J-A19030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: N.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: N.K., MINOR :
:
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:
: No. 1904 EDA 2022
Appeal from the Dispositional Order Entered July 11, 2022
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No: CP-51-JV-0000818-2020
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 12, 2023
Appellant, N.K., a minor, appeals from the July 11, 2022 order entered
in the Juvenile Division of the Philadelphia County Court of Common Pleas,
denying his motion for relief nunc pro tunc. Upon review, we reverse the July
11, 2022 order and remand with instructions.
The underlying facts leading to Appellant’s arrest are not the focus of
this appeal. Rather, our focus is on the events that occurred following
Appellant’s May 2020 arrest when he was 17 years old and was charged in
relation to multiple incidents that occurred between 2014 and 2018.
Attorney Thomas Kenney (“Private Counsel”) entered an appearance on
Appellant’s behalf in May 2020 and continued his representation into 2022,
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* Retired Senior Judge assigned to the Superior Court.
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during which time a number of adjudicatory hearings were conducted and
Appellant was largely on GPS monitoring and in-home detention.
During a July 27, 2021 adjudicatory hearing before the Honorable Robert
J. Rebstock, Appellant tendered an admission to a charge of Sexual Assault,
18 Pa.C.S.A. § 3214.1, a second-degree felony. The remaining charges
against him were withdrawn/nolle prossed.1 Following the hearing, Appellant
was placed on deferred adjudication. He remained subject to, inter alia, in-
home detention; was placed on interim probation; and was ordered to
complete treatment at the Joseph J. Peters Institute (“JJPI”) and to attend
school, while being subject to a stay-away order. Appellant again appeared
before Judge Rebstock in September and December of 2021 and remained
subject to the same conditions.
As the juvenile court (the Honorable Jospeh Fernandes) explained:
On February 1, 2022, [Appellant] was to appear in front [of] the
Honorable Joseph Fernandes but did not appear; however, his
Private Counsel appeared telephonically. The Probation Officer
was ordered to serve the outcome order. [Appellant] remained on
deferred adjudication, interim probation, and [Philadelphia Youth
Advocacy Program (“PYAP”)] in-home detention. He was also
ordered to complete treatment at JJPI and was also referred to
[Assessment and Treatment Alternatives (“ATA”)] for sex offender
treatment. [Appellant] was ordered to appear at the next date.
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1 The additional charges included Rape—Forcible Compulsion (F1),
18 Pa.C.S.A. § 3121(A)(1); Involuntary Deviate Sexual Intercourse—Forcible
Compulsion (F1), 18 Pa.C.S.A. § 3123(A)(1); Indecent Assault (complainant
less than 13 years of age) (F3), 18 Pa.C.S.A. § 3126(A)(7); and Recklessly
Endangering Another Person (M2), 18 Pa.C.S.A. § 2705.
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On February 9, 2022, [Appellant] appeared in front of the
Honorable Joseph Fernandes and his deferred adjudication was
revoked as a result of non-compliance with his conditions.
[Appellant] had been previously arrested as an adult in January
2022. Private Counsel was present. [Appellant] was adjudicated
delinquent on the charge of Sexual Assault. He was placed on
probation with the Juvenile Enforcement Unit (“JET”), due to being
considered high risk, [and was discharged from in-home
detention, placed on GPS monitoring with permission to attend
school, and ordered to attend sex offender treatment and to follow
all probation directives regarding that treatment].
Opinion, 12/1/22, at 4-5. As Appellant recounts,
No statement was made on the record to inform [Appellant] of his
post-dispositional rights, either by the court or by counsel.
[Private Counsel] did not speak with [Appellant] about filing a
motion for reconsideration that day or at any subsequent point,
and no motion was filed by [Private Counsel] on [Appellant’s]
behalf.
Appellant’s Brief at 12.
In its December 1, 2022 opinion, the juvenile court summarized the
additional proceedings conducted during 2022. As reflected in that summary,
Private Counsel did not attend any proceedings after the February 9, 2022
hearing during which Appellant was adjudicated. Nevertheless, Private
Counsel remained attorney of record as of a March 15 and April 22, 2022
review hearings, both of which were held before a judicial court hearing officer.
During the April 22, 2022 review hearing, the Public Defender was verbally
appointed. Although Private Counsel remained of record when another review
hearing was conducted on June 1, 2022, only the Public Defender was present
on Appellant’s behalf at that proceeding. At the conclusion of the June 1
hearing, Appellant was ordered to remain on probation and GPS with a curfew,
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area restrictions, and a stay-away order; to attend school; and to continue
TAP. Opinion, 12/1/22, at 5.
On the same day, which was fewer than sixty days after counsel’s
appointment, the Public Defender filed a Motion for Nunc Pro Tunc Relief in
accordance with Pa.R.J.C.P. 622,2 claiming ineffectiveness of Private Counsel
and seeking withdrawal of Appellant’s admission relating to Sexual Assault3
and reinstatement of Appellant’s post-dispositional rights.
A hearing was subsequently scheduled for June 28, 2022, before a
hearing officer rather than the juvenile court judge. Consequently, Appellant
did not believe it was scheduled in response to the nunc pro tunc motion.
Appellant’s Brief at 14.
Appellant’s nunc pro tunc motion was addressed at a dispositional
hearing before Judge Fernandes on July 11, 2022. As Appellant asserts:
Before hearing from [the Public Defender], and without holding an
evidentiary hearing, the juvenile court denied the motion [at the
July 11, 2022 hearing]. Counsel requested to be heard and
argued that [Appellant] should be granted the ability to pursue
post-dispositional relief. Specifically, new counsel averred that on
February 9th, [Private Counsel] stated in from of P.O. McGlinn and
the court staff that he would file a motion to reconsider the
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2 Rule 622 directs that a Motion for Nunc Pro Tunc Relief be filed “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).
3 We note that Pa.R.J.C.P. 407(A)(4) authorizes the withdrawal of an
admission prior to the court entering the dispositional order. However, after
entry of the dispositional order, an admission may be withdrawn only upon a
demonstration of manifest injustice.
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adjudication, but then ceased all contact with [Appellant] and
failed to appear at subsequent hearings, calling into question
counsel’s effectiveness. New counsel also argued the [Appellant]
was presumed innocent of his charges in adult court, calling into
question the basis for the adjudication of delinquency. Further,
new counsel explained that [Appellant] effectively had no counsel
during the ten-day period he had to assert post-dispositional
rights (or 30 days to appeal), and he therefore lost his opportunity
to do so. The juvenile court maintained its position and denied
the Motion.
Appellant’s Brief at 14-15 (citations to Notes of Testimony from 7/11/22
omitted).
This timely appeal followed. Both Appellant and the juvenile court
complied with Pa.R.A.P. 1925.
Appellant asks us to consider the following two issues:
1. Did the juvenile court abuse its discretion in denying a juvenile
the right to litigate, nunc pro tunc, whether his admission should
be withdrawn and a new hearing held, where all the requirements
for a movant seeking such relief were established and
substantively supported by sufficient averments of ineffective
assistance of prior counsel?
2. Should the juvenile court’s denial of nunc pro tunc relief be
reversed and the matter remanded for an evidentiary hearing on
Appellant’s Nunc Pro Tunc Motion where the court failed to abide
by the juvenile court’s procedural requirements under Pa.R.J.C.P.
625 and 628, to wit:
(a) the court did not follow the relevant procedures for
dismissing a juvenile’s motion for nunc pro tunc relief,
including failing to either give notice of its proposed
dismissal of the request for relief, or permit the presentation
of evidence in support of the request at a hearing; and
(b) the court did not state findings of fact and conclusions
of law either in court or in writing to support its dismissal of
the motion.
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Appellant’s Brief at 6.
We first note that
[a] juvenile judged to be delinquent has a right to appeal.
Interest of A.P., [617 A.2d 764 (Pa. Super. 1992)].
Furthermore, a juvenile has the right to effective assistance of
counsel on appeal. Id.; 42 Pa.C.S.A. § 6337. This right includes,
at a minimum, the right to have counsel properly preserve and
effectuate his appeal. Interest of A.P., 617 A.2d 764.
In re B.S., 831 A.2d 151, 155 (Pa. Super. 2003). We reiterate that
[c]ounsel is presumed effective and the burden of proving
otherwise lies with the appellant. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). In order to
successfully demonstrate ineffective assistance of counsel, the
petitioner must establish: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability the outcome of the
proceedings would have been different. Commonwealth v.
Miller, 560 Pa. 500, 746 A.2d 592 (2000).
In re R.S., 847 A.2d 685, 687-88 (Pa. Super. 2004).
Appellant has framed his first issue to encompass (1) withdrawal of his
admission on the Sexual Assault charge and (2) the grant of a new hearing
regarding the July 11, 2022 dispositional order. However, we shall limit our
analysis to the second aspect of his stated issue, i.e., whether the juvenile
court abused its discretion when it denied Appellant’s Motion for Nunc Pro Tunc
relief in light of Appellant’s assertion of Private Counsel’s ineffectiveness for
failing to seek reconsideration of, or an appeal from, Appellant’s February 9,
2022 delinquency adjudication.
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In its opinion, the juvenile court explained its basis for concluding that
Appellant’s nunc pro tunc motion was untimely. The juvenile court attributed
knowledge of Appellant’s delinquency adjudication to the Public Defender prior
to April 22, 2022, when the Public Defender was first appointed to represent
Appellant in this matter. Because the Public Defender represented Appellant
on his “adult matter” beginning in January 2022, the court stated that it was
“reasonable for the trial court to infer that the Public Defender knew, or should
have known, . . . since March 15, 2022, that an alleged error may have
occurred.” Opinion, 12/1/22, at 8.
As the Commonwealth appropriately observes:
[T]he court suggested that the motion was untimely under Rule
622(A) because [Appellant] did not challenge his prior counsel’s
performance within sixty days of when prior counsel had ceased
to represent him. In this regard, the court emphasized that an
attorney for the Defender Association was present at the hearing
in March of 2022 at which prior counsel failed to appear. But the
Defender Association attorney did not speak or play any
substantive role in that proceeding. Nor would he have had
occasion at the time to undertake an investigation of prior
counsel’s overall performance. Moreover, within sixty days of
being appointed counsel in April 2022, he duly filed the motion
nunc pro tunc. Therefore, that motion was properly before the
court below.
Commonwealth Brief at 11 (citations omitted). We agree. We find that the
juvenile court abused its discretion by rejecting Appellant’s motion as untimely
filed.
While acknowledging that Appellant’s motion was properly before the
court below, the Commonwealth suggests that the record is lacking in
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evidence that Private Counsel did not have any contact with Appellant
following the February 9, 2022 adjudicatory hearing. As the Commonwealth
recognizes:
It is undisputed that prior counsel did not appear to represent
[Appellant] at the hearing on March 15, 2022. But that was after
the time period for filing optional post-dispositional motions, as
well as a notice of appeal, had already expired. See Pa.R.J.[C.]P.
620. Thus, at a minimum, a remand is necessary so that
[Appellant] may present evidence at a hearing that prior counsel
did not, in fact, consult with him following his adjudicatory hearing
as he alleges. Additionally, [Appellant] will need to establish that
he was prejudiced by counsel’s failure to file post-dispositional
motions. See Commonwealth v. Reaves, [923 A.2d 1119 (Pa.
2007)]. That would not be the case if the motions lacked merit or
would not have resulted in any benefit.
Commonwealth Brief at 12 (footnote omitted).
We agree with the Commonwealth’s analysis and its proposed
resolution. Therefore, having determined that the juvenile court abused its
discretion by rejecting Appellant’s Motion for Relief Nunc Pro Tunc as untimely,
we remand with instruction to conduct an evidentiary hearing so that
Appellant may present evidence regarding his contact, or lack thereof, with
Private Counsel following the February 9, 2022 adjudicatory hearing. In the
event the court determines that Private Counsel was ineffective, and that
Appellant suffered prejudice as a result, the court shall reinstate Appellant’s
post-dispositional rights.4
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4 Having determined that the second element of Appellant’s first issue is
dispositive, we decline to address either the first element of that issue or
Appellant’s second issue.
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Order reversed. Case remanded for further proceedings in accordance
with our instructions. Jurisdiction relinquished.
Date: 12/12/2023
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