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.
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           [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:


____________________________________________


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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