J-S04023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: S.M.                              :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF: S.M., A JUVENILE              :     No. 1023 EDA 2013


                Appeal from the Order Entered March 8, 2013,
               In the Court of Common Pleas of Lehigh County,
              Juvenile Division, at No. CP-39-JV-0000148-2013.


BEFORE: BENDER, P.J., SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 23, 2014

      Appellant, S.M., a juvenile, appeals from the dispositional order

entered on March 8, 2013, adjudicating him delinquent. We reverse.

      The record reveals that on March 8, 2013, following a hearing, the

juvenile court adjudicated S.M. delinquent of robbery graded as a felony of

the third degree.     The juvenile court committed S.M. to the Abraxas

Academy for juvenile male offenders.

      On April 4, 2013, S.M. filed a timely notice of appeal.    On April 16,

2013, the juvenile court directed S.M. to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). S.M. timely filed his

Pa.R.A.P. 1925(b) statement on April 24, 2013, alleging that the evidence

was insufficient to establish the elements of robbery.

      On June 25, 2013, 109 days after the March 8, 2013 dispositional

order, the juvenile court issued an amended order adjudicating S.M.



________________
*Former Justice specially assigned to the Superior Court.
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delinquent of conspiracy to commit robbery as opposed to robbery.            The

juvenile court then directed S.M. to file an amended Pa.R.A.P. 1925(b)

statement challenging the conspiracy adjudication. S.M. dutifully complied

and asserted the evidence was insufficient to support the adjudication for

criminal conspiracy.    The juvenile court filed a Pa.R.A.P. 1925(a) opinion

addressing this claim on August 5, 2013.

        In an unpublished memorandum filed on April 8, 2014, this Court



order adjudicating S.M. delinquent of conspiracy rather than robbery.         As

noted above, the juvenile court purported to amend the dispositional order

to change the criminal act underlying the adjudication of delinquency more

than thirty days after the order was entered and after the appeal was filed.

In our prior decision, this Court concluded that the juvenile court was

without jurisdiction to take such action and in doing so, violated 42 Pa.C.S. §

5505.1 In that prior memorandum we stated as follows:




1
    42 Pa.C.S. § 5505 provides as follows:

        Modification of orders

        Except as otherwise provided or prescribed by law, a court upon
        notice to the parties may modify or rescind any order within 30
        days after its entry, notwithstanding the prior termination of any
        term of court, if no appeal from such order has been taken or
        allowed.



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           Therefore, once the thirty day period announced in section
     5505 has expired or once a defendant files a notice of appeal,
     the trial court is without jurisdiction to alter or modify its order.
     Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super.
     2007).

           N
     [sic] powers to amend its records, to correct mistakes of the
     clerk or other officer of the court, inadvertencies of counsel, or
     supply defects or omissions in the record, even after the lapse of
     th          In re K.R.B., 851 A.2d 914, 918 (Pa. Super. 2004)

     the court would normally be divested of jurisdiction, a court may
                                                                    Id.
     (citation omitted).

           Here, the juvenile court alleged that its intent was to
     adjudicate S.M. delinquent of conspiracy and not robbery.
     Juvenile Court Opinion, 8/5/13, at 1. However, the intent of the
     juvenile court is irrelevant. See Commonwealth v. Borrin, 80
     A.3d 1219 (Pa. 2013) (in considering alteration of an order

     Therefore, in the case at bar, while the juvenile court was
     permitted to correct a patent mistake, we conclude that
     changing the criminal act underlying the adjudication of
     delinquency after the appeal was filed was improper.         See
     Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007)
     (discussing the type of errors that may be corrected through the
                                                 forth in 42 Pa.C.S.A.
     § 5505 and permitting the trial court to correct an illegal
     sentence).1 Additionally, the Holmes Court went on to clarify:

                  Although the defendants before this court
           warrant relief under the inherent power of courts to
           correct patent errors, we must also emphasize the
           limits of this power. This exception to the general
           rule of Section 5505 cannot expand to swallow the
           rule. In applying the exception to the cases at bar,
           we note that it is the obviousness of the
           illegality, rather than the illegality itself, that




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      Holmes, 933 A.2d at 66-67 (emphasis added).
            1
              The two cases predominantly analyzed in Holmes
            are: Commonwealth v. Cole, 263 A.2d 339, 341
            (Pa. 1970) (allowing the trial court to correct an

            for a new trial and arrest of judgment because the
            order    was       clearly     antagonistic),     and
            Commonwealth v. Klein, 781 A.2d 1133 (Pa.
            2001) (holding that a trial court had jurisdiction to
            correct manifest error in the calculation of the

            appeal).

            Here, there is nothing patently and obviously erroneous

      not correcting an illegal sentence or amending a contradictory

      What the juvenile court did was tantamount to a criminal court
      changing the verdict while a case was on appeal. We cannot
      conclude that the juvenile court was permitted to change its
      original order under the inherent powers described in Holmes.
      Accordingly, the ju
      S.M. delinquent of conspiracy is a nullity, and S.M. remains
      adjudicated delinquent of robbery pursuant to the dispositional
      order entered on March 8, 2013.

In re S.M., 1023 EDA 2013, ___ A.3d ___ (Pa. Super. filed April 8, 2014)

(unpublished memorandum at 3-4).

      Additionally, due to the myriad procedural missteps in this matter, we

remanded this matter to the juvenile court to allow for the filing of a

                                                                    P. 1925(b)

statement in which he challenged the adjudication of delinquency for

robbery.   On June 25, 2014, the juvenile court filed its opinion, and the

parties filed responsive briefs.



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      In its June 25, 2014 opinion, the juvenile court provides an

explanation of the reason it amended the original order and cites to In re

K.R.B., 851 A.2d 914, 918 (Pa. Super. 2004).        However, this Court has

already decided the issue as to whether the juvenile court was merely

correcting a patent mistake in the negative.       In re S.M., (unpublished



order a nullity. Id.

      This Court, in our prior memorandum, directed the juvenile court prior

to provide a basis for adjudicating S.M. delinquent of the crime of robbery.

In re S.M., (unpublished memorandum at 4). Upon review, nothing in the



of robbery. Moreover, nothing in the record supports an adjudication of the

crime of robbery.

      Accordingly, we conclude the evidence was insufficient to sustain



errors that occurred in the juvenile court or countenance their correction

after the thirty day period lapsed.   Holmes, 933 A.2d at 66-67.     For the

reasons set forth above, the dispositional order adjudicating S.M. delinquent

of robbery is reversed.

      Order reversed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2014




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