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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.M., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 408 EDA 2019

                Appeal from the Order Entered January 15, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                        No(s): CP-51-JV-0000322-2018


BEFORE:      BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 19, 2019

        K.M., a minor, appeals from the dispositional order entered by the Court

of Common Pleas of Philadelphia, which purported to adjudicate K.M.

delinquent, but also dismissed the delinquency petition after stating K.M. was

“not in need of treatment, supervision or rehabilitation.” Order, 1/15/19, at 1.

We vacate the dispositional order and reverse the adjudication of delinquency.

        On February 20, 2018, the Commonwealth filed a delinquency petition

alleging that K.M. committed the following delinquent acts: carrying a firearm

without a license (third-degree felony), carrying a firearm on the public streets

or public property of Philadelphia, and possession of a firearm by a minor.1

K.M. filed a motion to suppress the evidence obtained by police upon his


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*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 6106, 6108, and 6110.1, respectively.
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detainment. On November 19, 2018, the juvenile court heard testimony on

the suppression motion but deferred its decision to review applicable case law.

       On January 15, 2019, the juvenile court judge, the Honorable Amanda

Cooperman, held an adjudicatory hearing at which she denied K.M.’s

suppression motion and found K.M. had committed the delinquent acts alleged

in the petition.    On the same day, Judge Cooperman filed an order which

stated that K.M. was “GUILTY of all charges” and that “Juvenile is Adjudicated

Delinquent.”2 Order, 1/15/19, at 1.

       However, the order also indicated the following: “[t]he court having

found that the Juvenile is not in need of treatment, supervision or

rehabilitation, the Petition is hereby DISMISSED” and the “Juvenile is

discharged from GPS.” Order 1/15/19, at 1.

       On January 28, 2019, K.M. appealed, noting that the adjudication of

delinquency was “made concurrent with the finding that [K.M.] is ‘not in need

of treatment.’” Notice of Appeal, 1/28/19, at 1. On January 30, 2019, the

juvenile court filed an order directing K.M. to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Although K.M. filed

an untimely 1925(b) statement on March 18, 2019, defense counsel filed a
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2This Court has emphasized that “[u]nder the Juvenile Act, juveniles are not
charged with crimes; they are charged with committing delinquent acts. They
do not have a trial; they have an adjudicatory hearing. If the charges are
substantiated, they are not convicted; they are adjudicated delinquent.” In
re R.A., 761 A.2d 1220, 1224 (Pa.Super. 2000) (citing 42 Pa.C.S. §§ 6302,
6303, 6341, 6352).



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motion asking the lower court to accept the untimely statement, which the

juvenile court granted on April 2, 2019.3

       In his Rule 1925(b) statement, K.M. claimed inter alia, that the juvenile

court erred by adjudicating K.M. delinquent after it found K.M. was not in need

of treatment, supervision, or rehabilitation. In contrast, the juvenile court

suggested in its subsequently filed 1925(a) opinion that the docket contained

a “clerical error” stating that it had found K.M. was not in need of treatment,

supervision or rehabilitation.        Juvenile Court Opinion, 4/2/19, at 3-4 n.1

(unpaginated opinion). The juvenile court opined that this mistake occurred

on the docket when the court computer system “automatically generated an

erroneous statement.” Id. Further, the juvenile court asserted that it made

its adjudication of delinquency “clear” at the hearing. Id.

       The juvenile court does not acknowledge or address the fact that its

signed January 15, 2019 order was internally inconsistent as it stated that

K.M. was not in need of treatment, supervision, or rehabilitation, but at the

same time, stated that K.M. was adjudicated delinquent and that the

delinquency petition was dismissed. Likewise, the parties do not address this

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3 It is well-established that the untimely filing of a court-ordered 1925(b)
statement “is per se ineffectiveness because it is without reasonable basis
designed to effectuate the client's interest and waives all issues on appeal.”
Commonwealth v. Andrews, 213 A.3d 1004, 1010 (Pa.Super. 2019)
(quoting Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa.Super.
2009)). In this case, the juvenile court did not comment on the untimely filing
and addressed the merits of K.M.’s argument. Thus, it is unnecessary to
remand for the preparation of a supplemental opinion.


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inconsistency in their briefs and do not offer any analysis on how the juvenile

court’s order should be interpreted and corrected.

      This Court has held that “[t]he question of whether a trial court has the

authority to correct an alleged sentencing error poses a pure question of law.

Accordingly, our scope of review is plenary and our standard of review is de

novo.” Commonwealth v. Kremer, 206 A.3d 543, 547–48 (Pa.Super. 2019)

(citation omitted).

      Section 5505 of the Judicial Code, which relates to the modification of

orders, provides that “a court ... may modify ... any order within 30 days after

its entry ... if no appeal from such order has been taken ....” 42 Pa.C.S.A. §

5505 (emphasis added). Generally, after an appeal is taken, the trial court

“may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).

      Nevertheless, our courts have recognized that the limits of jurisdiction

set forth in Section 5505 do not impinge on the trial court’s inherent power to

correct any patent or obvious mistakes in its orders.        Commonwealth v.

Holmes, 593 Pa. 601, 615, 933 A.2d 57, 65 (2007); In re K.R.B., 851 A.2d

914, 918 (Pa.Super. 2004) (citations omitted) (finding that “[u]nder limited

circumstances, even where the court would normally be divested of

jurisdiction, a court may have the power to correct patent and obvious

mistakes”).

      In this case, the juvenile court’s order directly conflicts with precedential

law that indicates that “under the Juvenile Act, in order to adjudicate a child

delinquent, the juvenile court must (1) determine that the juvenile has

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committed a delinquent act, and (2) determine that the juvenile requires

treatment, supervision, or rehabilitation.” Commonwealth v. M.W., 614 Pa.

633, 646, 39 A.3d 958, 966 (2012) (emphasis in original). Section 6341(b)

of the Juvenile Act provides:

      Finding of delinquency.--If the court finds on proof beyond a
      reasonable doubt that the child committed the acts by reason of
      which he is alleged to be delinquent it shall enter such finding on
      the record and shall specify the particular offenses, including the
      grading and counts thereof which the child is found to have
      committed. The court shall then proceed immediately or at a
      postponed hearing, which shall occur not later than 20 days after
      such finding if the child is in detention or not more than 60 days
      after such finding if the child is not in detention, to hear evidence
      as to whether the child is in need of treatment, supervision or
      rehabilitation, as established by a preponderance of the evidence,
      and to make and file its findings thereon. … In the absence of
      evidence to the contrary, evidence of the commission of acts
      which constitute a felony shall be sufficient to sustain a finding
      that the child is in need of treatment, supervision or rehabilitation.
      If the court finds that the child is not in need of treatment,
      supervision or rehabilitation it shall dismiss the proceeding and
      discharge the child from any detention or other restriction
      theretofore ordered.

42 Pa.C.S.A. § 6341(b).

      As such, the juvenile court’s order is internally inconsistent as it

adjudicated K.M. delinquent after it had stated that K.M. “was not in need of

treatment, supervision, or rehabilitation,” dismissed the petition, and

discharged K.M. from GPS. The key issue on appeal is whether the juvenile

court had the inherent power to correct the order by (1) changing its stated

factual finding that K.M. was not in need of treatment, supervision, or

rehabilitation or (2) reversing its adjudication of delinquency.



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     In determining whether a trial court error constitutes a patent mistake

that can be corrected by the inherent power of a trial court, our Supreme

Court has provided:

     We have set a high bar for differentiating between errors that may
     be corrected under the inherent powers of trial courts, and those
     that may not, describing correctible errors as those determined to
     be “patent and obvious mistakes.” Commonwealth v. Klein, 566
     Pa. 396, 400, 781 A.2d 1133, 1135 (2001). The term “clerical
     error” has been long used by our courts to describe an omission
     or a statement in the record or an order shown to be inconsistent
     with what in fact occurred in a case, and, thus, subject to repair.
     See, e.g., Commonwealth v. Silcox, 161 Pa. 484, 496–97, 29
     A. 105, 106 (1894) (upholding the trial court's direction to correct
     a “clerical” omission and amend the record to state that the
     defendant was present at every stage of the proceedings);
     Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560,
     561 (1961) (explaining that the sentencing order contained a
     “clerical” error subject to correction, as it did not reflect that the
     trial court specifically stated at sentencing that the sentence it
     imposed was effective on expiration of defendant's federal
     sentence); Commonwealth v. Mount, 172 Pa.Super. 258, 93
     A.2d 887, 888 (1953) (“Clerical errors or inaccuracies in docket
     entries [or orders] may be corrected by the trial court so that they
     conform to the facts.”).

     Most recently, in Commonwealth v. Holmes and its companion
     case, Commonwealth v. Whitfield, we emphasized that a trial
     court's inherent power of correction encompasses not only those
     patent and obvious errors that appear on the face of an order, but
     extends to such errors that emerge upon consideration of
     information in the contemporaneous record. [Commonwealth
     v.] Holmes, 593 Pa. [601,] 618, 933 A.2d [57,] 67 [(2007)].

                                       ***
     At the same time, we emphasized that the inherent power of trial
     courts to correct orders is a limited power because it was the
     “obviousness” of the illegal and erroneous nature of the sentences
     reflected in the trial courts' orders rather than the illegality itself
     that triggered the courts' authority. Id. at 617–18, 933 A.2d at
     66–67. In addition, we cautioned that the inherent power of


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      correction does not extend to reconsideration of a trial court's
      exercise of sentencing discretion or its judicial decisions […]. Id.

Commonwealth v. Borrin, 622 Pa. 422, 436–38, 80 A.3d 1219, 1227–28

(2013).

      Further, this Court has provided that:

      This Court's case law has addressed the situations where...the
      terms of a defendant's sentence as stated at the sentencing
      hearing conflict (or are deemed incompatible) with the terms of
      the defendant's sentence as stated in the sentencing order.

      In these circumstances, for a trial court to exercise its inherent
      authority and enter an order correcting a defendant's written
      sentence to conform with the terms of the sentencing hearing, the
      trial court's intention to impose a certain sentence must be
      obvious on the face of the sentencing transcript. ... Stated
      differently, only when a trial court's intentions are clearly and
      unambiguously declared during the sentencing hearing can there
      be a “clear clerical error” on the face of the record, and the
      [signed] sentencing order subject to later correction.

      If, on the other hand, a trial court's stated intentions during the
      sentencing hearing are ambiguous, then the terms of the sentence
      in the [signed] sentencing order control, and the trial court cannot
      correct its perceived mistake. See Commonwealth v. Isabell,
      503 Pa. 2, [12,] 467 A.2d 1287, 129[2] (1983) ( [stating:]
      “Generally, the signed sentencing order, if legal, controls over oral
      statements of the sentencing judge not incorporated into the
      signed judgment of sentence”); .... This is because the alleged
      error in the sentencing transcript is not a “clear clerical error,” but
      rather, is an ambiguity that must be resolved by reference to the
      written sentencing order.

Kremer, 206 A.3d at 548 (citation omitted).

      In this case, the lower court and the parties disagree on whether the

record shows that the juvenile court found K.M. was in need of treatment,

supervision, or rehabilitation.    In her 1925(a) opinion, Judge Cooperman

asserted that the notes of testimony from the adjudicatory hearing showed


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that she adjudicated K.M. delinquent after finding that K.M. had committed a

delinquent act and was in need of treatment, supervision, and rehabilitation.

      Despite Judge Cooperman’s claim that she intended to find that K.M.

was in need of treatment, supervision, or rehabilitation, she did not make this

express determination on the record at the adjudicatory hearing.        To the

contrary, the adjudicatory hearing transcript contains evidence that suggests

that Judge Cooperman made a factual finding that K.M. did not need

treatment, supervision, or rehabilitation and concluded that dismissal of the

petition was warranted.

      After the juvenile court stated on the record that she found that K.M had

committed the delinquent crimes alleged, she did not conduct any formal

inquiry on the record into whether K.M. was in in need of treatment,

supervision, or rehabilitation and the Commonwealth did not seek to offer any

evidence to establish this point.    Judge Cooperman noted that K.M. had

previously been adjudicated delinquent for trespass, theft, and burglary. The

juvenile court began to speak to K.M. about his progress in school and K.M.

indicated that he believed that he would not get “a good transcript” as he felt

the students at his school did not like him.      Notes of Testimony (N.T.),

1/15/19, at 19-21.

      After a short discussion off the record, Judge Cooperman expressed a

desire to ultimately discharge the case, explaining as follows:

      THE COURT: Your son has been on supervision for over a year
      and he’s done very, very well. I think from my experience of


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      looking at kids for ten years, I don’t think we have to worry about
      him.

      So, I am going to discharge the case.

      Now, when I say that, I say it with respect because I know that
      the family is on top of this in trying to make sure everything is
      better. For him, too. He’s unhappy in that school so let’s try to
      find something else for him if you can, and let’s put this all behind
      us and move on.

      The lesson learned is, when we see something on the street, no
      matter how tempting it might be, we do not pick it up.

      Do we understand that now?

      [K.M.:] Yes, ma’am.

      THE COURT: I guess he has to be adjudicated because he has
      been adjudicated before, and then the discharge.

      THE CLERK: Are you waiving anything?

      THE COURT: I’m waiving everything. Good luck, young man.

N.T. at 22-23.

      Our review of the transcript shows the juvenile court commended K.M.

for the significant progress he had made while on supervision and expressed

respect for the support that K.M. was receiving from his family. Immediately

thereafter, Judge Cooperman emphasized on two occasions that she wanted

to discharge the case and directed that K.M. be released from GPS. These

statements are consistent with its stated finding in its order that K.M. was not

in need of treatment, supervision, or rehabilitation.       See 42 Pa.C.S.A. §

6341(b) (stating “[i]f the court finds that the child is not in need of treatment,

supervision or rehabilitation it shall dismiss the proceeding and discharge the

child from any detention or other restriction theretofore ordered”).



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      However, Judge Cooperman indicated that she “guess[ed that K.M.] had

to be adjudicated because he had been adjudicated before, and then the

discharge.” N.T. at 22-23.     The mere fact that a juvenile has had a prior

adjudication of delinquency cannot by itself form the basis for a subsequent

adjudication of delinquency. Commonwealth v. M.W., 614 Pa. 633, 39 A.3d

958 (2012) (remanding for the juvenile court to determine whether M.W. was

in need of treatment, supervision, or rehabilitation, despite the fact that M.W.

had been adjudicated delinquent in a separate case and had been committed

to treatment, supervision, and rehabilitation).

      Moreover, we are not persuaded by the juvenile court’s suggestion that

she intended to find K.M. was in need of treatment, supervision, or

rehabilitation based on the following language in Section 6341(b): “[i]n the

absence of evidence to the contrary, evidence of the commission of acts which

constitute a felony shall be sufficient to sustain a finding that the child is in

need of treatment, supervision or rehabilitation.” 42 Pa.C.S.A. 6341(b).

      While the juvenile court, in hindsight, could have based a finding that

K.M. was in need of treatment, supervision, or rehabilitation on the fact that

K.M. committed a delinquent act that constitutes a third-degree felony

(possessing a firearm without a license), this realization does not authorize

the juvenile court to amend its dispositional order to change this finding of

fact after K.M. filed a notice of appeal.

      The transcript of the adjudicatory hearing contains no evidence to

support Judge Cooperman’s post-appeal assertion that she intended to

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adjudicate K.M. delinquent based on the fact that he had committed a

delinquent act that constituted a felony. Rather, the record showed that the

juvenile court intended to discharge the case based on K.M.’s progress while

on supervision and her knowledge that K.M. had a strong family support

system at home. The juvenile court indicated that it only felt compelled to

adjudicate K.M. delinquent based on the fact that he had a prior adjudication.

       As noted above, “the inherent power of correction does not extend to

reconsideration of a trial court's exercise of sentencing discretion or its judicial

decisions.” Borrin, 622 Pa. at 436–38, 80 A.3d at 1227–28 (citation omitted).

Further, “[a] court may not vacate a sentencing order merely because it later

considers a sentence too harsh or too lenient.” Holmes, 593 Pa. at 617, 933

A.2d at 67. Similarly, this Court has recognized that a sentencing transcript

that   “contains   inconsistent    inferences   and    is   open   to   competing

interpretations” is ambiguous and does not provide a basis for a trial court to

amend its written sentencing order. Kremer, 206 A.3d at 549.

       Were this Court to hold otherwise, we would permit a trial court
       to retroactively alter a defendant's sentence to conform to the
       court's “intentions” when those intentions are not clearly
       expressed on the record. As noted by our Supreme Court, this is
       problematic: “[W]e are of the opinion that such alleged
       inadvertence [concerning a trial court's unexpressed intentions
       during a sentencing hearing] cannot be tolerated as a matter of
       public policy. The possibility of abuses inherent in broad judicial
       power to increase sentences outweighs the possibility of windfalls
       to a few prisoners.” Commonwealth v. Allen, 443 Pa. 96, [104-
       05,] 277 A.2d 803, 807 (1971) (citation and internal quotation
       marks omitted). Accordingly, we cannot accept the trial judge's
       proclamation of his own intentions because those intentions were



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      only known to the trial judge himself and do not appear on the
      face of the sentencing transcript.

Id. (citation omitted).

      Accordingly, we find the juvenile court erred in adjudicating K.M.

delinquent after filing an order indicating that it found K.M. was not in need of

treatment, supervision, or rehabilitation. Therefore, we vacate the juvenile

court’s dispositional order and reverse the adjudication of delinquency.

      Dispositional order vacated.     Adjudication of delinquency reversed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/19




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