J-S40017-18
2018 PA Super 264
IN RE: H.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.R., A MINOR :
:
:
:
:
: No. 199 EDA 2018
Appeal from the Order Entered January 4, 2018
in the Court of Common Pleas of Northampton County
Civil Division at No.: C-48-CV-2017-10986
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
OPINION BY PLATT, J.: FILED SEPTEMBER 21, 2018
Appellant, H.R., appeals from the trial court’s January 4, 2018 order
denying his motion to dismiss petition for involuntary treatment, granting the
petition, and committing him for mental health treatment at Torrance State
Hospital for a period of one year. We affirm.
The trial court aptly set forth the background of this case, as follows:
[Appellant], the subject of the instant petition, was born on
February 27, 1997. On September 20, 2010, when he was
thirteen [] years of age, [he] was adjudicated delinquent[a] for
indecent assault of a complainant less than thirteen years of age.
On disposition pursuant to 42 Pa.C.S.A. § 6352, [Appellant] was
placed on official probation and ordered to undergo inpatient
treatment at a sexual offender residential treatment facility. He
remains in a residential treatment placement to date.
The Juvenile Court system has jurisdiction
[a]
over delinquent children until they are twenty-one []
years of age. [See] 42 Pa.C.S.A. § 6302.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40017-18
[Appellant] turned twenty [] years of age on February 27,
2017. Accordingly, he was assessed by the Sexual Offender’s
Assessment Board pursuant to 42 Pa.C.S.A. § 6358(a).
Thereafter, the court conducted a dispositional review hearing in
accordance with 42 Pa.C.S.A. § 6358(e), pursuant to which the
court found that a prima facie case had been made establishing
[Appellant]’s need for ongoing treatment at a sexual offender
residential treatment facility.
On December 7, 2017, the Northampton County solicitor’s
designee filed a petition for involuntary treatment under 42
Pa.C.S.A. § 6403 (“Act 21”). [Appellant]’s appointed counsel
responded to the petition with the filing of a motion to dismiss the
same on December 12, 2017[.] . . . A hearing . . . commenced on
Tuesday, December 19, 2017, and the record was closed on
Tuesday, January 2, 2018. . . .
(Trial Court Opinion, 1/04/18, at 1-3) (record citations, unnecessary
capitalization, and some footnotes omitted).
On January 4, 2018, the trial court denied Appellant’s motion to dismiss,
granted the Northampton County solicitor’s petition for involuntary treatment,
and involuntarily committed Appellant for one year of mental health
treatment. Appellant filed a notice of appeal on January 8, 2018. On January
11, 2018, Appellant was placed on the Pennsylvania State Police’s sex offender
registry as a sexually violent delinquent child (SVDC). On January 22, 2018,
Appellant filed a motion to be removed from the sex offender registry based
on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138
S. Ct. 925 (2018), and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017), which the trial court granted on February 5, 2018, removing him from
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the registry.1 Appellant filed a timely concise statement of errors complained
of on appeal on February 9, 2018. See Pa.R.A.P. 1925(b). The court filed an
opinion on February 12, 2018, in which it relied on its January 4, 2018 opinion.
See Pa.R.A.P. 1925(a).
Appellant raises one question for this Court’s review: “Is Act 21
punitive, such that its retroactive application to [Appellant] and its mechanism
for determining whether an individual is a sexually violent delinquent child are
unconstitutional under [Muniz] and [Butler]?” (Appellant’s Brief, at 5).
Our standard of review of this matter is well-settled:
A challenge to the constitutionality of a statute presents this
Court with a question of law; thus, our scope of review is plenary.
This review is guided by the following principles:
A statute will be found unconstitutional only if it
clearly, palpably and plainly violates constitutional
rights. Under well-settled principles of law, there is a
strong presumption that legislative enactments do not
violate the constitution. Further, there is a heavy
burden of persuasion upon one who questions the
constitutionality of an Act.
We are mindful that, when interpreting a statute, courts
must look to the statute itself and give plain meaning to the words
contained therein. See 1 Pa.C.S.A. § 1903.
In re S.A., 925 A.2d 838, 841-42 (Pa. Super. 2007), appeal denied, 952 A.2d
678 (Pa. 2008) (case citations omitted).
Act 21 provides, in pertinent part:
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1 The trial court found that it retained jurisdiction to issue its order to preserve
that status quo that existed on January 4, 2018. See Pa.R.A.P. 1701(b)(1).
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This chapter establishes rights and procedures for the civil
commitment of sexually violent delinquent children, who, due to
a mental abnormality or personality disorder, have serious
difficulty in controlling sexually violent behavior and thereby pose
a danger to the public and further provides for additional periods
of commitment for involuntary treatment for said persons.
42 Pa.C.S.A. § 6401.
Upon a finding by clear and convincing evidence that the person
has a mental abnormality or personality disorder which results in
serious difficulty in controlling sexually violent behavior that
makes the person likely to engage in an act of sexual violence, an
order shall be entered directing the immediate commitment of the
person for involuntary inpatient treatment to a facility designated
by the department. . . .
42 Pa.C.S.A. § 6403(d).
Appellant first argues that Act 21 is punitive, and that, “therefore, the
mechanism set forth in Act 21 for determining whether an individual should
be subject to court-ordered involuntary treatment is unconstitutional[.]”
(Appellant’s Brief, at 14). We disagree.
It is well-settled that:
[I]n ascertaining whether legislation should be deemed
unconstitutionally punitive, it first must be determined whether
the legislative intent was to punish. If a determination is made
that the intent was non-punitive, then the second level of inquiry
is to evaluate the purpose and effect of the legislation to assess
whether the statutory scheme is nonetheless either in purpose or
effect as to negate the legislature’s non-punitive intent.
This second step encompasses an analysis of the following
factors:
(1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has historically
been regarded as punishment; (3) whether it comes
into play only on finding of scienter; (4) whether its
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operation will promote the traditional aims of
punishment—retribution and deterrence; (5) whether
behavior to which it applies is already a crime; (6)
whether an alternative purpose to which it may
rationally be connected is assignable for it; and (7)
whether it appears excessive in relation to an
alternative purpose.
In re S.A., supra at 843 (citations and quotation marks omitted); see also
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (setting forth
seven factors for determining if statute has punitive effect).
Here, the trial court aptly explained:
Under Act 21, the only consequence of a judicial
determination that a young person has a mental abnormality or
personality disorder that makes him or her likely to engage in
predatory sexually violent offenses is court-ordered treatment. . .
. [T]he purpose and function of Act 21 is to “set[] forth a
comprehensive scheme for treating sexually violent juveniles
before they ‘age out’ of the juvenile system” by way of a civil
commitment process. In re K.A.P., 916 A.2d 1152, 1156 (Pa.
Super. 2007), aff’d sub nom. In re K.A.P., Jr., 943 A.2d 262 (Pa.
2008).
* * *
As stated by [this Court] in S.A., “the General Assembly’s
intent in promulgating Act 21 was not to punish sexually violent
delinquent children, but rather, to establish civil commitment
procedures designed to provide necessary treatment to such
children and to protect the public from danger.” In re S.A.,
[supra at] 843 []. Further, although the civil procedure set forth
in Act 21 leads to the designation of an individual as a[n] [SVDC],
this designation arises not from a judicial finding, but merely from
a legislative definition, and . . . Act 21 does not provide for any
punitive ramifications arising from such designation.
(Trial Ct. Op., at 11).
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In S.A., having determined that Act 21 was not punitive in intent, this
Court exhaustively analyzed the seven Mendoza-Martinez factors and
concluded that they weighed in favor of a finding that Act 21 is not punitive in
effect. See In re S.A., supra, at 843. Based on the foregoing, we held that,
because “Act 21 has a non-punitive purpose and a non-punitive effect[,] . . .
it does not constitute punishment.” Id. at 845. Hence, because Act 21 is not
penal, the clear and convincing standard for determining whether a juvenile
is an SVDC is constitutional. See id. at 841-42; see also In re A.C., 991
A.2d 884, 893 (Pa. Super. 2010). Appellant’s argument does not merit relief.
Moreover, neither Muniz nor Butler changes our disposition. Both
cases considered the Sex Offender Registration and Notification Act (SORNA),
not Act 21. In Muniz, the Pennsylvania Supreme Court held that the
retroactive application of SORNA’s registration scheme to sexual offenders
who committed their crimes before the SORNA’s effective date violates
Pennsylvania’s ex post facto clause because SORNA is punitive in effect
pursuant to the Mendoza-Martinez factors where it provides for further
punishment. See Muniz, supra at 1218.
However, as stated previously, in In re S.A., this Court considered Act
21 in light of the same factors, and concluded that Act 21 is not punitive in
effect. See In re S.A., supra at 844-45. Therefore, Muniz, which found
that the ex post facto application of SORNA (a punitive statute) was
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prohibited, is distinguishable from this case that involves Act 21 (a non-
punitive statute). Hence, Appellant’s reliance on Muniz affords him no relief.
Also, Appellant’s reliance on Butler is similarly misplaced because it
again requires reliance on a presumption that the statute under review is
punitive. As observed by the trial court:
In Butler, [this] Court held that “a factual finding, such as
whether a defendant has a ‘mental abnormality or personality
disorder that makes him or her likely to engage in predatory
sexually violent offenses[,]’ . . . that increases the length of
registration [under SORNA] must be found beyond a reasonable
doubt by the chosen fact-finder.” [Butler, supra at 1217].
However, this ruling was not predicated on the SVP designation
itself, but the punitive consequences arising under SORNA
pursuant to the designation. Thus, while [Appellant] urges that
Butler’s preclusion also applies to Act 21, a careful reading of the
decision leads to the opposite conclusion.
Under Act 21, the only consequence of a judicial
determination that a young person has a mental abnormality or
personality disorder that makes him or her likely to engage in
predatory sexually violent offenses is court-ordered treatment. . .
.
By contrast, SORNA imposes increased criminal penalties[.] . . .
(Trial Ct. Op., at 10-11) (emphasis in original).
Again, we agree with the sound reasoning of the trial court. Butler was
decided based on the punitive effect of SORNA. Because Act 21 is not penal
in intent or effect, Butler does not apply to render Act 21’s clear and
convincing standard unconstitutional. See In re S.A., supra at 841-42.
Therefore, Appellant’s claim that Act 21 is unconstitutional based on Butler
lacks merit.
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Appellant next argues that the 2011 amendments to Act 21 are punitive
because they extend an individual’s treatment for one year, and that, because
the provisions were added after he was adjudicated delinquent, their
retroactive application to him violates the ex post facto clause of the United
States and Pennsylvania Constitutions. (See Appellant’s Brief, at 36). We
disagree.
We note that “[t]he Ex Post Facto Clause speaks only to retroactive
punishment. Thus, the issue becomes whether the civil disability imposed on
appellant . . . constitutes punishment.” Lehman v. Pennsylvania State
Police, 839 A.2d 265, 270 (Pa. 2003) (citation omitted). The amendments
to Act 21 provide, in pertinent part:
If at any time the director or a designee of the facility to
which the person was committed concludes the person no longer
has serious difficulty in controlling sexually violent behavior in an
inpatient setting, the director shall petition the court for a hearing
[for consideration of an out-patient treatment plan]. . . .
42 Pa.C.S.A. § 6404(c)(1). At the hearing, “[t]he court may approve or
disapprove an outpatient treatment plan.” 42 Pa.C.S.A. § 6404.1. “If a court
has ordered the transfer of the person to involuntary outpatient treatment
pursuant to section 6404.1 [], the court may, in its discretion, specify the
terms and conditions of the outpatient commitment[.]” 42 Pa.C.S.A. §
6404.2(a).
Instantly, the trial court observed:
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[T]hese amendments merely require another level of treatment
[and] they remain geared toward improving the individual’s
mental condition and not toward retribution. . . .
Time and again, the Courts have concluded that where, as
here, the imposition of a civil disability, restraint, or requirement
is for some other purpose, such disability, restraint, or
requirement is not punitive. See Lehman, supra at 270 (Law
prohibiting individual from possessing firearm based on his
conviction for an offense that occurred prior to the enactment of
the law was not punitive and did not violate ex post facto
protections); In re J.Y., 754 A.2d 5, 11 (Pa. Super. 2000), appeal
denied sub nom. J.Y. v. C.L.Y., 764 A.2d 1070 (Pa. 2000) (Noting
that “[t]he purpose underlying [juvenile dependency] proceedings
is not punishment of the parents or restrictions of their liberty.
Rather the purpose is to determine the best possible plan for the
children[,]” and holding that a court may approve a family service
plan directing a parent to take GED classes or participate in mental
health treatment, and consider the parent’s failure to comply in
making dependency decisions.).
Here, §[]6404.2 enables the [c]ourt, but does not require it
to “specify the terms and conditions” of an outpatient commitment
under Act 21, it imposes a monthly counseling requirement equal
to the length of an individual’s SORNA registration, and it
mandates that the [c]ourt shall return the individual to inpatient
treatment without a hearing upon notification that the individual
has violated his treatment plan, or that he “is having serious
difficulty controlling sexually violent behavior in an outpatient
setting due to a mental abnormality or personality disorder that
makes the person likely to engage in an act of violence.” 42
Pa.C.S.A. § 6404.2(a), (d), (e). While these provisions impose
requirements and limits on an individual’s liberty, they exist for
ensuring that the individual receives the treatment and support
necessary to effectuate the improvement of his mental health.
(Trial Ct. Op., at 16-17) (one case citation and emphasis omitted; some
citation formatting provided).
We agree with the foregoing analysis. The purpose of Act 21 is to
provide for the treatment of individuals who “have serious difficulty in
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controlling sexually violent behavior and thereby pose a danger to the public.”
42 Pa.C.S.A. § 6401. The out-patient provisions merely aid the court in
ensuring that a juvenile receives such treatment, with certain requirements
necessary to achieve that goal. Therefore, they do not render Act 21 punitive,
and their retroactive application does not violate the ex post facto clause of
the Pennsylvania and United States Constitutions, because they are not
punishment. See Lehman, supra at 270; In re S.A., supra at 841-42.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/18
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