THE COURTS

Title 237—JUVENILE RULES

PART I. RULES

[ 237 PA. CODE CH. 1 ]

Proposed Revision of Comment to Pa.R.J.C.P. 152

[46 Pa.B. 3939]
[Saturday, July 23, 2016]

 The Juvenile Court Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the revision of the Comment to Pa.R.J.C.P. 152 concerning the waiver of counsel by a juvenile for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

Daniel A. Durst, Chief Counsel
Juvenile Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9541
juvenilerules@pacourts.us

 All communications in reference to the proposal should be received by September 1, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Juvenile Court
Procedural Rules Committee

KERITH STRANO TAYLOR, Esq., 
Chair

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 only waive the right to counsel 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

 Because of the ramifications of a juvenile record, it is important that every safeguard [is] be 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; and 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 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. Amended   , 2016, effective   , 2016.

 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).

 Final Report explaining the amendments to Rule 152 published with the Court's Order at  Pa.B.   (   , 2016).

REPORT
Proposed Revision of Comment to Pa.R.J.C.P. 152

 The Juvenile Court Procedural Rules Committee proposes to revise the Comment to Rule 152 to remove a statement suggesting a juvenile has a right to proceed pro se.

 Rule 151 was substantially amended on May 16, 2011 to establish a presumption of indigency for juveniles. The purpose of this amendment was to assign counsel in every case in which the juvenile appears without counsel. On January 11, 2012, Rule 152 was amended to, inter alia, prohibit the waiver of counsel for certain proceedings. See Pa.R.J.C.P. 152(A)(3). Additionally, the Comment was revised to add:

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.

 Thereafter, the Juvenile Act was amended by Section 2 of the Act of April 9, 2012, P.L. 223, to prohibit the waiver counsel for the same proceedings identified in Rule 152(A)(3). See 42 Pa.C.S. § 6337.1(b)(3). The Act does not provide for an exception to the prohibition against waiver.

 In light of this subsequent legislation, the Committee has reconsidered the Comment. Until such time the Court or the Legislature holds that a juvenile has a right to proceed pro se, the Committee believes that suggesting so in a Comment is beyond procedural and may lend to confusion. Therefore, the Committee proposes to recommend to the Supreme Court that the above-comment be deleted from the Comment.

 The Committee invites all comments, concerns, and suggestions regarding this rulemaking proposal.

[Pa.B. Doc. No. 16-1247. Filed for public inspection July 22, 2016, 9:00 a.m.]

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