J-A33034-15


                                   2016 PA Super 86

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                       Appellee             :
                                            :
                  v.                        :
                                            :
B.H., A MINOR,                              :
                                            :
                       Appellant            :     No. 990 EDA 2015


         Appeal from the Dispositional Order Entered May 2, 2015,
            in the Court of Common Pleas of Chester County,
           Criminal Division at No(s): CP-15-JV-0000339-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                          FILED APRIL 14, 2016

      B.H. (Appellant) appeals from the dispositional order entered on May

2, 2014, following his adjudication for the crimes of sexual assault and

rape.1 After careful review, we are constrained to vacate the juvenile court’s

dispositional orders and remand for further proceedings.

      On May 11, 2013, Appellant, then 17 years of age, engaged in sexual

intercourse with another minor without the victim’s consent. As a result, the

Chester County Juvenile Probation Department filed a delinquency petition


1
  Appellant purports to appeal from the order denying his post-disposition
motions. However, the appeal properly lies from the dispositional order
entered on May 2, 2014. We have corrected the caption accordingly. See 42
Pa.C.S. § 6341, Comment (“Findings of delinquency or deprivation, as well
as the orders of disposition, are orders of the common pleas court and as
such are appealable to the Superior Court as a matter of right under Article
V, Section 9 of the Pennsylvania Constitution.”)



* Retired Senior Judge assigned to the Superior Court.
J-A33034-15


(petition 130576) against Appellant, charging him with two counts of rape,

two counts of aggravated indecent assault, and two counts of indecent

assault.

      On November 15, 2013, Appellant appeared before the Honorable John

H. Hall to enter an admission on both petition 130576 and a second,

unrelated delinquency petition.2 With respect to petition 130576, Appellant,

the Commonwealth, and the victim agreed “to amend the petition to add a

charge of sexual assault […] a felony of the second degree” and “for an

adjudication on [the amended charge of sexual assault,] with a finding of

fact without an adjudication on the charge of rape [… a] felony of the first

degree.” N.T., 11/15/2013, at 2-3. The agreement provided that all other

charges enumerated in petition 130576 would be withdrawn. Id.              As

evidence of his acceptance of the agreement, Appellant, through counsel,

submitted an admission form pursuant to Pa.R.J.C.P. 407, which outlined the

agreement, see Admission Form, 11/16/2013, at 1,3 as well as a post-

disposition rights form.

      The terms of the agreement on petition 130576 provided that

Appellant’s disposition be “deferred” and Appellant agreed to participate in a


2
  This second petition, 130623, and its disposition, are not at issue in this
appeal.
3
  Although the admission form contained in the certified record is dated
November 16, 2013, the record makes clear that this form was presented to
and accepted by the juvenile court at the November 15, 2013 hearing.



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GPS monitoring program and substance abuse rehabilitation and to abide by

the terms and conditions of both programs. See Order, 11/21/2013.

        The agreement specifically left open the possibility that the finding of

fact as to the rape charge could be converted into an adjudication if

Appellant failed to comply with the terms of the agreement, at which time

Appellant would be required to register as a sex offender. In acceptance of

this arrangement, Appellant executed and submitted an addendum to the

admission form outlining his rights and obligations under the Sex Offender

Registration and Notification Act (SORNA).4 Addendum to Admissions Form

Sexual Offender Registration And/Or Act 21 Colloquy, 11/16/2013, at 1.5

        This agreement was accepted by the juvenile court, which proceeded

to an oral colloquy of Appellant, wherein Appellant stated that he understood

the nature of the charges to which he made the admission and the terms of

the agreement proffered by the Commonwealth. N.T., 11/15/2013, 5-8, 20-

24. An order outlining the terms of the agreement was entered by the

juvenile court on November 21, 2013. The order states, in relevant part, as

follows.




4
    42 Pa.C.S. §§ 9799.10-9799.41.
5
  Again, although the addendum to the admission form contained in the
certified record is dated November 16, 2013, the record makes clear that
this form was presented to and accepted by the juvenile court at the
November 15, 2013 hearing.




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     Petition #130576- Upon agreement of all parties, the petition is
     amended to include the charge of Sexual Assault 18 Pa.C.S.
     § 3124.1 (F2). An adjudication of delinquency is entered on that
     offense. As a result of the adjudication on this date, this case is
     eligible for limited public inspection. A finding of fact without an
     adjudication is entered on the charge of Rape 18 Pa.C.S.
     § 3121(a)(3) (F1). In relation to this petition, the child shall:

           A. Remain under the supervision of the Court until
           age 21
           B. Submit to DNA collection and pay the $250.00
           collection fee
           C. Pay restitution of $478.68
           D. Pay $4,009.00 (Four Thousand Nine Dollars) lab
           fee to Pennsylvania State Police DNA Lab

                                    ***

     Petition #130576… - Disposition is deferred. Pending further
     hearing or Order of the [c]ourt, said child shall be placed on the
     GPS monitor and shall abide by the following conditions:

           A. Call and Report to your Probation Officer as
           directed
           B. Submit random urine samples for substance
           abuse testing, in accordance with Chester County
           Juvenile Court Policy
           C. Do not leave the County or State without
           permission from the Juvenile Probation Department
           D. No possession of any firearms
           E. No possession or use of any illegal drugs, alcohol
           or drug paraphernalia
           F. Comply with all municipal, county, state and
           federal laws or ordinances
           G. Report any change of address, phone number,
           employment; school or status in the community
           H. Report any contact with law enforcement to the
           Juvenile Probation Office
           I. Have no contact with other known offenders, co-
           defendants or victims
           J. Allow the Probation Officer to visit at residence,
           school or place of employment
           K. Have no attendance or discipline problems at
           school


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            L. Pay [c]ourt costs or perform community service in
            lieu of [c]ourt costs
            M. Abide by all reasonable household rules and
            curfew
            N. Submit to police processing on each petition
            within thirty days, unless already completed
            O. Undergo a forensic evaluation
            P. Participate in the Evening Reporting Center (ERC)
            program
            Q. Continue to participate in Rehab After Work
            Intensive Outpatient Counseling
            R. Continue to participate in individual therapy with
            Delaware County Professional Services
            S. Have no unsupervised contact with children two or
            more years younger
            T. Not to possess, view, or access pornography of
            any type
            U. Have no contact with the victim(s) or their family
            members
            V. Have no unsupervised internet access until
            deemed appropriate by Probation Officer and /or
            treatment team
            W. No possession of internet accessing devices

      5. The use of the GPS monitor and ERC program are necessary
      in an attempt to prevent removal from the home.

      6. If [Appellant] tests positive for any illegal substances in two
      weeks, he shall immediately be detained by the Probation
      Officer.

Order, 11/21/2013, at 1-2.

      On December 4, 2013, Appellant was detained by his probation officer

for violating the conditions of the November 15, 2013 agreement.

Specifically, it was alleged that Appellant had tested positive for marijuana,

had violated the GPS program by having another juvenile in his car, and had

harassed his rape victim’s family by pointing, laughing, and making faces at

them as they drove by.       On December 6, 2013, following a hearing, the


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J-A33034-15


juvenile master found that Appellant was in violation of the GPS program

and continued his detention. On December 11, 2013, as a result of the

master’s finding and upon agreement of the parties, the juvenile court once

again deferred disposition of petition 130576 but ordered Appellant to

receive inpatient drug and alcohol treatment at the Caron Foundation.

     On January 17, 2014, following Appellant’s release from Caron, the

juvenile court held a detention hearing. At this hearing the juvenile court

heard testimony regarding a status update posted by Appellant to his public

social media account on the morning of the hearing which read “I’m back

bitches.” N.T., 1/17/2014, at 5. This status update was seen by the victim.

As a result, the Commonwealth recommended that disposition be entered

against Appellant. Id. at 6.    The juvenile court declined to accept the

Commonwealth’s recommendation, choosing instead to “defer disposition”

on petition 130576 and to renew Appellant’s participation in the GPS

program. Id. at 48-53.

     On February 27, 2014, following a disposition hearing held that day,6

the juvenile court released Appellant from the GPS program and placed him

on probation. The rape charge remained a finding of fact without


6
  At this hearing, juvenile probation reported that while Appellant had been
actively participating in both the GPS program and an intensive outpatient
rehabilitation program, he had a number of “nuisance violations,” such as
accessing the Internet without permission or supervision and unexcused
school absences. N.T., 2/27/2014, at 3-13. Due to these continuing
violations, the Commonwealth requested the court consider a harsher
penalty than probation. Id. 4-5.


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J-A33034-15


adjudication; however, the court cautioned Appellant that “if you keep

having these so-called nuisance issues, eventually they are going to add up

to a material breach of the supervision of the [court] and you are going to

be looking at having that rape finding of fact converted to an adjudication

and all that that implies, including the SORNA registration.” N.T., 2/27/2014,

at 27-28.

      On March 28, 2014, Appellant was again detained by his probation

officer for violations of his conditions of supervision. Specifically, Appellant

was late to his sex offender treatment group, was observed accessing social

media without supervision or permission, was observed sending text

messages in school, and was in possession of two cell phones, including one

with text message capability and access to the Internet. N.T., 3/31/2014, at

1-6. On March 31, 2014, following a hearing, the juvenile master found

Appellant in violation of probation and continued his detention. Once more,

Appellant was warned about the consequences further violations would have

on his rape finding of fact. Id. at 14.

      On April 8, 2014, Appellant was released and placed back on the GPS

program. On April 14, 2014, Appellant was detained for a third time due to

another violation of the conditions of supervision. A hearing was held on

April 17, 2014, before the Honorable Ann Marie Wheatcraft. After hearing

the allegations made at the master’s hearing, Judge Wheatcraft found

Appellant   in   violation   of   the   GPS   program.   In   response   to   the



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J-A33034-15


Commonwealth’s request to adjudicate Appellant delinquent on the charge of

rape, Judge    Wheatcraft deferred that decision to         Judge   Hall. N.T.,

4/17/2014, at 38.

      On May 2, 2014, a disposition hearing was held before Judge Hall. At

this hearing, the court determined that Appellant was in need of treatment,

supervision, and rehabilitation under the Juvenile Act. Thus, the court

adjudicated him delinquent on the rape charge and placed him in the Youth

Services Agency (YSA) ACT camp residential program.         N.T., 5/2/2014, at

19-22.

      On May 6, 2014, Appellant filed timely post-dispositional motions. Both

Appellant and the Commonwealth submitted briefs. A review hearing and

oral argument were held on March 6, 2015.7 On March 11, 2015, the

juvenile court issued an order denying Appellant’s motions. This appeal


7
  The record indicates that the juvenile court took no action on Appellant’s
post-dispositional motions for a number of months, in clear violation of
Pa.R.J.C.P. 620(D) (requiring the court to decide post-dispositional motions
“as soon as possible but within 30 days of the filing of the motion.”). Thus,
Appellant’s motions should have been denied by operation of law and an
order entered by the clerk of courts pursuant to Pa.R.J.C.P. 620(D)(3).
Given these circumstances, we find Appellant’s delay in filing an appeal
excusable due to a breakdown in the court’s operations. We further note,
Appellant’s appeal, which was filed within 30 days of the trial court’s denial
of his post-dispositional motions, was timely filed. See Pa.R.J.C.P. 620(B),
Comment (“When a party files a timely post-dispositional motion, the 30-day
period for the juvenile’s direct appeal on all matters in that case is triggered
by the judge’s decision on the post-dispositional motion, the denial of the
motion by operation of law, or the withdrawal of the post-dispositional
motion. The appeal period runs from the entry of the order.”) Accordingly,
we decline to quash the instant appeal. See generally Criss v. Wise, 781
A.2d 1156 (Pa. 2001).


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J-A33034-15


followed.   Both Appellant and the juvenile court have complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues for our review, which we have

reordered for ease of disposition.

      [I.] Whether the Pennsylvania Rules of Juvenile Procedure
      authorize a second adjudication of delinquency of a juvenile for
      the same criminal conduct arising from the same criminal
      incident in a probation violation disposition hearing?

      [II.] Whether the [juvenile] court did not advise [Appellant] at
      the time of his admission to the charge of sexual assault, with a
      finding of fact on rape, how and under what circumstances he
      could be subsequently adjudicated delinquent by the court on
      the charge of rape in violation of [Appellant’s] Fourteenth
      Amendment due process rights?

      [III.] Whether the juvenile court abused its discretion in
      adjudicating [Appellant] delinquent on the charge of rape at his
      probation violation disposition hearing arising from his earlier
      sexual assault adjudication, based solely on [Appellant’s]
      technical violations of probation supervision which did not
      involve any sexual misconduct or new criminal conduct?

      [IV.] Whether the juvenile court’s adjudication of delinquency of
      [Appellant] on the charge of rape at a probation violation
      disposition hearing violated [Appellant’s] Fourteenth amendment
      double jeopardy rights where the court had previously
      adjudicated Appellant delinquent on the charge of sexual assault
      at a prior adjudication hearing, and both adjudications of
      delinquency arose from the same criminal conduct, where there
      was no knowing, intelligent, and voluntary waiver of
      [Appellant’s] double jeopardy rights?

Appellant’s Brief at 4-5 (unnecessary capitalization and suggested answers

omitted).

      We begin by noting the relevant standard of review for delinquency

proceedings. “The Juvenile Act grants broad discretion to the court when


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J-A33034-15


determining an appropriate disposition. We will not disturb a disposition

absent a manifest abuse of discretion.” In re J.G., 45 A.3d 1118, 1120 (Pa.

Super 2012) (citations and quotations omitted).

     It is well-settled that

           [a] petition alleging that a child is delinquent must be
     disposed of in accordance with the Juvenile Act. Dispositions
     which are not set forth in the Act are beyond the power of
     the juvenile court.

                  In enacting the Juvenile Act, the Legislature
           set forth a comprehensive scheme for the treatment
           of juveniles who commit offenses which would
           constitute crimes if committed by adults. The
           purposes and procedures of the juvenile system
           differ significantly from those of the adult criminal
           system…. [T]he purpose of juvenile proceedings is to
           seek “treatment, reformation and rehabilitation of
           the youthful offender, not to punish.” A proceeding
           may be commenced in the juvenile system by the
           filing of a petition alleging that the juvenile is
           delinquent. Upon the filing of such a petition, the
           court must hold an adjudicatory hearing to hear
           evidence on the petition and following the completion
           of the hearing, the court is required to make and file
           its findings as to whether the acts ascribed to the
           child were committed by him. If the court finds that
           the allegations of delinquency have not been
           established, it must dismiss the petition and order
           the child discharged from detention. On the other
           hand, if the court finds proof beyond a reasonable
           doubt that the child committed the acts, it must
           enter such a finding on the record and proceed to
           hear evidence of whether the child is in need of
           treatment, supervision, or rehabilitation. Evidence of
           the commission of a felony is sufficient to sustain a
           finding that a child is in need of treatment,
           supervision or rehabilitation.

                 The legislature provided only one alternative to
           the required disposition scheme described above, the


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J-A33034-15


            consent decree. When the Juvenile Act originally was
            enacted, the legislature specified that after the filing
            of a petition alleging delinquency but before the
            entry of an adjudicatory order, the court could
            suspend the proceedings and continue the child
            under supervision subject to conditions negotiated
            with the probation services. Under such an order,
            known as a consent decree, a child was discharged if
            he fulfilled the terms and conditions of the decree.

Commonwealth v. S.M., 769 A.2d 542, 544 (Pa. Super. 2001) (emphasis

added; citations omitted).

      Although the agreement entered into in this case bears similarities to a

consent decree, it is clear from the record that Appellant tendered an

admission, pursuant to Pa.R.J.C.P. 407, on November 15, 2013. Under the

Rules, following acceptance of a juvenile admission, the juvenile court shall

“enter a finding by specifying which, if any, offenses, including grading and

counts, alleged in the petition were committed by the juvenile.” Pa.R.J.C.P.

408. Thereafter, the juvenile court must determine “if the juvenile is in need

of treatment, supervision, or rehabilitation.” Pa.R.J.C.P. 409. If the court

determines that the juvenile is in need of treatment, the court “shall enter

an order adjudicating the juvenile delinquent and proceed in determining a

proper disposition.” Id. The Juvenile Act gives wide latitude to the juvenile

court in fashioning an order of disposition.    See 42 Pa.C.S. § 6352.     For

example, the court may place the child “on probation under supervision of

the probation officer of the court … under conditions and limitations the

court prescribes,” may commit the child to an institution or other facility for



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J-A33034-15


delinquent children, or may order payment of fines, costs, fees and

restitution. Id.

        We note at the outset that neither the Rules nor the Juvenile Act

permits the juvenile court to make a finding of fact with respect to any

charges enumerated in a delinquency petition. Further, while we recognize

that the court may, upon agreement of the parties, extend the timeframe for

adjudicating the juvenile delinquent, Pa.R.J.C.P. 409(C), and may, where

necessary, continue the juvenile dispositional hearing, Pa.R.J.C.P. 510(B),

only in the case of a consent decree may the court “suspend the proceedings

and continue the juvenile under supervision in the juvenile’s home, under

terms and conditions negotiated with the juvenile probation office.”

Pa.R.J.C.P. 370.

        Although the parties herein consented to the adjudication and finding-

of-fact with deferred disposition scheme at the November 15, 2013 hearing,

such an agreement is not permitted under the Rules and is, therefore,

invalid. See S.M., 769 A.2d at 544. Therefore, we hold that the juvenile

court    committed   a   manifest     abuse     of   discretion   by   accepting   and

implementing the instant agreement. Accordingly, we must vacate both the

May 2, 2014, and November 21, 2013, orders of court.8

        Orders vacated. Case remanded for proceedings consistent with this

opinion. Jurisdiction relinquished.

8
  Based upon our resolution, we need not address Appellant’s remaining
questions.


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J-A33034-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2016




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