J-S14009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.E., A MINOR          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: J.E., A MINOR                   :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 2422 EDA 2018

            Appeal from the Dispositional Order Entered July 9, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-JV-0000019-2012


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 09, 2019

       J.E. appeals from the order, entered in the Court of Common Pleas of

Montgomery County, dismissing her motion for nunc pro tunc relief. The order

incorporated the findings and conclusions of law from the Juvenile Court’s May

31, 2018 order.1 On appeal, J.E. challenges the legality of her continued

____________________________________________


1  See Pa.R.J.C.P. 622, 628A(3). It is clear that an initial order of disposition
is a final order from which a juvenile may appeal as of right. See In re M.D.,
839 A.2d 1116, 1119 (Pa. Super. 2003). Following the initial disposition, the
disposition of a juvenile who has been adjudicated delinquent “is subject to
frequent, mandatory review by the hearing court.” Id.; Pa.R.J.C.P. 610(a)(1)
(requiring dispositional review hearing at least every six months). Rule 622
provides for a motion for nunc pro tunc relief “no later than sixty days after
the date that the error was made known.” Pa.R.J.C.P. 622A. Rule 628A
provides that the juvenile court’s order on the motion for nunc pro tunc relief
shall include the court’s findings and conclusions of law, as well as 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.” Pa.R.J.C.P. 628A(1),
(3).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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commitment, arguing her continued detention violates section 6353(a) of the

Juvenile Act and her due process rights. After our review, we affirm.

        J.E., an intellectually challenged then-13-year-old female, was charged

with involuntary deviate sexual intercourse, aggravated indecent assault,

indecent assault, and incest. On March 30, 2012, J.E. admitted to three counts

of misdemeanor indecent assault2 against her six-year-old sister3 and the

court adjudicated J.E. delinquent. The court held a status hearing on April 27,

2012, after which J.E. was committed to Devereux Mapleton Campus

(Devereux), a residential treatment facility in Chester County, by private

placement. On November 26, 2012, J.E. was released from Devereux, and,

following a hearing on that date, the court entered a disposition order

detaining J.E. at Montgomery County Youth Center (MCYC), pending

evaluation and re-disposition.

        The court held a disposition hearing on December 13, 2012, after which

the court ordered J.E. detained at MCYC pending approval for placement in a
____________________________________________


2   18 Pa.C.S.A. § 3126(a)(7).

3 J.E. had committed similar offenses against her sister in 2010, for which she
received therapeutic foster care from April 2010 through June 2011. J.E. has
a history of learning disabilities, poor impulse control, and poor boundaries.
She has been diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD)
and Oppositional Defiance Disorder (ODD). Despite her learning disabilities
and borderline intellectual functioning, J.E. understood the basics of the legal
system and responded appropriately when questions were presented in a clear
and simple manner; she was found competent by the court. She also
acknowledged that she would take advantage of chances for opportunistic
contact with younger children if unsupervised.



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residential treatment facility.      On February 21, 2013, J.E. was placed in a

therapeutic foster home in Philadelphia, but she failed to adjust. On April 26,

2013, following another hearing, J.E. was removed from foster care and

detained again at MCYC, at which time the court ordered psychosexual,

psychological, and psychiatric evaluations.4 On May 13, 2013, the court held

a disposition hearing and ordered J.E. detained at MCYC, pending placement

in a residential treatment facility. On May 31, 2013, the court held another

disposition hearing and detained J.E. pending her placement at Devereux on

June 10, 2013. Trial Court Opinion, 8/29/18, at 8 (Table of Orders Supporting

Initial and Continued Commitment).

       The court held disposition review hearings on November 22, 2013, May

29, 2014, October 30, 2014, March 26, 2015, and June 25, 2015. Following

each hearing, the court continued placement at Devereux. Id.

       On July 31, 2015, J.E. was discharged from Devereux, and the court

ordered J.E. detained at MCYC. On August 21, 2015, J.E. was committed to

the North Central Secure Treatment Unit (NCSTU) in Danville, Pennsylvania;

the court noted that J.E. “[p]oses a risk to the community.”          Id. at 9.

Dispositional review orders continued placement at NCSTU on January 27,




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4 Appellant notes that April 24, 2017 is “[f]our years from [the] date on which
J.E. was removed from foster [care] and returned to detention.” See
Appellant’s Brief, at 9. See also Trial Court Opinion, supra at 8 (Table).



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2016, June 22, 2016, September 30, 2016, January 25, 2017, June 28, 2017

and September 20, 2017.          J.E., now age 20, remains confined at NCSTU.5

        On February 28, 2018, pursuant to Rule 622, the Public Defender6 filed

a motion for nunc pro tunc relief on behalf of J.E., arguing that J.E.’s continued

detention violated section 6353(a) of the Juvenile Act. 42 Pa.C.S.A. §§ 6301-

6375.7 See Motion for Nunc Pro Tunc Relief, 2/18/18, at ¶ 5.a.       The petition


____________________________________________


5 At the August 21, 2015 review hearing, the court found J.E. posed a risk to
the community, and thus the court found placement at NCSTU was
appropriate. At the January 27, 2016 hearing, the court noted appropriate
progress and compliance with the treatment plan; however, the June 22, 2016
review order noted only moderate progress and that J.E. “has shown
resistance.” Of note, the court’s dispositional review order indicated “[t]he
juvenile has made moderate progress toward alleviating the circumstances
which necessitate the original placement, in that juvenile completed some of
her treatment work, but has shown resistance.” Order, 6/22/16. At the
September 30, 2016 review, the court noted inconsistent compliance with the
treatment plan, and then compliance in January 2017. At the January 25,
2017 review hearing, it was determined J.E. was resistant to treatment, and
indicated her continued sexual desire towards young children. The June 28,
2017 review order noted compliance, but stated, “still has work to complete
before a successful discharge can be recommended.” Dispositional Review
Order, 6/28/17. The September 20, 2017 order continued placement, noting
“inconsistent progress, inconsistent with her efforts in treatment.”
Dispositional Review Order, 9/20/17.

6J.E. was privately represented by Brian J. Smith, Esquire, from April 27, 2012
until January 24, 2018, when Attorney Smith petitioned to withdraw. The
court granted Attorney Smith’s petition to withdraw and appointed the Public
Defender to represented J.E.

7   Section 6353 provides, in relevant part:

        § 6353. Limitation on and change in place of commitment




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alleged J.E. had been confined in placement or detained at MCYC for a total of

5 years and 8 months. Id. at ¶ 7.j.

        In an order dated May 31, 2018, the Juvenile Court explained its

reasoning for continuing commitment. The court’s order states, in relevant

part:

        The only ground for relief supported with any averments of fact is
        that J.E.’s “rights were violated by a failure to comply with the
        statutory parameters of juvenile sentencing as required by 42
        Pa.C.S. § 63[5]3(a), requiring immediate release from detention.”
        Motion, ¶ 5.a.


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        (a) General rule.--No child shall initially be committed to an
        institution for a period longer than four years or a period longer
        than he could have been sentenced by the court if he had been
        convicted of the same offense as an adult, whichever is less. The
        initial commitment may be extended for a similar period of
        time, or modified, if the court finds after hearing that the
        extension or modification will effectuate the original
        purpose for which the order was entered. The child shall have
        notice of the extension or modification hearing and shall be given
        an opportunity to be heard. The committing court shall review
        each commitment every six months and shall hold a disposition
        review hearing at least every nine months.

42 Pa.C.S.A. § 6353(a)(emphasis added).

Here, J.E. admitted to misdemeanor indecent assault, an offense punishable
by up to five years’ imprisonment when committed by an adult. See 18
Pa.C.S.A. § 1104(1) (person convicted of misdemeanor may be sentenced to
imprisonment for definite term which shall be fixed by court and shall be not
more than: (1) five years in case of misdemeanor of first degree). Thus,
section 6353(a) prohibits the court from entering an initial detainment order
for more than four years unless the court meets certain requirements. See
42 Pa.C.S.A. § 6353(a).




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        At the time of the original commitment, section 6353(a) allow[ed]
        a judge to commit a juvenile to an appropriate facility for a term
        not exceeding the shorter of either four years or the term of total
        confinement to which she could have been sentenced if she had
        been an adult convicted of the offense that served as the basis for
        the delinquent act. After that, “[t]he initial commitment may be
        extended for a similar period of time, or modified, if the court finds
        after hearing that the extension or modification will effectuate the
        original purpose for which the order was entered.”

        The text of section 6353(a) does not limit the judicial power to
        extend the commitment in any way. The text of the Juvenile Act
        as a whole does not limit the power of the judge to extend
        commitment, other than the implied loss of jurisdiction when the
        juvenile reaches adulthood.[8]

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8   The Juvenile Act defines “child” in section 6302 as follows:

        “Child.” An individual who:

        (1) is under the age of 18 years;

        (2) is under the age of 21 years who committed an act of
        delinquency before reaching the age of 18 years; or

        (3) is under the age of 21 years and was adjudicated dependent
        before reaching the age of 18 years, who has requested the court
        to retain jurisdiction and who remains under the jurisdiction of the
        court as a dependent child because the court has determined that
        the child is:

           (i) completing secondary education or an equivalent
           credential;

           (ii) enrolled in an institution which provides postsecondary
           or vocational education;

           (iii) participating in a program actively designed to promote
           or remove barriers to employment;

           (iv) employed for at least 80 hours per month; or

           (v) incapable of doing any of the activities described in
           subparagraph (i), (ii), (iii) or (iv) due to a medical or



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       As a result, the Act gives the judge the power to extend the initial
       commitment as many times as necessary to effectuate its
       purpose, as long as each extension, by itself, does not exceed the
       maximum term allowable for the original commitment [here, four
       years].

       Section 6353(a) does not expressly specify when a judge may
       extend the initial commitment, but the text of the section and the
       context of the Juvenile Act as a whole suggests that the judge
       may do so at the time of a periodic review of the commitment or
       disposition. Section 6353(a) requires a commitment review every
       six months and a disposition review every nine months.

       The text of section 6353(a) does not require the judge to state
       the term of the extended commitment. The text of the rest of the
       [A]ct does not expressly or impliedly impose such an obligation.
       Therefore, if a judge orders a juvenile to remain committed,
       whether a the same facility or a different one, but does not state
       the term of the extended commitment, then the term of the
       extension lasts, as a minimum, until the time the court must
       review the commitment or disposition.1

       The motion and exhibits filed on behalf of J.E. show that the
       judges of the juvenile court performed those reviews as
       scheduled, and when they did, they determined that J.E.
       continued to be a danger to the public, or at least continued to be
       in need of treatment. At each review hearing, the judge ordered
       her to remain committed, or changed the place of commitment
       when necessary. Each of the extensions of the term of
       commitment was lawful. Thus, the claim that J.E. is being
       unlawfully confined lacks merit.
              1   The only exception would be if the sentence for [the] crime that served as
          the basis for the delinquent act is shorter than the time before the next review
          hearing. The circumstances of this case do not fall within that exception.



Order, 5/31/18, at 2-4.
____________________________________________


          behavioral health condition, which is supported by regularly
          updated information in the permanency plan of the child.

42 Pa.C.S.A. § 6302 (emphasis added).


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       In its order, the court stated that the motion, as pled, raised no issue of

material fact and the court intended to deny it without a hearing. The court’s

order stated that J.E. “may respond to this proposed denial within twenty days

of the date this order is filed on the docket. Thereafter the undersigned shall

either: deny all relief sought in the motion; grant leave to file an amended

motion; or direct that the proceedings continue.”        Id. at 4-5.    The Public

Defender filed no response.9 The court denied the motion, and this appeal

followed.

       On appeal, J.E. raises the following issues:

          1. Did the trial court err in dismissing [J.E.’s] claim that she is
             illegally confined because the juvenile court extended her
             term of commitment beyond the maximum term of
             confinement permitted under the Juvenile Act?



____________________________________________


9 In appellant’s brief, the Public Defender states that the juvenile court
appointed the Office of the Public Defender on January 26, 2018, and on
February 28, 2018, the “newly-assigned assistant public defender filed the
underlying motion[.]” Appellant’s Brief, at 9. The Public Defender goes on
to state that it “did not timely amend the motion and on July 6, 2018, the
juvenile court issued a final order denying the motion.” Appellant’s Brief, at
10. The brief refers to “newly-assigned assistant public defender,” “new
counsel,” “defense counsel” and the “public defender” in one paragraph. Id.
Although not entirely clear, it seems that the public defender is raising the
ineffectiveness of another member or members of the public defender’s office.
“[A]s a general rule, a public defender may not argue the ineffectiveness of
another member of the same public defender’s office since appellate counsel,
in essence, is deemed to have asserted a claim of his or her own
ineffectiveness.” Commonwealth v. Ciptak, 665 A.2d 1161, 1161–62 (Pa.
1995). In any event, we find this inconsequential since the failure to amend
the motion did not pertain to the legality of J.E.’s ongoing commitment; the
public defender states in its brief that it is proceeding “solely on the legality
of the minor’s ongoing commitment.” Appellant’s Brief, at 10 n.2

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           2. Did the trial court err in dismissing [J.E.’s] claim that she is
              illegally confined because the juvenile court extended her
              term of commitment without conducting a hearing on the
              issue of extension, in violation of the Juvenile Act?

           3. Did the trial court err in dismissing [J.E.’s] claim that her
              due process rights were violated where the juvenile court
              extended her institutional commitment beyond the statutory
              maximum without notice of the extension, without an
              opportunity to be heard on the issue of the extended
              sentence, without procedural safeguards against self-
              incrimination, without a reviewable court record, and absent
              other procedural safeguards?

Appellant’s Brief, at 4. We address these issues together as they each concern

the legality of J.E.’s ongoing commitment.

        The interpretation and application of a statute is a question of law. C.B.

v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013). As with all questions of law, we

employ a de novo standard of review and a plenary scope of review to

determine whether the court committed an error of law. Id.

        Here, we are asked to interpret and apply section 6353 of the Juvenile

Act. As noted above, the statute states that the initial commitment shall not

exceed four years or a period longer than the juvenile could have been

sentenced had she been convicted of the offense as an adult, whichever is

less.   42 Pa.C.S.A. § 6353(a).      J.E. admitted to committing misdemeanor

indecent assault, an offense punishable by up to five years’ imprisonment

when committed by an adult. See 18 Pa.C.S.A. § 1104(1).             Thus, pursuant

to section 6353(a), the court was prohibited from entering an initial

commitment order for more than four years. See 42 Pa.C.S.A. § 6353(a).

Essentially, J.E. argues that her commitment beyond the four years required

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an “extension hearing.”        See Appellant’s Brief, at 10.     We disagree.   This

Court’s recent decision in Commonwealth v. J.C., 199 A.3d 394 (Pa. Super.

2018), is dispositive.10

       In J.C., the juvenile, who, like J.E., was adjudicated delinquent of

indecent assault as a first-degree misdemeanor, was committed to a

placement facility, and the Commonwealth sought to extend his commitment

beyond four years. Id. at 397. J.C. argued that he had been detained for

more than the statutory maximum sentence of five years, and that the

juvenile court should have held a hearing at the expiration of the four years.

Id. Specifically, J.C. argued that the Commonwealth failed to file a petition

to extend his initial commitment beyond four years and the court failed to hold

a hearing on the issue prior to the expiration of four years, as required by

statute.   J.C. asserted that the plain language of the statute references a

“commitment review” hearing, a “disposition review” hearing, and an

“extension or modification” hearing.”          Id. at 399.   Therefore, J.C. argued,

because the statute specifies three types of hearings, the Commonwealth is

required to request, and the court is required to hold, an “extension or

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10 In Appellant’s Reply Brief, the public defender erroneously claims that the
Commonwealth cannot rely on J.C., because this Court has granted
reargument en banc in that case and the opinion has been withdrawn.
Appellant’s Brief, at 6. The case to which the public defender refers, captioned
In re J.C., is a different case, raising a different issue, and is docketed at
1391 WDA 2017. Commonwealth v. J.C., on which the Commonwealth
relies and which we find dispositive, is docketed at 1059 WDA 2017. The
Commonwealth filed an application for post-submission communication,
clarifying this error, which this Court grants. See Pa.R.A.P. 2501.

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modification” hearing prior to extending commitment beyond four years. Id.

This Court disagreed, stating:

         [W]e disagree with J.C.’s assertion that the juvenile court
         did not comply with Section 6353 when it extended J.C.’s
         commitment beyond four years. We recognize that the
         language in the statute requires a court to review a child’s
         commitment every six months, hold a disposition review
         hearing at least every nine months, and conduct an
         “extension or modification” hearing prior to extending a
         commitment beyond the statutorily allotted period.
         However, there is no language in the statute requiring
         that a juvenile court conduct these reviews and
         hearings at separate times. The clear purpose of the
         statute is to ensure that: (1) a court reviews a child’s
         commitment and disposition on a regular basis; and
         (2) a child is given appropriate notice and an
         opportunity to be heard, and the court makes certain
         findings prior to committing a child beyond the
         statutorily allotted period.

Id. at 399 (emphasis added). Thus, we held that any review hearing can

serve as an “extension [or] modification” hearing “if the child has appropriate

notice, the child has an opportunity to be heard, and the court makes certain

findings pursuant to Section 6353.” Id.

      Regular review of juveniles and their commitments to monitor the

juvenile’s progress, address their treatment needs, and provide restorative

justice is fundamental to the purposes of the Juvenile Act. See 42 Pa.C.S.A.

§ 6301(b)(2). Our review of the record indicates that, in accordance with

section 6353, Judge Demchick-Alloy held regular disposition/placement

review hearings, considered J.E.’s progress or lack of progress at each

hearing, and made findings to support the dispositions in accordance with


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section 6353. See supra n.4. See also In re Love, 646 A.2d 1233, 1238

n.5 (Pa. Super. 1994) (Juvenile Court’s discretion in implementing a

disposition is broad; it is flexible and court has considerable power to review

and modify commitment, taking into account juvenile’s rehabilitative progress

or lack theerof).     Here, Judge Demchick-Alloy presided over J.E.’s case for

the past six years; she held disposition/placement review hearings every two

to five months, clearly in compliance with the statute and the juvenile court

rules. Between April 26, 2013 and April 24, 2017, the court held ten review

hearings. J.E. had notice and an opportunity to be heard at each hearing, and

she was present for six of those hearings.11 Following each hearing, the court
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11 J.E. claims that her due process interests have been compromised because
her commitment has led to institutionalization past her nineteenth birthday,
triggering referral to the Pennsylvania Sex Offender Assessment Board
pursuant to 42 Pa.C.S.A. § 6358. Appellant’s Brief, at 21. J.E. argues that
section 6358 mandates that “children adjudicated delinquent of certain
charges be assessed by the State Sexual Offenders Assessment Board
[(SOAB)] for a determination of what is the practical equivalent of a Sexually
Violent Predator (“SVP”) designation. Id. The Commonwealth responds that
this Court has held Act 21, which governs the commitment of sexually violent
children who have been found to be in need of treatment pursuant to section
6358, unconstitutional. See Commonwealth’s Brief, at 17-18 n.13, citing In
re J.C., 2018 PA Super 335, 2018 WL 6520225 (Pa. Super. 2018). However,
two days after the Commonwealth filed its brief, this Court granted
reargument en banc in that case and withdrew the opinion. See Order, No.
1391 WDA 2017, filed 2/15/18. In re J.C. is scheduled for argument before
this Court en banc on May 29, 2019. See supra note 10. We also note that
the Public Defender points out that on February 20, 2019, the SOAB concluded
J.E. “does NOT meet the criteria for involuntary inpatient civil commitment
under Act 21.” SOAB Report, 2/20/19. See Appellant’s Reply Brief, at 1, n.2.
That claim, therefore, is moot. See In re R.D., 44 A.3d 657 (Pa. Super.
2012) (issue can become moot during pendency of appeal due to intervening
change in facts of case or intervening change in applicable law).



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determined that J.E. continued to pose a threat to the community or, at the

very least, continued to be in need of treatment.

       The limitation period of four years applies only to an initial placement,

and the clear language of section 6353(a) provides that an initial commitment

may be extended or modified if the extension or modification is necessary to

“effectuate the original purpose for which the order was entered[.]” 42

Pa.C.S.A. § 6353(a).12 Therefore, J.E.’s claim that the court “never conducted

an extension hearing[,]” Appellant’s Brief, at 10, in compliance with the

statute, is meritless. See J.C., supra at 399 (unreasonable and redundant

to impose condition that court, which is already holding regularly scheduled

hearings, hold separate hearings to review “commitment,” “disposition,” and

“extension and modification.”).          As long as the limitation period is not

exceeded for the initial commitment, and the disposition and commitment

are regularly reviewed, section 6353(a) is satisfied. We find Judge Demchick-

Alloy complied with the statute.

       Order affirmed.




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12 See 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free
from all ambiguity, the letter of it is not to be disregarded under the pretext
of pursing its spirit.”); see also Cagey v. Commonwealth, 179 A.3d 458,
468 (Pa. 2018) (“[T]he best indication of the General Assembly’s intent may
be found in a statute’s plain language.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




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