Section 622. Motion for Nunc Pro Tunc Relief

A. Timing. A motion for nunc pro tunc relief shall be filed by the juvenile with the clerk of courts in the court in which the alleged error occurred as soon as possible but no later than sixty days after the date that the error was made known.

B. Counsel. If alleged ineffective assistance of counsel is the basis for the motion, counsel is to withdraw pursuant to Rule 150(C) and the judge shall assign new counsel.

C. Contents of Motion. A motion for relief under this rule shall include:

1) the name of the juvenile and case docket number;

2) the location of the juvenile;

3) the delinquent act(s) for which the juvenile was adjudicated delinquent;

4) if ineffective assistance of counsel is alleged, the name of counsel who allegedly rendered ineffective assistance;

5) the relief requested;

6) a statement that one of the following requirements for the relief has been met:

a) there is a need for correction of an error to accurately reflect the court’s findings; or

b) allegations that:

1) the juvenile has been adjudicated delinquent and is under the court’s supervision;

2) there is a legitimate basis for the relief requested; and

3) there are sufficient facts upon which to conclude the delay was justified and should be overlooked in the interest of justice;

7) the facts supporting the grounds for relief and sufficient facts to support any delay in filing the motion for relief that:

a) appear in the record, and the place in the record where they appear; and

b) do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;

8) whether the grounds for the relief requested were raised before, and if so, at what stage of the proceedings;

9) a verification that the facts set forth in the motion are true and correct to the best of the movant’s personal knowledge or information and belief and that any false statements are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;

10) if applicable, any request for an evidentiary hearing, including:

a) a signed certification by counsel as to each intended witness, stating the:

i) witness’s name;

ii) witness’s address;

iii) witness’s date of birth; and

iv) the substance of the witness’s testimony; and

b) any documents material to the witness’s testimony, attached to the motion; and

11) if applicable, any request for discovery.

D. Answer.

1) The Commonwealth may answer the motion. If the Commonwealth chooses to respond to the motion, such response shall:

a) be submitted within ten days of receipt of the motion; and

b) include a verification that the facts set forth in the answer are true and correct to the best of the attorney’s personal knowledge or information and belief and that any false statements are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;

2) The court may order the Commonwealth to file an answer within a timeframe established by the court.

Comment

A motion for relief under this rule is to be filed with the clerk of courts in the court in which the alleged error occurred. Rule 120 defines ‘‘court’’ as the Court of Common Pleas. See Rule 120. Because the court has continual supervision over a juvenile until court supervision is terminated pursuant to Rules 631 or 632, the juvenile court is the appropriate forum for such a motion.

This process allows the juvenile court to accept late motions when there is a sufficient basis for the delay. See paragraph (C)(6) for requirement of the grounds for the motion. Because the court is providing relief nunc pro tunc, the requirements of 42 Pa.C.S. § 5505 do not apply. See City of Philadelphia Police Dep’t v. Civil Service Comm’n of City of Philadelphia, 702 A.2d 878 (Pa. Commw. Ct. 1997) (absent specific rule, only technical errors may be corrected after 30-day period); see also Justice v. Justice, 417 Pa. Super. 581, 612 A.2d 1354 (1992) (after a 30-day period the order can be opened or vacated if there is fraud or some other circumstance so grave or compelling as to constitute extraordinary cause which justifies intervention by the court); Com., Dep’t of Transp., Bureau of Driver Licensing v. Duncan, 144 Pa. Commw. 261, 601 A.2d 456 (1991) (after a 30-day period order can be opened or vacated upon extraordinary cause).

Pursuant to paragraph (A), the motion is to be filed as soon as possible but no later than sixty days after the date the error was made known or discovered. It is best practice to file the motion within thirty days.

Pursuant to paragraph (B), counsel is to remain in the case unless ineffective assistance of counsel is alleged. See Rule 150(B). If ineffective assistance of counsel is alleged, counsel is to withdraw and the court is to appoint new counsel. See Rule 150(C).

Pursuant to paragraphs (C)(6) & (7), the juvenile is to aver the basis for relief and allege facts to support the grounds for the relief upon which the court may conclude the delay was justified and should be overlooked in the interest of justice.

Second or subsequent motions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988)). This standard is met if the juvenile can demonstrate either: 1) the proceedings resulting in the juvenile’s disposition were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or 2) the juvenile is innocent of the delinquent acts petitioned. See Szuchon, supra.

Official Note

Rule 622 adopted February 23, 2012, effective April 1, 2012.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 622 published with the Court’s Order at 42 Pa.B. 1214 (March 10, 2012).

The provisions of this Rule 622 adopted February 23, 2012, effective April 1, 2012, 42 Pa.B. 1214.