In Re: J.C., Appeal of: J.C.

J-A06029-18

2018 PA Super 335

IN RE: J.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.C. :
:
:
:
:
: No. 1391 WDA 2017

Appeal from the Order July 5, 2017
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-JV-0001886-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED DECEMBER 10, 2018

Appellant, J.C., appeals from the order that granted the

Commonwealth’s request for involuntary commitment under the Court-

Ordered Involuntary Treatment of Certain Sexually Violent Persons Statute

(“Act 21”), 42 Pa.C.S. §§ 6401-6409. Upon careful review, we vacate the

order.

The trial court summarized the extensive history of this case as

follows:

Before finding [then thirteen-year-old] J.C. delinquent, this
court first - by stipulation of the Office of Children, Youth and
Families (“CYF”) and J.C.’s guardian - found J.C. dependent on
April 9, 2010. J.C. was ordered to remain at Mel Blount Youth
Home (“MBYH”) in Washington County because: (1) he had no
home and (2) his mother was unable to care for J.C. due to her
health and his age.

While at MBYH, J.C. sexually assaulted another child and
then admitted to the assault at a hearing on April 26, 2011,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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before the Washington County Court. The Washington County
Court transferred the adjudicatory and dispositional hearings to
this court. On November 7, 2011, this court adjudicated J.C.
[delinquent] of one count of Indecent Assault,1 deferred
disposition, and detained J.C. at Shuman Center pending a
mental health evaluation. On November 21, 2011, the [c]ourt
again deferred disposition and ordered J.C. remain detained with
permission to place consistent with the mental health evaluation,
recommendation and the availability of a bed at Adelphoi Village
(which occurred on November 25, 2011). J.C. was ordered to
complete a sex offenders’ program, and a commitment review
was scheduled for April 9, 2011. Probation now shared
responsibility for J.C.’s care with CYF.2

1 18 Pa.C.S.A. § 3126(a)(7), a (M1) at Petition
T169017 case number CP-02-JV-1886-2011.

2 The written commitment order was entered on
November 29, 2011.

After J.C.’s initial secured commitment to Adelphoi
[V]illage on November 25, 2011, the court conducted eight
shared responsibility (or “dual” delinquency/dependency
permanency placement) hearings prior to May 19, 2014. At his
May 19, 2014, dual hearing, the court found that J.C. had
progressed sufficiently in the sex offender treatment program to
permit transition to Adelphoi-SAL—a supervised[,] non-secure
community, and independent-living facility. J.C. was placed at
Adelphoi-SAL on May 23, 2014. During J.C.’s placement at
Adelphoi-SAL, his mother passed away—ending any chance for
J.C. to return to his home. At the January 21, 2015 dual
hearing, J.C. displayed moderate progress and was scheduled to
graduate from high school on time. Probation and CYF’s
permanency plan for J.C. was to obtain full[-]time employment
or part-time employment while being a full-time student. CYF
was ordered to provide ongoing post-secondary college
vocational planning and take J.C. on college tours. Additionally,
he would still need a permanent place to live. The next dual
review was scheduled for April 20, 2015.

On March 10, 2015, prior to the next review hearing, this
court found that J.C. had failed to adjust (“FTA”) at Adelphoi-SAL
independent living because he was caught viewing pornography.

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J.C. was committed to Cove Prep for his second secure
treatment program with a review scheduled for June 29, 2015.
J.C. remained at Cove Prep for the next eleven months and
received extensive sex offender therapy. At J.C.’s January 25,
2016, dual hearing, this court released J.C. to the unsecure
community independent living program based on his progress
with sex offender therapy. For the next seven months, J.C.
remained in the Auberle GOAL community independent living
program. During this time, he received outpatient sex offender
relapse prevention therapy in which he was permitted to gain
employment, attend therapy sessions independently, and use
public transportation.

Prior to an FTA petition being filed, J.C. was removed from
the GOAL program and detained at the Auberle Delinquency
Hartman Shelter for possessing an unauthorized cell phone and
two computer memory sticks—one of which contained nude
photos of underage boys. After a Detention/Shelter Hearing on
August 22, 2016, this court ordered J.C. to remain detained at
the secure Hartman Shelter.

On September 1, 2016, this court found that J.C. violated
the terms of his probation by: (1) having possession of 2
memory sticks in his back pack and (2) failing to adjust at the
Auberle GOAL program. This court modified J.C.’s disposition,
released him from Auberle GOAL, and placed him at Cove Prep
for his third secure sexual offender’s treatment program. This
court found that placement at Cove Prep was the least restrictive
placement—consistent with public protection—and best suited for
J.C.’s treatment, supervision, rehabilitation and welfare.

J.C.’s public defender filed a petition for writ of habeas
corpus relying on the plain language of 42 Pa.C.S.A. § 6353(a)
(Limitation on and Change in Place of Commitment; General
Rule), contending that J.C. had been illegally detained and, for
more than a year, the court was legally obligated to release him
from Cove Prep for lack of jurisdiction. Prior to J.C.’s
dispositional review hearing on January 19, 2017, the court
heard oral argument on J.C.’s habeas corpus petition which it
denied but agreed to reconsider after reviewing the parties’
briefs. The court also conducted an ACT 21 dispositional review
hearing to determine whether a prima facie case for J.C.’s
involuntary treatment existed under ACT 21. This court found a
prima facie case and ordered the County Department of Human

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Services to file an ACT 21 petition. This court appointed
attorney James Robertson to represent J.C. in the ACT 21
proceedings.

The court also found that J.C. had made minimal progress
toward alleviating the tendencies which necessitated the original
placement because J.C. had recently authored graphic materials
detailing sexual fantasies describing his attraction to young boys
and vividly describing the genitals of young boys. The letters
had been reviewed by both Cove Prep staff and Probation, and
both agreed that the letters were not of a therapeutic nature and
were intended for J.C.’s arousal.

Cove Prep and Probation both addressed their concerns to
J.C. and re-directed him. At this point in the treatment process,
therapy was concentrating on ability, or lack of ability, to control
his attraction to young boys. J.C. admitted he has a serious
issue and struggles daily with his attraction to young boys. He
stated to probation he is unsure of his ability to control this
attraction to boys while in the community. This court found that
the current disposition provided balanced attention to the
protection of the community, the imposition of accountability for
offenses committed, and the development of competencies to
enable the juvenile to become a responsible and productive
member of the community. This court ordered J.C. to remain at
Cove Prep.

The motion for reconsideration of his petition for habeas
was denied on February 16, 2017, with the court adopting the
Commonwealth’s legal argument. On March 8, 2017, J.C.’s
attorney filed a Motion to Certify Interlocutory Order for Appeal
of this reconsideration denial. This court granted that motion on
April 7, 2017, finding that the case presents a controlling
question of law as to which there is substantial ground for
difference of opinion, and an immediate appeal will materially
advance the ultimate termination of the matter.3

3 On July 24, 2017, the Superior Court of
Pennsylvania granted J.C.[’s] appeal of this court’s
interlocutory order dated February 16, 2017[,]
denying J.C.’s petition for habeas corpus relief. The
court filed its opinion to this appeal on August 29,
2017.[

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The court conducted a dual placement review and ACT 21
hearing on June 27, 2017. At the hearing’s conclusion, this
court found by clear and convincing evidence that J.C. has a
mental abnormality or personality disorder which results in
serious difficulty in controlling sexually violent behavior that
makes him likely to engage in an act of sexual violence and
otherwise meets all criteria necessary for continued commitment
under ACT 21, 42 Pa.C.S.A. § 6403. The court was statutorily
bound to commit J.C. to the Pennsylvania Sexual Responsibility
and Treatment Program at Torrance State Hospital (“Torrance”)
for a period of one year and not permitted any other treatment
options. The court’s only other option by law was to close his
case and release him.

Trial Court Opinion, 10/17/17, at 1-6.

In an order entered July 5, 2017, pursuant to 42 Pa.C.S. § 6403(d),

the trial court committed Appellant for a period of one year to the Sexual

Responsibility and Treatment Program. However, the determination was

stayed for ten days in order to provide Appellant’s counsel time to file a

motion for reconsideration. Appellant filed a motion for reconsideration,

which the trial court denied on July 26, 2017. This timely appeal followed.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

On November 20, 2017, Appellant filed his appellate brief with this

Court. On January 23, 2018, the county solicitor for Allegheny County filed

a responsive brief. Also on January 23, 2018, we notified the parties that

this matter would be argued before this Court on February 28, 2018. On

February 21, 2018, Appellant filed a motion to amend his brief in order to

include an additional argument alleging that Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), has altered the law regarding the civil commitment at

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issue in this case and that the commitment should be construed as

punishment. The county solicitor filed a response to the motion. On March

5, 2018, this Court entered an order granting Appellant’s request to amend

his brief “limited to a discussion of the recent decisions in Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017) and Commonwealth v. Butler, 173

A.3d 1212 (Pa. Super. 2017) and their impact on this case.” Order, 3/5/18.

Appellant has filed a supplemental brief, and the county solicitor has filed an

answer thereto.

Appellant presented the following issue for our review in his initial

appellate brief:

1. Did the Trial Court err in finding by clear and convincing
evidence that [Appellant] has a mental abnormality or
personality disorder and has serious difficulty in controlling
sexually violent behavior?

Appellant’s Brief at 6. In his supplemental brief, Appellant sets forth the

following issue:

1. Does 42 Pa.C.S. § 6403 (“Act 21”) constitute punishment as
determined by a Muniz-Butler analysis.

Appellant’s Supplemental Brief at 5.

We will first address the issue raised by Appellant in his supplemental

brief as it is dispositive. Appellant argues that, pursuant to recent case law,

Act 21 is unconstitutional. Appellant’s Supplemental Brief at 6-18.

Essentially, Appellant contends that, under our Supreme Court’s decision in

Muniz and this Court’s decision in Butler, we should hold Act 21 to be

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unconstitutional because the provisions of the statute impermissibly

constitute punishment. Appellant asserts that, once the provisions of Act 21

are properly deemed to be punishment, the statute must be considered to

be unconstitutional because its implementation relies upon an incorrect

burden of proof. Appellant’s Supplemental Brief at 12. After thorough

review, we are constrained to agree.

We observe that a challenge to the application of a statute by a trial

court presents a question of law. Commonwealth v. Perez, 97 A.3d 747,

750 (Pa. Super. 2014). Where an issue presents a question of law, the

appellate court’s standard of review is de novo. Commonwealth v.

Descardes, 136 A.3d 493, 496-497 (Pa. 2016). In addition, our scope of

review is plenary. Id.

To the extent that Appellant raises an issue challenging the

constitutionality of a statute, “[w]e note that duly enacted legislation carries

with it a strong presumption of constitutionality.” Commonwealth v.

Turner, 80 A.3d 754, 759 (Pa. 2013) (citation omitted). “A presumption

exists ‘[t]hat the General Assembly does not intend to violate the

Constitution of the United States or of this Commonwealth’ when

promulgating legislation.” Commonwealth v. Baker, 78 A.3d 1044, 1050

(Pa. 2013) (quoting 1 Pa.C.S. § 1922(3)). “Thus, a statute will not be found

unconstitutional unless it clearly, palpably, and plainly violates the

Constitution. If there is any doubt as to whether a challenger has met this

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high burden, then we will resolve that doubt in favor of the statute’s

constitutionality.” Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa.

2013) (quotation marks and citations omitted).

As a prefatory matter, we set forth an extensive overview of the

statutes at issue. Section 6352 of the Juvenile Act provides, in pertinent

part, as follows:

§ 6352. Disposition of delinquent child

(a) General rule.―If the child is found to be a delinquent
child the court may make any of the following orders of
disposition determined to be consistent with the protection of the
public interest and best suited to the child’s treatment,
supervision, rehabilitation, and welfare, which disposition shall,
as appropriate to the individual circumstances of the child’s case,
provide balanced attention to the protection of the community,
the imposition of accountability for offenses committed and the
development of competencies to enable the child to become a
responsible and productive member of the community:

* * *

(2) Placing the child on probation under
supervision of the probation officer of the court . . .,
under conditions and limitations the court prescribes.

42 Pa.C.S. § 6352(a)(2).

A child who has been adjudicated delinquent for certain acts of sexual

violence and committed pursuant to Section 6352, and who remains

committed upon attaining twenty years of age, is subject to assessment by

the Sex Offender Assessment Board (“SOAB”) and a subsequent court

review pursuant to 42 Pa.C.S. § 6358. Section 6358 states:

§ 6358. Assessment of delinquent children by the State
Sexual Offenders Assessment Board

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(a) General rule.--A child who has been found to be
delinquent for an act of sexual violence which if committed by an
adult would be a violation of 18 Pa.C.S. § 3121 (relating to
rape), 3123 (relating to involuntary deviate sexual intercourse),
3124.1 (relating to sexual assault), 3125 (relating to aggravated
indecent assault), 3126 (relating to indecent assault) or 4302
(relating to incest) who is committed to an institution or other
facility pursuant to section 6352 (relating to disposition of
delinquent child) and who remains in such facility upon attaining
20 years of age shall be subject to an assessment by the board.

(b) Duty of probation officer.--Ninety days prior to
the 20th birthday of the child, the probation officer shall have the
duty to notify the board of the status of the delinquent child and
the institution or other facility where the child is presently
committed. The probation officer shall assist the board in
obtaining access to the child and any information required by the
board to perform the assessment, including, but not limited to,
the child’s official court record and complete juvenile probation
file.

* * *

(c) Assessment.--The board shall conduct an
assessment, which shall include the board’s determination of
whether or not the child is in need of commitment for
involuntary treatment due to a mental abnormality as defined in
section 6402 (relating to definitions) or a personality disorder,
either of which results in serious difficulty in controlling sexually
violent behavior. Upon the completion of the assessment
pursuant to this section, the board shall provide the assessment
to the court. . . .

(d) Duty of court.--The court shall provide a copy of
the assessment by the board to the probation officer, the district
attorney, county solicitor or designee and the child’s attorney.

(e) Dispositional review hearing.--Where the board
has concluded that the child is in need of involuntary treatment
pursuant to the provisions of Chapter 64 (relating to court
ordered involuntary treatment of certain sexually violent
persons), the court shall conduct a hearing at which the county
solicitor or a designee, the probation officer and the child’s
attorney are present. The court shall consider the assessment,
treatment information and any other relevant information

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regarding the delinquent child at the dispositional review hearing
pursuant to section 6353 (relating to limitation on and change in
place of commitment), which shall be held no later than 180
days before the 21st birthday of the child. . . .

(f) Subsequent proceeding.--If, at the conclusion of
the dispositional review hearing required in subsection (e), the
court finds there is a prima facie case that the child is in need of
involuntary treatment under the provisions of Chapter 64, the
court shall direct that the county solicitor or a designee file a
petition to initiate proceedings under the provisions of that
chapter.

42 Pa.C.S. § 6358.

Chapter 64 of the Judicial Code encompasses Act 21 and applies to the

commitment of sexually violent children found to be in need of involuntary

treatment pursuant to Section 6358. Section 6401 provides as follows:

6401. Scope of Chapter

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. § 6401.

The procedures to be followed for imposing periods of commitment for

involuntary treatment are detailed in subsequent sections of Act 21. Section

6403 addresses the procedures to be followed for determining if an

individual requires commitment for involuntary treatment under Act 21, and

states as follows:

§ 6403. Court-ordered involuntary treatment

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(a) Persons subject to involuntary treatment.—A person
may be subject to court ordered commitment for involuntary
treatment under this chapter if the person:

(1) Has been adjudicated delinquent for an act
of sexual violence which if committed by an adult
would be a violation of 18 Pa.C.S.A. § 3121 (relating
to rape), 3123 (relating to involuntary deviate sexual
intercourse), 3124.1 (relating to sexual assault),
3125 (relating to aggravated indecent assault), 3126
(relating to indecent assault) or 4302 (relating to
incest).

(2) Has been committed to an institution or
other facility pursuant to section 6352 (relating to
disposition of delinquent child) and remains in the
institution or other facility upon attaining 20 years of
age.

(3) Is in need of involuntary treatment due to
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.

(b) Procedures for initiating court-ordered involuntary
commitment.—

(1) Where, pursuant to the provisions of
section 6358(f) (relating to assessment of delinquent
children by the State Sexual Offenders Assessment
Board), the court determines that a prima facie case
has been presented that the child is in need of
involuntary treatment under the provisions of this
chapter, the court shall order that a petition be filed
by the county solicitor or a designee before the court
having jurisdiction of the person pursuant to
Chapter 63 (relating to juvenile matters).

(2) The petition shall be in writing in a form
adopted by the department and shall set forth the
facts constituting reasonable grounds to believe the
individual is within the criteria for court-ordered
involuntary treatment as set forth in subsection (a).

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The petition shall include the assessment of the
person by the board as required in section 6358.

(3) The court shall set a date for the hearing
which shall be held within 30 days of the filing of the
petition pursuant to paragraph (1) and direct the
person to appear for the hearing. A copy of the
petition and notice of the hearing date shall be
served on the person, the attorney who represented
the person at the most recent dispositional review
hearing pursuant to section 6358(e) and the county
solicitor or a designee. The person and that attorney
who represented the person shall, along with copies
of the petition, also be provided with written notice
advising that the person has the right to counsel and
that, if he cannot afford one, counsel shall be
appointed for the person.

(4) The person shall be informed that the
person has a right to be assisted in the proceedings
by an independent expert in the field of sexually
violent behavior. If the person cannot afford to
engage such an expert, the court shall allow a
reasonable fee for such purpose.

(c) Hearing.—A hearing pursuant to this chapter shall be
conducted as follows:

(1) The person shall not be called as a witness
without the person’s consent.

(2) The person shall have the right to confront
and cross-examine all witnesses and to present
evidence on the person’s own behalf.

(3) The hearing shall be public.

(4) A stenographic or other sufficient record
shall be made.

(5) The hearing shall be conducted by the
court.

(d) Determination and order.—Upon a finding by clear
and convincing evidence that the person has a mental
abnormality or personality disorder which results in

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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 inpatient
involuntary treatment to a facility designated by the
department. The order shall be in writing and shall be
consistent with the protection of the public safety and the
appropriate control, care and treatment of the person. An
appeal shall not stay the execution of the order.

42 Pa.C.S. § 6403 (emphasis added).

The limitations of Act 21 on the duration of commitment and

subsequent review procedures are set forth as follows:

§ 6404. Duration of commitment and review

(a) Initial period of commitment.—The person shall be
subject to a period of commitment for inpatient treatment for
one year.

(b) Annual review. —

(1) Sixty days prior to the expiration of the one-year
commitment period, the director of the facility or a designee
shall submit an evaluation and the board shall submit an
assessment of the person to the court.

(2) The court shall schedule a review hearing which shall
be conducted pursuant to section 6403(c)(relating to court-
ordered involuntary treatment) and which shall be held no later
than 30 days after receipt of both the evaluation and the
assessment under paragraph (1). Notice of the review hearing
shall be provided to the person, the attorney who represented
the person at the previous hearing held pursuant to this
subsection or section 6403, the district attorney and the county
solicitor or a designee. The person and the person’s attorney
shall also be provided with written notice advising that the
person has the right to counsel and that, if he cannot afford one,
counsel shall be appointed for the person. If the court
determines by clear and convincing evidence that the
person continues to have serious difficulty controlling
sexually violent behavior while committed for inpatient
treatment due to a mental abnormality or personality

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disorder that makes the person likely to engage in an act
of sexual violence, the court shall order an additional
period of involuntary inpatient treatment of one year;
otherwise, the court shall order the department, in consultation
with the board, to develop an outpatient treatment plan for the
person. The order shall be in writing and shall be consistent with
the protection of the public safety and appropriate control, care
and treatment of the person.

42 Pa.C.S. § 6404(a), (b) (emphasis added).

In addition, the following language in Section 6404 also governs a

transfer of an individual from involuntary inpatient treatment to involuntary

outpatient treatment provided that certain criteria are met by the individual:

(c) Outpatient treatment plan. —

(1) 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. Notice of the petition shall be given to the
person, the attorney who represented the person at the previous
hearing held pursuant to subsection (b) or section 6403, the
board, the district attorney and the county solicitor. The person
and the person’s attorney shall also be provided with written
notice advising that the person has the right to counsel and that,
if he cannot afford one, counsel shall be appointed for the
person.

(2) Upon receipt of notice under paragraph (1), the board
shall conduct a new assessment within 30 days and provide that
assessment to the court.

(3) Within 15 days after the receipt of the assessment
from the board, the court shall hold a hearing pursuant to
section 6403(c). If the court determines by clear and
convincing evidence that the person continues to have
serious difficulty controlling sexually violent behavior
while committed for inpatient treatment due to a mental
abnormality or personality disorder that makes the person
likely to engage in an act of sexual violence, the court

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shall order that the person be subject to the remainder of
the period of inpatient commitment. Otherwise, the court
shall order the department, in consultation with the
board, to develop an outpatient treatment plan for the
person.

(4) The department shall provide the person with notice of
the person’s right to petition the court for transfer to involuntary
outpatient treatment over the objection of the department. The
court, after review of the petition, may schedule a hearing
pursuant to section 6403(c).

(5) An outpatient treatment plan shall be in writing and
shall identify the specific entity that will provide each clinical and
support service identified in the plan.

(6) The department shall provide a copy of the outpatient
treatment plan to the court, the person, the attorney who
represented the person at the most recent hearing pursuant to
section 6403, the board, the district attorney, and the county
solicitor or a designee.

42 Pa.C.S. § 6404(c) (emphasis added).

Also, the restrictions on discharge of an individual following involuntary

treatment are set forth in Act 21 as follows:

(d) Prohibition on discharge. — The court shall not order
discharge from involuntary treatment until the person has
completed involuntary outpatient treatment pursuant to section
6404.2 (relating to duration of outpatient commitment and
review).

42 Pa.C.S. § 6404(d).

Act 21 further provides for a transfer of an individual to involuntary

outpatient treatment with the following provision:

Transfer to involuntary outpatient treatment.

The court may approve or disapprove an outpatient
treatment plan. Upon approval of an outpatient treatment plan,

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the court shall order transfer of the person to involuntary
outpatient treatment pursuant to section 6404.2 (relating to
duration of outpatient commitment and review).

42 Pa.C.S. § 6404.1.

With regard to involuntary outpatient treatment and subsequent

review, the statute provides the following:

Duration of outpatient commitment and review.

(a) Terms and conditions. — If a court has ordered the
transfer of the person to involuntary outpatient treatment
pursuant to section 6404.1 (relating to transfer to involuntary
outpatient treatment), the court may in its discretion specify the
terms and conditions of the outpatient commitment, including,
but not limited to:

(1) Absolute compliance with the outpatient
treatment plan.
(2) Restrictions and requirements regarding the
location of the person’s residence and the times the
person must be physically present.
(3) Restrictions and requirements regarding areas
the person is not permitted to visit.
(4) Restrictions and requirements regarding who the
person may contact in any medium.
(5) Periodic polygraph tests.

(b) Duration. — The court shall order involuntary outpatient
treatment for a period of one year.

(c) Status reports. — An involuntary outpatient treatment
provider shall submit a report on the person’s status and clinical
progress, on a form prescribed by the department, to the facility
operated by the department pursuant to section 6406(a)
(relating to duty of Department of Public Welfare), not less than
every 30 days.

(d) Failure to comply. — If an involuntary outpatient
treatment provider becomes aware that the person has violated
any provision of the treatment plan or any term or condition
specified pursuant to subsection (a), or the provider concludes

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that the person 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 sexual violence, the provider shall
immediately notify the facility operated by the department
pursuant to section 6406(a). The facility shall notify the court by
the close of the next business day.

(e) Revocation of transfer. — Upon receiving notice pursuant
to subsection (d) that the person has violated a material term or
condition of transfer specified pursuant to subsection (a), or that
the person 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 sexual violence, the court shall revoke the transfer to
involuntary outpatient treatment and order the immediate return
to involuntary inpatient treatment without a prior hearing. The
court may issue a warrant requiring any law enforcement officer
or any person authorized by the court to take the person into
custody and return the person to involuntary inpatient
treatment. The person may file a written request for a hearing
after revocation of the transfer to involuntary treatment. The
court shall conduct a hearing pursuant to section 6403(c)
(relating to court-ordered involuntary treatment) within ten days
of filing of the request.

(f) Annual review and discharge.

(1) Sixty days prior to the expiration of the one-
year outpatient commitment period, the director of
the facility or a designee shall submit an evaluation,
and the board shall submit an assessment of the
person to the court.

(2) The court shall schedule a review hearing which
shall be conducted pursuant to section 6403(c) and
which shall be held no later than 30 days after
receipt of both the evaluation and the assessment
under paragraph (1). Notice of the review hearing
shall be provided to the person, the attorney who
represented the person at the previous hearing held
pursuant to section 6403, the district attorney and
the county solicitor or a designee. The person and
the person’s attorney shall also be provided with

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written notice advising that the person has the right
to counsel and that, if the person cannot afford one,
counsel shall be appointed for the person. If the
court determines by clear and convincing
evidence that the person has serious difficulty
controlling sexually violent behavior due to a
mental abnormality or personality disorder that
makes the person likely to engage in an act of
sexual violence, the court shall order an
additional period of involuntary inpatient
treatment of one year; otherwise the court shall
order the discharge of the person and inform the
person on the record and in open court of the
person’s obligation to attend counseling under
subsection (g), including the penalty for failing to
attend counseling under 18 Pa.C.S. § 4915.1
(relating to failure to comply with registration
requirements). The order shall be in writing and
shall be consistent with the protection of the public
safety and appropriate control, care and treatment of
the person. Upon discharge, the person shall attend
counseling under subsection (g).

(g) Counseling of sexually violent delinquent children. —
For the time period under section 9799.15 (relating to
period of registration), a sexually violent delinquent child
shall attend at least monthly counseling sessions in a
program approved by the board and shall be financially
responsible for all fees assessed from the counseling
sessions. The board shall monitor compliance. If the sexually
violent delinquent child can prove to the satisfaction of the court
inability to afford to pay for the counseling sessions, the sexually
violent delinquent child shall attend the counseling sessions; and
the board shall pay the requisite fees.

42 Pa.C.S. § 6404.2 (emphases added).

We now turn to recently developed case law that informs our analysis

in this matter, i.e, Muniz and Butler. We note that these cases addressed

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the constitutionality of this Commonwealth’s Sexual Offender Registration

and Notification Act (“SORNA”)1 and not Act 21. However, historically, we

have employed the same standards in reviewing issues under Act 21 as

under the relevant adult sex offender statute. See In the Interest of

K.A.P., 916 A.2d 1152, 1159 (Pa. Super. 2007) (stating “[j]ust like Megan’s

Law II, [Act 21] contains provisions where a trial court is asked to predict

the likelihood that an offender will commit an act of sexual violence as a

result of a personality disorder or mental abnormality. Thus, the cases

interpreting Megan’s Law II are highly instructive when interpreting [Act

21]”); In the Interest of R.Y., 957 A.2d 780, 784 (Pa. Super. 2008)

(observing that, analytically, a claim challenging the sufficiency of the

evidence under Act 21 is similar to a challenge to the sufficiency of the

evidence that a defendant is a “sexually violent predator” under Megan’s

Law and adopting the same principles of appellate review for Act 21

purposes). Despite the lack of such analysis in In re H.R., ___ A.3d ___,

2018 PA Super 264 (Pa. Super. filed September 21, 2018), as discussed

infra, we conclude that we are constrained by our prior determinations,

which applied Megan’s Law decisions to cases involving Act 21, to analyze

____________________________________________

1 SORNA, 42 Pa.C.S. §§ 9799.10-9799.41, supplanted Megan’s Law as the
statute governing the registration and supervision of sex offenders. SORNA
was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 10 of 2018.

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Act 21 in light of recent case law that addressed the constitutionality of

SORNA.

In Muniz, the Pennsylvania Supreme Court held that the registration

requirements set forth under SORNA constitute criminal punishment as

opposed to a mere civil penalty, and therefore, their retroactive application

violates the ex post facto clauses of the Pennsylvania Constitution. Muniz,

164 A.3d at 1193. Indeed, five of the six participating justices held that the

registration provisions constitute punishment, notwithstanding the General

Assembly’s identification of the provisions as nonpunitive. Id. at 1218. In

reaching its holding, the Court in Muniz applied a two-part analysis. Id. at

1208. The Court first addressed the stated intent of the General Assembly

in effectuating the statute. Id. at 1209. The Court went on to determine

whether the law was punitive in effect by conducting an analysis of the

seven factors used to determine if a statute is punishment set forth in

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Accordingly, we

will do likewise.

We observe that a panel of this Court recently decided the matter of

In re H.R., ___ A.3d ___, 2018 PA Super 264 (Pa. Super. filed September

21, 2018), and concluded that Act 21 has a nonpunitive purpose and effect,

such that it does not constitute punishment. In reaching its conclusion, the

Court in H.R. relied upon our previous holding in In re S.A., 925 A.2d 838

(Pa. Super. 2007), wherein we determined that Act 21 is not penal in

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nature. H.R., ___ A.3d at ___, 2018 PA Super 264 at *7. In so doing, the

Court in H.R. declined to rely upon our Supreme Court’s decision in Muniz

and attempted to distinguish the ramifications of the decision therein. Id. at

*8. Specifically, the Court in H.R. stated:

[I]n In re S.A., this Court considered Act 21 in light of the
[Mendoza–Martinez] factors, and concluded that Act 21 is not
punitive in effect. Therefore, Muniz, which found that the ex
post facto application of SORNA (a punitive statute) was
prohibited, is distinguishable from this case that involves Act 21
(a non-punitive statute). Hence, [the a]ppellant’s reliance on
Muniz affords him no relief.

Id. (emphases in original). Likewise, the Court in H.R. distinguished this

Court’s holding in Butler on the presumption that Butler was decided based

on the punitive effect of SORNA, and, pursuant to the holding in S.A., Act 21

is not punitive. Id. at *9. Finally, in reaching its conclusion that the 2011

amendments to Act 21 do not render the statute punitive in nature, the H.R.

Court relied upon a discussion presented by the trial court and considered

only isolated excerpts from the 2011 amendments. Id. at *9-12. In so

doing, the H.R. Court did not conduct a full two-step analysis of the

amended statute, as conducted in Muniz, to determine whether it must be

deemed punitive in nature. We further note that the cases relied upon by

the Court in H.R., for the blanket conclusion that Act 21 is nonpunitive,

predate the 2011 amendments to Act 21. For this reason, we decline to

follow the rudimentary reasoning set forth in H.R. and will conduct our own

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two-step, Muniz-sanctioned analysis of Act 21 as it now stands with the

2011 amendments.

Our first inquiry involves a determination of the intent of the

legislature. As the Court in Muniz explained:

In applying the first element of this test, the sole question is
whether the General Assembly’s intent was to punish. This is a
question of statutory construction and we must consider the
statute’s text and its structure to determine the legislative
objective. Furthermore, considerable deference must be
afforded to the intent as the legislature has stated it.

Muniz, 164 A.3d 1209 (citations and quotation marks omitted).

The General Assembly announced that Act 21 “establishes rights and

procedures for the civil commitment of sexually violent delinquent children,

who . . . pose a danger to the public and further provides for additional

periods of commitment for involuntary treatment . . .” 42 Pa.C.S. § 6401.

Nothing in this language reflects that the legislature intended the law to be

punishment. Rather, the General Assembly’s stated intent in enacting Act

21 was not to punish sexually violent delinquent children, but to establish

civil commitment procedures to provide involuntary treatment and protect

the public from danger. Therefore, because the intent of the legislation is

nonpunitive, we address the second prong of our analysis, i.e., examination

of the seven Mendoza-Martinez factors as approved in Muniz.

Specifically, our inquiry requires a determination as to whether the

effects of Act 21 are sufficiently punitive to override the legislature’s

nonpunitive intent. To this end, in Mendoza–Martinez, 372 U.S. 144, the

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United States Supreme Court mandated a seven-factor test. Specifically,

courts must consider the following:

Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional aims
of punishment—retribution and deterrence, whether the behavior
to which it applies is already a crime, whether an alternative
purpose to which it may rationally be connected is assignable for
it, and whether it appears excessive in relation to the alternative
purpose assigned are all relevant to the inquiry, and may often
point in differing directions.

Id. at 168–169.

The first factor addresses whether Act 21 involves an affirmative

disability or restraint. The statute provides that the individual is subject to

involuntary inpatient commitment for a period of one year. 42 Pa.C.S.

§ 6404(a). It also provides for an annual review, at which the court may

“order an additional period of involuntary inpatient treatment for one year.”

42 Pa.C.S. § 6404(b)(2). This type of involuntary inpatient treatment is

permitted to extend indefinitely.

Furthermore, the 2011 amendments to Act 21 altered the ramification

of the trial court’s conclusion upon annual review. The statute formerly

instructed that if the court determined that the person did not continue to

have serious difficulty controlling sexually violent behavior while committed

for inpatient treatment due to a mental abnormality or personality disorder

that made the person likely to engage in an act of sexual violence, the court

shall order the discharge of the person. However, the 2011 amendments

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removed the opportunity for immediate discharge and instructed that if the

court determines that the person does not continue to have serious difficulty

controlling sexually violent behavior while committed for inpatient treatment

due to a mental abnormality or personality disorder that makes the person

likely to engage in an act of sexual violence, “the court shall order the

department, in consultation with the board, to develop an outpatient

treatment plan for the person.” 42 Pa.C.S. § 6404(b)(2) (emphasis

added). In addition, the 2011 amendment to Act 21 added the following

restrictive language prohibiting discharge prior to completion of involuntary

outpatient treatment:

(d) Prohibition on discharge.-- The court shall not order
discharge from involuntary treatment until the person has
completed involuntary outpatient treatment pursuant to section
6404.2 (relating to duration of outpatient commitment and
review).

42 Pa.C.S. § 6404(d).

Hence, we find the involuntary inpatient treatment, as well as the

limitations on discharge set forth in the 2011 amendments, to be a direct

restraint upon an individual. Accordingly, we consider this factor to weigh in

favor of finding Act 21’s effect to be punitive.

The second factor is whether the sanction has historically been

regarded as punishment. We observe that the 2011 amendments to Act 21

added the entirety of Sections 6404.1 and 6404.2 to the Act. Upon review

of those sections, we are constrained to conclude that they are akin to

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probation. In reaching this conclusion, we reproduce the following language

from our Supreme Court’s decision in Muniz, which analyzed SORNA under

the second factor and enlightens our analysis herein:

In contrast, the mandatory in-person verification requirement in
Section 9799.15(e) not only creates an affirmative restraint
upon appellant, requiring him to appear at a designated facility a
minimum of 100 times over the next 25 years, extending for the
remainder of his life, as a Tier III offender, but also greatly
resembles the periodic meetings with probation officers imposed
on probationers. ... Because SORNA differs significantly from
the statute at issue in Smith[ v. Doe, 538 U.S. 84 (2003)],
these disparities must be considered.

In [Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003)] Williams II, the Pennsylvania Supreme Court found that
probation has historically been considered a traditional form of
punishment. Williams II, 832 A.2d at 977. Probation entails a
set of mandatory conditions imposed on an individual who has
either been released after serving a prison sentence, or has been
sentenced to probation in lieu of prison time. 42 Pa.C.S. § 9754.
These conditions can include psychiatric treatment, limitations
on travel, and notifying a probation officer when any change of
employment or residency occurs. 42 Pa.C.S. § 9754(c).
Probationers are also subject to incarceration for a violation of
any condition of their probation. 42 Pa.C.S. § 9771.

Like the conditions imposed on probationers, registrants
under SORNA must notify the state police of a change in
residence or employment. 42 Pa.C.S. § 9799.15(g). Offenders
also face incarceration for any non-compliance with the
registration requirements. 42 Pa.C.S. § 9799.22(a).
Furthermore, SORNA requires registrants who do not have a
fixed place of work to provide “general travel routes and general
areas where the individual works” in order to be in compliance.
42 Pa.C.S. § 9799.16. The Supreme Court in Smith stated that
“a sex offender who fails to comply with the reporting
requirement may be subjected to criminal prosecution for that
failure, but any prosecution is a proceeding separate from the
individual’s original offense.” Smith, 538 U.S. at 101-02.
However, violations for noncompliance with both probation and
SORNA registration requirements are procedurally parallel. Both

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require further factual findings to determine whether a violation
has actually occurred. 42 Pa.C.S. §§ 9771(d), 9799.21.
Similarly, but for the original underlying offense, neither would
be subject to the mandatory conditions from which the potential
violation stems. The parallels between the SORNA registration
requirements and probation lead me to conclude that factor two
of the Mendoza-Martinez test leans towards a finding that
SORNA is punitive.

Muniz, 164 A.3d at 1213 (quoting Commonwealth v. Perez, 97 A.3d 747,

763-764 (Pa. Super. 2014) (Donohue, J. concurring)).

Similar to the conditions imposed upon an individual who has either

been released after serving a prison sentence or has been sentenced to

probation in lieu of prison time, Act 21 permits the court to specify terms

and conditions of the involuntary outpatient commitment, including but not

limited to:

(1) Absolute compliance with the outpatient treatment plan.
(2) Restrictions and requirements regarding the location of the
person’s residence and the times the person must be physically
present.
(3) Restrictions and requirements regarding areas the person is
not permitted to visit.
(4) Restrictions and requirements regarding who the person
may contact in any medium.
(5) Periodic polygraph tests.

42 Pa.C.S. § 6404.2(a). Further, the statute mandates that if a person

violates a material term or condition specified in Section 6404.2(a), “the

court shall revoke the transfer to involuntary outpatient treatment and order

the immediate return to involuntary inpatient treatment without a prior

hearing.” 42 Pa.C.S. § 6404.2(e). An addition to the penal nature of the

statute is the language directing that “[t]he court may issue a warrant

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requiring any law enforcement officer or any person authorized by the court

to take the person into custody and return the person to involuntary

inpatient treatment.” Id.

Upon review of these provisions of Act 21 pertaining to involuntary

outpatient treatment, we conclude that they are similar to probation.

Therefore, this factor of the analysis, as well, weighs in favor of a

determination that Act 21’s effect is punitive.

The third factor concerns whether the statute at issue applies only

upon a finding of scienter. With regard to this factor, Appellant notes that

the Court in Muniz determined that this factor was of little significance and

concedes that it is not relevant to our analysis. Appellant’s Brief at 10. The

Commonwealth agrees. Commonwealth’s Brief at 12. We follow the

conclusion of the Court in Muniz and consider this factor to be of little

significance in our inquiry. Muniz, 164 A.3d at 1214.

The fourth factor concerns whether the operation of the statute

promotes the traditional aims of punishment, i.e., retribution and

deterrence. Act 21 does not have an effect of retribution. In S.A., the Court

addressed the deterrent effect of the statute as follows: “[A]lthough the

legislation could possibly deter behavior of delinquent juveniles, the

presence of a deterrent purpose does not render such legislation punitive in

nature.” S.A., 925 A.2d at 844. However, as we noted earlier, the S.A.

Court’s conclusion was based upon the previous version of Act 21.

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For the following reasons, when we review the current iteration of Act

21, we cannot reach the same conclusion as the Court in S.A. with regard to

deterrence. Specifically, we observe that the previous version of Section

6404 of the statute, which was reviewed by the Court in S.A., permitted

the court to “discharge” the individual from involuntary inpatient treatment

at the conclusion of an annual review period, or upon petition of the director

of the facility in which the individual is committed. Currently, Act 21 does

not permit discharge of an individual from involuntary inpatient treatment,

but instead directs that an outpatient treatment plan be formulated. In fact,

Act 21 now contains the following language prohibiting discharge:

The court shall not order discharge from involuntary
treatment until the person has completed involuntary
outpatient treatment pursuant to section 6404.2 (relating to
duration of outpatient commitment and review).

42 Pa.C.S. § 6404(d) (emphasis added). Furthermore, the current version

of Act 21 includes additional language pertaining to transfer of an individual

to involuntary outpatient treatment, 42 Pa.C.S. § 6404.1, and a section

detailing the duration of outpatient treatment and review, 42 Pa.C.S.

§ 6404.2. Adding to the deterrent effect, Act 21 currently includes

provisions that permit the individual to be transferred immediately from

involuntary outpatient treatment back to involuntary inpatient treatment.

42 Pa.C.S. § 6404.2(e). The 2011 amendments direct that a review hearing

be held at the conclusion of one year of involuntary outpatient treatment.

42 Pa.C.S. § 6404.2(f). Following the review hearing:

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the court shall order an additional period of involuntary inpatient
treatment of one year; otherwise the court shall order the
discharge of the person and inform the person on the record and
in open court of the person’s obligation to attend counseling
under subsection (g), including the penalty for failing to attend
counseling under 18 Pa.C.S. Section 4915.1 (relating to failure
to comply with registration requirements).

42 Pa.C.S. § 6404.2(f). Thus, the individual can be cycled from involuntary

outpatient treatment back into involuntary inpatient treatment to begin the

entire process anew.

Moreover, as reflected in the language cited above, the 2011

amendments to Act 21 added the additional requirement that, upon eventual

discharge, the individual attend at least monthly counseling sessions in an

approved program and shall be financially responsible for all fees from the

counseling sessions. 42 Pa.C.S. § 6404.2(g). The counseling requirement is

equal to the length of the individual’s SORNA registration. Id. Currently,

under SORNA, a sexually violent delinquent child must register for life. 42

Pa.C.S. § 9799.15(a)(5). Therefore, the mandatory counseling requirement

under 42 Pa.C.S. § 6404.2(g), and the concomitant responsibility to pay for

such counseling sessions, continues for the individual’s lifetime. Analyzing

the statute as a whole, we are compelled to conclude that its provisions were

designed with a deterrent effect. Accordingly, this factor weighs in favor of

finding Act 21 to be punitive.

We turn to the fifth factor, which concerns whether the behavior to

which the statute applies is already a crime. With regard to this factor,

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Appellant agrees with the Muniz Court, which determined that the factor

was of little weight because past criminal conduct is a necessary beginning

point. Appellant’s Brief at 11. Again, we follow the conclusion of the Court

in Muniz and consider this factor to be of little significance in our inquiry.

Muniz, 164 A.3d at 1216.

The sixth factor compels us to address whether there is an alternative

purpose to which Act 21 may be rationally connected. Here, Appellant

concedes that Act 21 is rationally related to public safety and health. We

agree that there is an alternative purpose to which the statute may be

rationally connected. Consequently, we conclude that this factor weighs in

favor of finding Act 21 to be nonpunitive.

Finally, the seventh factor directs us to consider whether the statute is

excessive in relation to the alternative purpose assigned. There is no doubt

that once a person is subject to the provisions of Act 21, such subordination

continues indefinitely. The statutory process begins when the court

mandates involuntary inpatient treatment, which is subject to an annual

review hearing. At the end of the review hearing, the court must either (1)

recommit the person for another one-year term of involuntary inpatient

treatment, or (2) transfer the person to involuntary outpatient treatment for

a term of one year. If the court recommits the person for further inpatient

treatment, the cycle of recommitment and review may continue indefinitely.

Eventually, if the court is satisfied that the person no longer has serious

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difficulty in controlling sexually violent behavior in an inpatient setting, the

individual is not discharged but is transferred to involuntary outpatient

treatment. The period of involuntary outpatient treatment also is for one

year, with a review hearing at the conclusion of that period. At the

conclusion of that review hearing, the court shall either (1) “discharge” the

person or (2) transfer the individual back to involuntary inpatient treatment

to begin the entire sequence anew. However, in this instance the term

“discharge” is a misnomer because the person is never unconstrained of the

mandatory monthly counseling provision with its associated cost that follows

the completion of involuntary outpatient treatment. Moreover, failure to

attend the mandatory counseling sessions constitutes a criminal offense. 18

Pa.C.S. § 4915.1(a.2). Said crime is currently graded as a misdemeanor of

the first degree. 18 Pa.C.S. § 4915.1(c.3). We conclude that the sweeping

nature of Act 21, which subjects the individual to lifetime control by the

state for acts that occurred when the person was a juvenile, is excessive in

relation to the statute’s alternative purpose of protecting the public.

Consequently, this factor weighs in favor of finding Act 21 to be punitive.

We also must balance the above-discussed factors. Our review of Act

21 under the Mendoza-Martinez factors reveals significant differences

between the most recent iteration of the statute following the 2011

amendments and the statute that was determined to be nonpunitive in S.A.,

925 A.2d at 845. We now hold that four of the five factors, which we have

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given significance, weigh in favor of finding Act 21 to be punitive in effect

despite its remedial purpose. In summary, we have concluded that Act 21

involves affirmative disabilities or restraints; its sanctions have been

historically regarded as punishment; its operation promotes the traditional

aims of punishment; and its lifelong provisions are excessive in relation to

its stated nonpunitive purpose. Accordingly, we find that application of Act

21 constitutes punishment.

We also must consider Appellant’s claim that the provisions of Act 21

are unconstitutional as written because they amount to the imposition of

punishment. Appellant’s Supplemental Brief at 12. Specifically, Appellant

notes that the statute employs an incorrect burden of proof in determining

whether to apply its provisions to individuals. Id. We agree.

In addressing this portion of Appellant’s argument, we consider the

following language from Butler:

In Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000)], the Supreme Court of the
United States held that other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. Stated another way, it is
unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed. It is equally
clear that such facts must be established by proof beyond a
reasonable doubt.

Subsequently in Alleyne v. United States, 570 U.S. 99,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the [Supreme Court of
the United States] held that any fact that increases the
mandatory minimum sentence for a crime is an element that

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must be submitted to the jury and found beyond a reasonable
doubt. The Alleyne majority reasoned that while Harris v.
United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524
(2002), limited Apprendi to facts increasing the statutory
maximum, the principle applied in Apprendi applies with equal
force to facts increasing the mandatory minimum. This is
because it is impossible to dissociate the floor of a sentencing
range from the penalty affixed to the crime, and it is impossible
to dispute that facts increasing the legally prescribed floor
aggravate the punishment. Thus, this reality demonstrates that
the core crime and the fact triggering the mandatory minimum
sentence together constitute a new, aggravated crime, each
element of which must be submitted to the jury.

Butler, 173 A.3d at 1216-1217 (quoting Commonwealth v. Conaway,

105 A.3d 755, 761 (Pa. Super. 2014)). This Court further explained:

Apprendi and Alleyne apply to all types of punishment,
not just imprisonment. Thus, as our Supreme Court has stated
[in Muniz], if registration requirements [under SORNA] are
punishment, then the facts leading to registration requirements
need to be found by the fact-finder chosen by the defendant, be
it a judge or a jury, beyond a reasonable doubt.

Butler, 173 A.3d at 1217 (citations omitted). The Butler Court went on to

clarify the following:

[S]ince our Supreme Court has held that SORNA registration
requirements are punitive or a criminal penalty to which
individuals are exposed, then under Apprendi and Alleyne, 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[,]” 42
Pa.C.S.A. § 9799.12, that increases the length of registration
must be found beyond a reasonable doubt by the chosen
fact-finder. Section 9799.24(e)(3) [of SORNA] identifies the
trial court as the finder of fact in all instances and specifies clear
and convincing evidence as the burden of proof required to
designate a convicted defendant as an SVP. Such a statutory
scheme in the criminal context cannot withstand constitutional
scrutiny. Accordingly, we are constrained to hold that section
9799.24(e)(3) is unconstitutional and [the a]ppellant’s judgment

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of sentence, to the extent it required him to register as an SVP
for life, was illegal.

Id. at 1217-1218 (emphasis added).

We are constrained to reach the same conclusion as the Court in

Butler. As discussed above, we have determined that the provisions of Act

21 are punitive. Therefore, pursuant to Apprendi and Alleyne, a factual

finding of whether an individual has serious difficulty controlling sexually

violent behavior due to a mental abnormality or personality disorder that

makes the person likely to engage in an act of sexual violence, which

exposes the individual to punishment, must be found beyond a reasonable

doubt by the chosen fact finder. However, Act 21 names the trial court as

the finder of fact and sets forth “clear and convincing evidence” as the

required burden of proof. Accordingly, this statutory procedure does not

withstand constitutional scrutiny. Hence, it is our determination that Act 21

is unconstitutional for the above-stated reasons, and we are constrained to

vacate the order directing Appellant to be subjected to the constraints of the

statute.

Order vacated. Jurisdiction relinquished.

P.J.E. Bender joins the Opinion.

Judge Strassburger files a Dissenting Opinion.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2018

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