In Re JMP

863 A.2d 17
CourtSuperior Court of Pennsylvania
DecidedOctober 27, 2004
StatusPublished

This text of 863 A.2d 17 (In Re JMP) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JMP, 863 A.2d 17 (Pa. Ct. App. 2004).

Opinion

863 A.2d 17 (2004)

In the Interest of J.M.P., A Minor.
Appeal of J.M.P., A Minor.

Superior Court of Pennsylvania.

Submitted August 2, 2004.
Filed October 27, 2004.
Reargument Denied January 7, 2005.

Faye L. Miller, Public Defender, York, for appellant.

George N. Marros, Asst. Dist. Atty., York, for Commonwealth, appellee.

Before: ORIE MELVIN, McCAFFERY and TAMILIA, JJ.

OPINION BY TAMILIA, J.:

¶ 1 J.M.P., a minor, appeals from the December 15, 2003 Order of disposition entered following the adjudication of delinquency, and the December 29, 2003 Order *18 grading his receiving stolen property offense as a second-degree felony.

¶ 2 On November 26, 2003, J.M.P. was found guilty of receiving stolen property (firearm), possession of firearm by minor, persons not to possess firearms, carrying firearms without a license, and possession of a small amount of marijuana. A dispositional hearing was held on December 15, 2003, at which time J.M.P. was adjudicated delinquent and remanded to the York Shelter Center. Also at the hearing, the issue arose as to the proper gradation of his offense of receiving stolen property. The stolen property was a .22 caliber Marlin rifle that had a barrel cut down to nine and one-half inches. On December 29, 2003, the court issued an Order finding the offense was a second-degree felony. Counsel for J.M.P. filed a notice of appeal on January 21, 2004. On February 2, 2004, the court issued an Opinion pursuant to Rule 1925(a) in which it found it had erred in the gradation of the offense and that J.M.P.'s offense of receiving stolen property should have been graded as a first-degree misdemeanor. Inexplicably, on February 5, 2004, even though the court had recognized its gradation error, appellant's counsel filed a praecipe to discontinue the appeal. On February 9, 2004, this Court ordered that the appeal be withdrawn without prejudice. On February 19, 2004, the Commonwealth filed a motion to enforce the juvenile court's December 29, 2003 Order. Counsel for J.M.P. then filed a petition for reinstatement of appellate rights, asserting that she had filed the praecipe to discontinue appeal in error. The juvenile court granted appellant permission to file an appeal nunc pro tunc on March 12, 2004. Appellant's notice of appeal was filed on April 14, 2004. Thereafter, on May 4, 2004, the juvenile court filed an Opinion pursuant to Pa.R.A.P.1925(a), in which it concluded it had erred and that appellant's receiving stolen property offense should have been graded as a first-degree misdemeanor.

¶ 3 Initially, it is necessary for us to consider the timeliness of this appeal. A notice of appeal must be filed within thirty days after entry of the Order being appealed, see Pa.R.A.P. 105(b), 903(a); Commonwealth v. Moir, 766 A.2d 1253 (Pa.Super.2000). This includes an Order reinstating appellate rights nunc pro tunc. Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.Super.2004). As the notice of appeal here was filed beyond the thirty-day period, this Court directed appellant to show cause why the appeal should not be quashed as untimely. Counsel filed a letter explaining she had mistakenly assumed that once the juvenile court granted leave to reinstate the appeal nunc pro tunc, the appeal would be reinstated without further action. She further explained that on April 14, 2004, (two days after the 30-day appeal period had ended) the York County Clerk of Court's Office advised counsel that a notice of appeal was required and had not been filed. Counsel filed the appeal that day. Counsel implores that this Court not penalize the juvenile for the error for which she takes full responsibility.

¶ 4 In conducting our review, we are mindful that the implications of felony convictions and adjudications of delinquency are not the same.

[T]his Court has expressly recognized that juvenile proceedings are not criminal proceedings. In re R.A., 761 A.2d 1220, 1223 (Pa.Super.2000). Under the Juvenile Act,[1] juveniles are not charged with crimes; they are charged with committing delinquent acts. They do not have a trial; they have an adjudicatory *19 hearing. If the charges are substantiated, they are not convicted; they are adjudicated delinquent. Indeed, the Juvenile Act expressly provides that an adjudication under its provisions is not a conviction of a crime. 42 Pa.C.S.A. § 6354(a).

In re L.A., 853 A.2d 388, 393 (Pa.Super.2004). Although appellant would not have a "felony conviction" on his record as a result of this adjudication, and, generally, adjudications of delinquency are inadmissible in subsequent court proceedings, see 42 Pa.C.S.A. § 6354(b), there are significant implications that may attach when a juvenile is found guilty of a felony. Section 303.6(a)(2) of the Pennsylvania Sentencing Guidelines[2] provides that for sentencing purposes, a prior juvenile adjudication is counted in the prior record score where, as here, "there was an express finding by the juvenile court that the adjudication was for a felony." See also 204 Pa.Code §§ 303.2, 303.4.[3] An adjudication of delinquency involving an express finding that the offense was a felony, moreover, does not lapse. See § 303.6(c)(1) (providing that all other adjudications not identified in 303.6(a) lapse and are not counted in the prior record score if the offender was twenty-eight years old or older at the time the offense for which he is being sentenced was committed). Significantly also, graded as a second-degree felony, the offense would add two points to his prior record score.[4]Id., § 303.7.

¶ 5 Although the juvenile court made an express finding that J.M.P.'s receiving stolen property offense was a second-degree felony, it later filed an Opinion concluding it had erred in doing so and that the offense should have been graded as a first-degree misdemeanor. See Trial Court Opinions, Uhler, J., 2/2/04 and 5/4/04. Were we to quash this appeal, the remedies available to appellant to correct the court's error are limited. See In the Interest of B.S., 831 A.2d 151, 154 (Pa.Super.2003) (citation omitted) (reiterating that the Post Conviction Relief Act (PCRA)[5] does not apply to juveniles).

¶ 6 We are faced here with a procedural quagmire. After the juvenile court had recognized its error, J.M.P.'s counsel filed a praecipe to withdraw the initial appeal. It was only after this Court granted the praecipe to discontinue the appeal, did counsel determine she had erred in filing the praecipe. Next, counsel filed a motion to reinstate J.M.P.'s appellate rights nunc pro tunc. When that motion was granted, she then failed to file an appeal within thirty days of that Order. The question of timeliness of an appeal is jurisdictional in nature. Moir, supra at 1254 (citation omitted). Failure to file a timely notice of appeal divests this Court of jurisdiction. Commonwealth v. Edrington, 780 A.2d 721, 725 (Pa.Super.2001), citing Moir.

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In the Interest of J.M.P.
863 A.2d 17 (Superior Court of Pennsylvania, 2004)

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Bluebook (online)
863 A.2d 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jmp-pasuperct-2004.