Opinion
June 12, 1969.
September 11, 1969.
Criminal Law — Juvenile Court — Practice — Due process — Commitment based upon "violation of parole" arising from prior commitments — Absence of transcript of prior proceedings — Failure to conduct evidentiary hearing to ascertain manner in which proceedings were held — Gault.
Appellant, a sixteen year old boy, was committed by the Juvenile Court to the State Correctional Institution at Camp Hill. The basis for this commitment, as stated by the court, was for "violation of parole", arising from prior commitments pursuant to the Juvenile Court Act. The lower court did not conduct an evidentiary hearing to ascertain the manner in which the prior commitment proceedings were held. No transcript of these prior proceedings was available to the appellate court.
It was Held that, in light of the silent record, it was impossible to determine whether appellant's prior commitments were proper, either (1) under the standard principles of fairness applied prior to Gault, or (2) under the standards enunciated in Gault, if Gault is to be applied retroactively. The case was remanded to the court below so that an evidentiary hearing could be held and the determination be made.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 715, Oct. T., 1969, from order of Court of Common Pleas of Lancaster County, July T., 1965, No. 8, in re appeal of Alfred Bethea. Case remanded to lower court for evidentiary hearing.
Proceedings upon petition for revocation of parole. Before WISSLER, P.J.
Order entered finding defendant in violation of parole and imposing sentence. Defendant appealed.
Lois G. Forer, with her Daniel H. Shertzer, for appellant. Henry J. Rutherford, Assistant District Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., would affirm on the opinion of President Judge WISSLER.
Argued June 12, 1969.
Appellant, a sixteen year old boy, was committed in 1968 by the Juvenile Court of Lancaster County to the State Correctional Institution at Camp Hill, a maximum security prison for adjudged delinquents and youthful criminal offenders. This commitment for an indefinite term may extend for five years until appellant reaches age twenty-one at which time the Juvenile Court will lose jurisdiction over him. See Commonwealth v. Williams, 432 Pa. 44, 246 A.2d 356 (1968).
The basis for this commitment, as stated by the Juvenile Court is for "violation of parole" arising from prior commitments pursuant to the Juvenile Court Act. The Juvenile Court did not make a finding of delinquency in the instant hearing. Rather, it found only that appellant had violated his "parole" status which arose from prior commitment proceedings.
In this appeal, therefore, appellant attacks his prior commitments on the basis that he was denied due process of law.
The nature of those commitments have been described by the lower court as follows:
"Petitioner's first appearance in Juvenile Court was on October 5, 1965 on the charge of larceny of money and after hearing he was placed on probation in the custody of his parents. . . .
"On September 8, 1966 petitioner was again heard in Juvenile Court on the charge of an attempt to assault and robbery and after a hearing thereon he was committed to the Glen Mills School for Boys. On October 14, 1968 he was released from the Glen Mills School on parole."
No transcript of these proceedings is available to us, nor has the lower court conducted an evidentiary hearing to ascertain the manner in which such proceedings were held.
In light of this silent record, it is impossible to determine whether appellant's prior commitments were proper, either (1) under the standard principle of fairness applied prior to In re: Gault, 387 U.S. 1 (1967) or (2) under the standards enunciated in Gault if Gault is to be applied retroactively.
Thus, although the lower court has stated that "it must be conceded that not all of the rules of the Gault case were followed in these two original proceedings," we do not deem it advisable to explicitly determine whether Gault is to be applied retroactively. Even if Gault is not retroactive, appellant's original commitment may under pre- Gault standards have been illegal.
See Jackson Appeal, 214 Pa. Super. 156, 251 A.2d 711 (1969), wherein we noted that in pre- Gault cases, basic findings of the Juvenile Court must be supported by evidence and that the record must be legally and factually adequate to sustain the findings of fact and order of commitment.
This case, therefore, is remanded to the lower court so that an evidentiary hearing can be held and the determination be made. Pending such determination, appellant is to be released from Camp Hill and placed in the custody of his parents.
We need not reach the other substantial questions raised by appellant which include whether his commitment to Camp Hill as a "parole violator" is authorized by the Juvenile Court Act and whether such commitment denies him equal protection of the law.
WRIGHT, P.J., would affirm on the opinion of President Judge WISSLER.