J-S74019-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.D., A MINOR,

 

APPEAL OF: B.D.

 

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 
J-S74019-14

- 2 -

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). 
J-S74019-14

- 3 -

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.