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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.M.B. :
:
:
:
:
: No. 121 WDA 2019
Appeal from the Order Dated January 4, 2019
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-JV-0000032-2011
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JULY 13, 2020
A.M.B. appeals from the order that denied his motion to vacate his
involuntary commitment under the Court-Ordered Involuntary Treatment of
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* Retired Senior Judge assigned to the Superior Court.
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Certain Sexually Violent Persons statute (“Act 21”)1 based on In re J.C., 2018
PA Super 335, (Pa. Super. 2018) (“J.C. I”)2. We affirm.
On September 2, 2011, following an agreement by the parties, the
juvenile court found Appellant delinquent of committing acts that would
constitute indecent assault if committed by an adult. The adjudication
stemmed from Appellant’s sexual assault of an intellectually disabled twenty-
six year old female. Appellant was committed to supervision.
On February 20, 2014, the juvenile court held a preliminary Act 21
hearing because Appellant was approaching the age of twenty and was
expected to remain in placement at the time of his twentieth birthday.
Following the hearing, the juvenile court found that the Commonwealth
presented prima facie evidence that Appellant was in need of involuntary
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1 Act 21 directs a juvenile court to order involuntary inpatient treatment for a
sexually violent delinquent child (“SVDC”) if it finds, “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.” 42 Pa.C.S.
§ 6403(d). Once entered, the order is reviewed annually and may extend
indefinitely, as long as the person continues to meet the criteria for
involuntary inpatient treatment. See 42 Pa.C.S. § 6404. Upon release from
involuntary inpatient treatment, the individual must successfully complete one
year of involuntary outpatient treatment in order to comply with Act 21’s
treatment requirements. See 42 Pa.C.S. §§ 6404.1, 6404.2.
2 Approximately one month after the trial court denied Appellant’s motion, this
Court granted reargument en banc in this case and withdrew the J.C. I
opinion. Oral argument was held and, on May 13, 2020, the en banc court
issued its opinion reversing the decision of J.C. I. See In re J.C. ___ A.3d
___, 1391 WDA 2017, 2020 WL 2463048 (Pa.Super. May 13, 2020) (en banc)
(“J.C. II”).
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treatment under Act 21, and directed the Commonwealth to file a petition to
initiate Act 21 proceedings.
On July 18, 2014, the trial court held an Act 21 hearing. Robert Stein,
Ph.D. testified for the Commonwealth. He opined that Appellant had a
diagnosis of conduct disorder and should be involuntarily committed because
Appellant had a lengthy sex offending history with multiple victims, had failed
to achieve the basic prerequisites of treatment, and still struggled with coping
skills. N.T. Hearing, 7/13/14, at 10-11. Accordingly, Dr. Stein advised that
Appellant would have serious difficulty controlling his sexually dangerous
behavior if released and should remain involuntarily committed. Id. at 12.
The clinical services manager at Appellant’s secure placement facility also
testified for the Commonwealth, agreeing with Dr. Stein’s assessment that
Appellant’s treatment progress had been “very slow.” Id. at 30.
Robert Wettstein, M.D. testified for Appellant. He concluded that
Appellant did not have a mental abnormality requiring involuntary
commitment, but agreed that Appellant “certainly need[ed] to continue with
his treatment.” Id. at 49-51. Following the hearing, the trial court found by
clear and convincing evidence that Appellant had a mental abnormality or
permanent disorder which made him likely to engage in an act of sexual
violence. As a result, the court committed Appellant to one year of involuntary
sexual offender treatment pursuant to Act 21.
Appellant filed a timely appeal challenging the sufficiency of the
evidence to support his classification as a SVDC. On August 25, 2015, this
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Court found that the record supported the trial court’s conclusions and
affirmed its order committing Appellant to involuntary treatment. In the
interest of A.M.B., 131 A.3d 103 (Pa.Super. 2015) (unpublished
memorandum).
Thereafter, the trial court conducted annual Act 21 review hearings,
entering orders on July 1, 2015, May 26, 2016, May 22, 2017, and June 21,
2018 re-committing Appellant for an additional year of involuntary
commitment pursuant to Act 21. Appellant did not appeal any of these orders.
On December 10, 2018, a panel of our Court published J.C. I, wherein
we found that Act 21 was unconstitutional. In response, Appellant filed a
motion to vacate his SVDC designation and commitment. On January 4, 2019,
the trial court held a hearing on Appellant’s motion. At the hearing, the
Commonwealth argued that the trial court should follow In re H.R., 196 A.3d
1059 (Pa.Super. 2018) (“H.R. I”), a Superior Court opinion finding Act 21
constitutional. N.T. Motions Hearing, 1/4/19, at 4-5. The trial court agreed
that H.R. I controlled unless and until the Superior Court en banc or the
Pennsylvania Supreme Court reversed it. Id. at 6. Therefore, the trial court
denied Appellant’s motion requesting a release from commitment. Id. at 6.
This appeal followed.
Following a remand, both Appellant and the trial court have complied
with the mandates of Pa.R.A.P. 1925. Appellant raises the following issues for
our review:
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1. Whether the trial court erred when it denied Appellant’s
motion to vacate order imposing [SVDC] designation and
commitment pursuant to Act 21 by failing to apply the
published opinion rendered by the Pennsylvania Superior
Court in [J.C. I,] which found Act 21 to be unconstitutional
as a whole?
2. Whether the trial court erred when it denied Appellant’s
motion to vacate order imposing [SVDC] designation and
commitment pursuant to Act 21 by failing to vacate its prior
finding based upon clear and convincing evidence rather
than proof beyond a reasonable doubt that Appellant met
the criterial of a [SVDC]?
3. Whether the trial court erred when it failed to determine that
42 Pa.C.S. § 6403(d) is unconstitutional on its face and
violates the holdings and analysis in the line of cases;
Alleyne v. United States, 570 U.S. 99 (2013), Apprendi
v. New Jersey, 530 U.S. 466 (2000), Commonwealth v.
Butler, 173 A.3d 1212 (Pa.Super. 2017) and
Commonwealth v. Muniz, 162 A.3d 1198 (Pa. 2017)?[3]
See Appellant’s brief at 7-8.4
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3 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that the
registration requirements of Pennsylvania’s Sex Offender Registration and
Notification Act (“SORNA”) constitute criminal punishment, such that their
retroactive application violates the ex post facto clauses of the United States
and Pennsylvania constitutions); Commonwealth v. Butler, 173 A.3d 1212,
1217-18 (Pa.Super. 2017) (“Butler I”) (citing Apprendi v. New Jersey, 530
U.S. 466 (2000) and Alleyne v. U.S., 570 U.S. 99 (2013) and applying Muniz
to the Sexually Violent Predator (“SVP”) assessments and finding that because
the SORNA registration requirements are punitive, a factual finding, such as
whether a defendant has a mental abnormality that makes him likely to
engage in predatory sexually violent offenses, must be made by the fact-finder
beyond a reasonable doubt).
4 While worded as individual issues, the argument section only contains one
argument, which Appellant then repeated in almost identical fashion two
times. See Appellant’s brief at 13-29. Accordingly, we have consolidated
Appellant’s issues into one claim attacking the constitutionality of Act 21 as
punitive.
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Appellant alleges that Act 21 is punitive. Id. at 17, 22, 29. Therefore,
he maintains, the determination whether someone should be involuntarily
committed to inpatient treatment upon a clear and convincing evidentiary
standard is unconstitutional. Id. at 18, 23-24, 29. “[W]e recognize there is
a general presumption that all lawfully enacted statutes are constitutional. In
addition, as this case presents a question of law, our scope of review is plenary
and we review the lower courts’ legal determinations de novo.”
Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa. 2017).
After Appellant filed his appellate brief, our Supreme Court and an en
banc panel of this Court issued three decisions that are directly on point and
conflict with Appellant’s position. First, in Commonwealth v. Butler, 226
A.3d 972 (Pa. 2020) (“Butler II”), our Supreme Court reversed Butler I, a
case upon which Appellant relies to support his position.5 See Appellant’s
brief at 8, 17, 23, 24, 28. In overruling Butler I, our Supreme Court engaged
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5 As explained previously, in Butler I we held that the registration,
notification, and counseling requirements imposed upon SVPs under SORNA
amounted to punishment, such that SVP determinations must be found
beyond a reasonable doubt. Butler I, supra at 1216-17.
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in a detailed balancing of the Mendoza-Martinez6 factors. Butler II, supra
at 988-93. This analysis led it to conclude that the registration, notification,
and counseling requirements imposed upon SVPs were not punitive under
SORNA. Id. at 992-93. Since these additional requirements placed on SVPs
were not punitive, SORNA’s requirement that the trial court determine
whether an offender is an SVP by a preponderance of the evidence remained
constitutionally sound.7 Id. at 993.
Next, our Supreme Court issued In re H.R., 227 A.3d 316, 318 (Pa.
2020) (“H.R. II”), which affirmed our decision in H.R. I that the Act 21
mechanism for determining whether an individual is a SVDC did not constitute
criminal punishment. See H.R. I, supra at 1065. After acknowledging the
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6The Mendoza-Martinez factors are as follows: whether the statute involves
an affirmative disability or restraint; (2) whether the sanction has been
historically regarded as punishment; (3) whether the statute comes into play
only on a finding of scienter; (4) whether the operation of the statute
promotes the traditional aims of punishment; (5) whether the behavior to
which the statute applies is already a crime; (6) whether there is an
alternative purpose to which the statute may be rationally connected; and (7)
whether the statute is excessive in relation to the alternative purpose
assigned. See Muniz, supra at 1210-17 (discussing Kennedy v. Mendoza-
Martinez, 372 U.S. 144 (1963)).
7 On February 21, 2018, following Muniz and Butler I, the Pennsylvania
General Assembly amended SORNA. See Act of Feb. 21, 2018, P.L. 27, No.
10 (HB 631 of 2017; “Act 10”). Thereafter, our Governor signed new
legislation striking the Act 10 amendments and reenacting several SORNA
provisions. See Act of June 12, 2018, P.L. 140, No. 29 (HB 1952 of 2018;
“Act 29”); see also 42 Pa.C.S. § 9799.51(b)(4) (explaining that the
legislature amended SORNA in order to comply with Muniz and Butler I).
Therefore, the Butler II Court reviewed the amended version of SORNA. See
Butler II, supra at 981 n.11.
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limited precedential value of Muniz, due to the heightened safety concerns
and the irrelevance of the SORNA Subchapter H requirements in the SVDC
context, the H.R. II Court nonetheless applied the analytic structure of the
Butler II Court. H.R. II, supra at 330-31. Accordingly, the Court applied
the Mendoza-Martinez factors to Act 21 in order to determine if it was
punitive in intent or effect. Id. at 331-35. Ultimately, the Court found that
only the first factor weighed in favor of deeming Act 21 punitive, and all other
factors balanced in favor of finding the statute non-punitive. Id. Our High
Court explained the reasoning behind its decision as follows:
Despite the fact that Act 21 imposes obvious affirmative
disabilities or restraints upon SVDCs, our review of the remaining
Mendoza-Martinez factors leads to the conclusion [that] the
statutory scheme is not punitive in intent or effect. Act 21
provides treatment to SVDCs rather than imposing restrictions
that were historically considered punishment, and does not
promote the typically punitive goals of deterrence and retribution.
Furthermore, Act 21 protects the public from SVDCs, who have
never been convicted of a crime, but are subject to the statutory
restrictions because they are dangerously mentally ill. Lastly, Act
21, including the 2011 amendments, cannot be said to be
excessive in light of the danger posed to the public by SVDCs.
Based on all of the above, we conclude that Act 21 does not
constitute criminal punishment.
Id. at 335. Next, the Court reasoned that because the challenged provisions
of Act 21 do not constitute criminal punishment, the appellant’s due process
claim surrounding the burden of proof employed at SVDC hearings failed. Id.
Thus, the statute’s application of a clear and convincing evidentiary standard
for imposing its requirements passed constitutional muster.
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As mentioned previously, this Court withdrew our J.C. I opinion and
submitted the case for en banc reargument. Ultimately, the en banc panel
applied the holding of H.R. II, reversing the outcome of J.C. I. See In re
J.C. ___ A.3d ___, 1391 WDA 2017, 2020 WL 2463048 (Pa.Super. May 13,
2020) (en banc). In doing so, we relied upon the analysis of H.R. II, that the
requirements of Act 21 are not punishment, and that the mechanism of
adjudicating SVDCs by a clear and convincing evidence standard does not run
afoul of the constitution. Id.
Here, as in H.R. II and In re J.C., Appellant challenges the validity of
his SVDC status on the constitutional grounds that Act 21’s requirements
constitute punishment necessitating that all relevant factual findings are made
beyond a reasonable doubt. See Appellant’s brief at 18, 23-24, 29. In light
of the foregoing precedent, we disagree. Our Supreme Court has spoken on
this issue and its holding is fatal to Appellant’s position. Appellant has not
offered any additional analysis to persuade us otherwise. Consequently,
Appellant’s constitutional challenges to Act 21 are meritless and the trial court
did not err by refusing to grant Appellant’s motion. As our Supreme Court
explained in H.R. II, Act 21 is not punitive. Therefore, application of the
statute does not violate Appellant’s constitutional protections.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2020
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