is to represent the juvenile until final judgment, including any proceeding upon direct appeal and dispositional review, unless permitted to withdraw. See Pa.R.J.C.P. 150(B).
Notwithstanding the provisions of paragraph (A)(3), a juvenile fourteen years of age or older may make or file a motion pursuant to Rule 344(E) for alternative relief, for example, when the juvenile subscribes to a protected formal belief system which prohibits attorney representation.
Pursuant to paragraph (C), if waiver of counsel is revoked, the court is to appoint counsel before proceeding.
Official Note: Rule 152 adopted April 1, 2005, effective October 1, 2005. Amended January 11, 2012, effective March 1, 2012.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 152 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).
Final Report explaining the amendments to Rule 152 published with the Court's Order at 42 Pa.B. 547 (January 28, 2012).
EXPLANATORY REPORT
January 2012 The Supreme Court of Pennsylvania has adopted the changes to Rule 152 with this Recommendation. The changes are effective March 1, 2012.
Background
The issue of waiver of counsel has been a topic of discussion and debate since the inception of the Juvenile Court Procedural Rules Project in 1999 and the creation of the Juvenile Court Procedural Rules Committee in 2001.
Despite the recurring debate on various aspects of waiver, research indicates that in most jurisdictions, juveniles are very rarely waiving counsel. According to 2009 statistics from the Juvenile Court Judges' Commission, over 99.2% of juveniles have an attorney for court proceedings. In 2009, one hundred eighty five (<.08%) juveniles waived the right to have an attorney. In the majority of waiver cases, the juvenile was discharged from court supervision, placed on informal adjustment, or the case was dismissed.
Even though waiver of counsel is rarely occurring across this Commonwealth, the unfortunate circumstances that came to light in Luzerne County brought this subject to the forefront more recently. In August of 2009, the Interbranch Commission on Juvenile Justice (ICJJ) was convened to address how the Luzerne County juvenile system failed, to restore public confidence, and to prevent similar events from occurring again. One of the primary issues concerned unrepresented juveniles sent to placement facilities for minor infractions.
One method of protecting juveniles is ensuring that all juveniles have an attorney. In May of 2011, the Supreme Court adopted a rule recommendation presuming all juveniles to be indigent. Effective July 1, 2011, all juveniles are appointed counsel unless they decide to retain a private attorney.
Once counsel is appointed, the question is whether the juvenile may waive his or her right to an attorney. The debate on waiver of counsel has centered on the derivation of the juvenile's right to counsel. The analysis for waiving a right is dependent upon this origin.
It is clear that an adult defendant has a Sixth Amendment right to counsel. The U.S. Supreme Court has also determined that adult defendants have a right to self-representation. See Faretta v. California, 422 U.S. 806 (1975). This right was determined to be derived from the defendant's Sixth Amendment right to counsel.
In juvenile delinquency cases, the U.S. Supreme Court determined that the juvenile has a right to counsel but it is derived from the Fourteenth Amendment's due process clause. In re Gault, 387 U.S. 1 (1967). Pennsylvania then recognized the juvenile's right to counsel by providing in its Juvenile Act that a party is entitled to representation by legal counsel at all stages of any proceedings. See 42 Pa.C.S. § 6337.
In re Winship, the U.S. Supreme Court expanded its ruling in Gault by providing the juvenile with additional due process rights to confront and cross-examine witnesses, and to the same standard of proof as adult defendants which is a finding of guilty beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970).
However, there is no precedent for a juvenile's right to self-representation. In McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the U.S. Supreme Court determined that a juvenile does not have the right to a trial by jury. It found that ''a juvenile proceeding is not a criminal prosecution within meaning and reach of [the] Sixth Amendment guaranteeing [a] right to an impartial jury in all criminal prosecutions.'' McKeiver, supra.
In McKeiver, all the litigants agreed that the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness. As that standard was applied in those two cases, the U.S. Supreme Court placed an emphasis on fact-finding procedures. The requirements of notice, counsel, confrontation, cross-examination, and standard of proof naturally flowed from this emphasis. ''But one cannot say that in our legal system, the jury is a necessary component of accurate fact-finding.'' McKeiver, supra.
Under this same analysis, it can be argued that the right to self-representation is also not a necessary component of accurate fact-finding. It actually tends to lead us to the opposite conclusion as juveniles are not effective advocates with specialized training who can accurately set forth the facts in a case or object to evidence that legally should be excluded.
The next question of whether the juvenile has a right to self-representation under the ''law of the land'' due process clause of the Pennsylvania Constitution is also addressed by this same analysis. See Pa. Const., Art. 1, § 9.
In re Terry, 265 A.2d 350 (Pa. 1970), the Supreme Court of Pennsylvania held that the juvenile does not have a right to a trial by jury. This case was consolidated with another case and affirmed by the U.S. Supreme Court in McKeiver, supra. The Supreme Court of Pennsylvania stated that it was ''confident that a properly structured and fairly administered juvenile court system can serve our present societal needs without infringing upon individual freedoms. If hearings are conducted in accordance with the procedural safeguards, juveniles are not constitutionally compelled to be granted a trial by jury.'' Terry, supra.
The Committee believes that the constitutional analysis, as stated supra, is persuasive and supports the proposition that juveniles do not have an absolute right to self-representation. Therefore, the Committee believes that a juvenile's right to waive counsel can be limited while protecting the juvenile's freedoms and fundamental fairness.
There has never been any debate that when a juvenile waives counsel, the waiver must be knowingly, intelligently, and voluntarily made. When looking at this standard for waiver, it is clear to the Committee that any person under the age of fourteen does not have the capacity to understand a complex legal system in which attorneys must be educated and receive additional appropriate training. Therefore, the Committee recommended no juvenile under the age of fourteen can waive counsel.
It can be argued that a minority of juveniles over the age of fourteen may be able to make a knowing, intelligent, and voluntary waiver of counsel. The Court has recognized the rights of juveniles over the age of fourteen to make decisions concerning their mental health treatment, including taking medication. Additionally, the legislature has recognized that juveniles over the age of fourteen can be transferred to and from criminal proceedings for certain offenses. In the adult system, juveniles may be able to waive counsel if their waiver is knowingly, intelligently, and voluntarily made.
Therefore, the Committee balanced the rights of these juveniles with the need to protect them when serious consequences arise from their actions. Protecting juveniles outweighs any right to self-representation in any proceeding that has lifetime implications. Because of the consequences attached to certain proceedings in juvenile court, the Committee recommended a juvenile cannot waive counsel at a detention, adjudicatory, transfer, disposition, or probation revocation hearing.
A juvenile may be sent to an out-of-home placement for any delinquent act. There are also several collat- eral consequences related to a delinquency adjudication, which include challenges to obtaining employment, licenses, public housing, enrolling in the military; or being expelled from school. See http://www.pacourts.us/T/BoardsCommittees/JuvenileCourtProcedural/ for the Collateral Consequences Checklist.
Because of the lifetime implications that flow from a delinquency adjudication, juveniles must be protected at the hearing that determines their guilt or innocence. Individual liberties and freedom are at stake at the detention, transfer, dispositional, and probation revocation hearings; therefore attorney representation is needed to protect the juvenile's rights.
Additionally, once an attorney has been appointed or retained, Rule 150(B) requires the attorney to represent the juvenile until final judgment, including any proceeding upon direct appeal and dispositional review, unless permitted to withdraw. If counsel withdraws, new counsel must be appointed. Therefore, it is expected that a juvenile will always have an attorney at those proceedings.
Rule discussion
As previously stated, the modifications to Rule 152 are consistent with the Recommendations of the ICJJ which emphasize the importance of protecting juveniles who face serious consequences. Interbranch Commission on Juvenile Justice Report, May 2010, pp. 50—51.
Paragraph (A) allows a juvenile who is at least fourteen years of age to waive counsel if: 1) waiver is knowingly, intelligently, and voluntarily made; 2) the court conducts the colloquy with the juvenile on the record; and 3) the hearing is not one of the specified proceedings.
Because the consequences of a detention, transfer, adjudicatory, dispositional, and probation revocation hearings are too harsh for a juvenile to navigate the system alone, a juvenile may not waive counsel at those proceedings. As implied in the constitutional analysis supra, the Committee believes that the juvenile's right to self-representation fails under a balancing test of the Fourteenth Amendment's due process clause.
No changes were made to paragraph (B) & (C). Paragraph (B) allows the court to appoint stand-by if the juvenile waives counsel at any proceeding not enumerated in paragraph (A)(3). Paragraph (C) emphasizes waiver of counsel applies only to one proceeding and the juvenile must be informed of the right to counsel at each subsequent proceeding.
The colloquy requirements were changed in the Comment to address the general minimal requirements for information that should be obtained by the court. It is important to understand why the juvenile wishes to waive counsel. If there are any misperceptions by the juvenile, the court can dispel those misperceptions.
Another addition to the Comment includes that if a juvenile has a constitutionally protected formal belief system that prohibits attorney representation, the juvenile may move or file a motion under Rule 344(E) requesting the provisions of this rule do not apply to him or her. For example, an individual whose religious belief does not permit attorney representation may claim that his or her First Amendment right would outweigh any Fourteenth Amendment constitutional balancing test.
[Pa.B. Doc. No. 12-136. Filed for public inspection January 27, 2012, 9:00 a.m.]
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