J-S74019-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.D., A MINOR, :   IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
                                   :
                                   :
APPEAL OF: B.D.                    :
                                   : No. 193 EDA 2014


       Appeal from the Dispositional Order Entered February 26, 2013
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-JV-10000254-2012

BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED JANUARY 05, 2015

      Due to a series of procedural errors by both the juvenile court and his

counsel, the majority concludes that we are constrained to quash this

appeal. I respectfully dissent, and would address the merits.

      First, I point out the error of the juvenile court, which was the catalyst

to the “procedural morass” we are facing in this case.       Effective June 8,

2012, section 6337.1 was added to the Juvenile Act to protect further the

rights of juveniles involved in delinquency proceedings. It reads, in relevant

part, that “[i]f a child appears at any hearing without counsel, the court

shall appoint counsel for the child prior to the commencement of the

hearing.” 42 Pa.C.S. § 6337.1(b)(1) (emphasis added).         On February 26,

2013, B.D. appeared before the juvenile court for a dispositional hearing

while not represented by counsel.        The juvenile court did not appoint

counsel. This was clear error. Compounding that error is the fact that the



* Retired Senior Judge assigned to the Superior Court.
J-S74019-14


juvenile court did not inform B.D. of his appellate rights after his

dispositional hearing. See N.T., 2/26/2013.1

     After the juvenile court finally appointed counsel, counsel attempted

repeatedly to discuss the restitution order with the juvenile court, but the

juvenile court declined to consider it. See N.T., 9/5/2013, at 4-7.      Thus,

counsel timely filed a motion for leave to appeal the February 26, 2013

dispositional order nunc pro tunc pursuant to Pa.R.Juv.P. 622. The juvenile

court took no action on that motion; thus, pursuant to Pa.R.Juv.P. 625(E),

an order was entered on December 19, 2013 denying the motion by

operation of law.   There is no question that was an appealable order;

however, counsel then erred by filing a notice of appeal from the February

26, 2013 dispositional order rather than the December 19, 2013 order

denying leave to file an appeal nunc pro tunc.

           A juvenile judged to be delinquent has a right to appeal. A
     juvenile also has a right to effective assistance of counsel on
     appeal, which includes the right to have counsel properly
     preserve and effectuate his appeal. Failure by appellate counsel
     to preserve appellate rights constitutes ineffectiveness per se.
     The typical remedy for such ineffectiveness is to remand for an
     appeal nunc pro tunc.

In re J.M.P., 863 A.2d 17, 20 (Pa. Super. 2004) (citations and footnote

omitted).


1
  I recognize that there is no explicit requirement that the juvenile court
must inform a juvenile of his appellate rights. However, this Court has
previously held that “a juvenile court must so inform a juvenile, and the
failure to do so is a breakdown in the court’s operation[.]” In Re J.M.P.,
863 A.2d 17, 21 (Pa. Super. 2004).


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     Because counsel was per se ineffective in failing to preserve B.D.’s

appellate rights, in combination with the breakdown of the system by failure

to appoint counsel, I conclude that this Court should not quash this appeal

and should consider the merits.




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