                           [J-89-2019] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                     :   No. 25 WAP 2018
                                                   :
                      Appellant                    :   Appeal from the Order of the
                                                   :   Superior Court entered October 31,
                                                   :   2017 at No. 1225 WDA 2016,
               v.                                  :   reversing the Judgment of Sentence
                                                   :   of the Court of Common Pleas of
                                                   :   Butler County dated August 4, 2016
 JOSEPH DEAN BUTLER,                               :   at No. CP-10-CR-0001538-2014
                                                   :   and remanding.
                      Appellee                     :
                                                   :   ARGUED: October 16, 2019


                                  CONCURRING OPINION


JUSTICE MUNDY                                             DECIDED: MARCH 26, 2020



       I join the majority opinion’s ultimate conclusion that “the [registration, notification,

and counseling] requirements do not constitute criminal punishment and therefore the

procedure for designating individuals as [sexually violent predators] under [42 Pa.C.S. §]

9799.24(e)(3) is not subject to the constitutional requirements of Apprendi [v. New Jersey,

530 U.S. 466 (2000)] and Alleyne [v. United States, 570 U.S. 99 (2013)] and remains

constitutionally permissible.” Majority Opinion at 2. However, I write separately to note

my disagreement with the majority’s analysis of two factors set forth in Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963), particularly whether the sanction imposes an

affirmative disability or restraint and whether the sanction has been historically regarded

as punishment. Accordingly, I respectfully concur on these points.
       The majority first concludes that the registration, notification, and counseling

requirements set forth in Subchapter H involve an affirmative disability or restraint based

on our decision in Commonwealth v. Muniz, 164 A.3d 1189, 1211 (Pa. 2017). In Muniz,

this Court determined that “the in-person reporting requirements, for both verification and

changes to an offender’s registration” amounted to a “direct restraint” weighing in favor of

finding the sanction punitive. Majority Opinion at 23. The majority is inclined to find Muniz

controlling on this point given that “[sexually violent predators] are subject to the same

exact reporting requirements as the Tier III offenders at issue in Muniz.” Id. However, I

disagree that Muniz is dispositive and would instead apply our rationale in Commonwealth

v. Williams, 832 A.2d 962 (Pa. 2003) (Williams II).

       In Williams II, this Court addressed whether the registration, notification, and

counseling provisions of Megan’s Law II applicable to persons deemed sexually violent

predators constituted criminal punishment.1 Id. at 968-69. In addressing the affirmative

disability or restraint factor, this Court approved of lifetime registration and notification

requirements explaining that they “[did] not significantly restrain registrants, who

remain[ed] free to live where they choose, come and go as they please, and seek

whatever employment they may desire.” Id. at 973 (citations and quotations omitted).

We also concluded that required monthly counseling sessions for life did not weigh in

favor of finding the sanction punitive partly because the counseling requirements were

designed “to assist[ ] the sexually violent predator, who is likely to be impulsive,

irresponsible and burdened with poor behavioral controls, from relapsing into sexually

predatory behavior.” Id. at 975 (quotations omitted).




1The registration, notification, and counseling requirements under Subchapter H are
nearly identical to those set forth in Megan’s Law II.


                            [J-89-2019] [MO: Dougherty, J.] - 2
         In my view, our decision in Williams II supports a finding that the registration,

notification, and counseling provisions under Subchapter H do not impose an affirmative

disability or restraint. Williams II dealt squarely with the registration, notification, and

counseling requirements applicable to those deemed sexually violent predators whereas

Muniz did not. Indeed, the Muniz Court recognized this much when it rejected the

Commonwealth’s argument that “the Williams II Court found more onerous monthly

counseling sessions for sexually violent predators were not an affirmative disability or

restraint,” emphasizing that the counseling requirements were designed to assist sexually

violent predators who are “likely to be impulsive, irresponsible and burdened with poor

behavior controls, from relapsing into sexually predatory behavior.” Muniz, 164 A.3d at

1211 (citation and quotations omitted). It is thus clear that our Court has drawn a

distinction between treatment of sexually violent predators and non-sexually violent

predators, finding that the former may be subject to more onerous requirements by nature

of their diagnoses with a dangerous mental abnormality. The enhanced public safety

risks posed by such individuals warrants acceptance of the conditions applicable in this

case notwithstanding our decision in Muniz. For this reason, I find Muniz inapposite to

our assessment of this factor and would conclude that Williams II controls.

         As for the second factor regarding whether the sanction has historically been

regarded as punishment, I agree with the majority’s ultimate conclusion that this factor

does not weigh in favor of finding the registration, notification, and counseling

requirements punitive. However, I disagree with its finding that the registration and

notification provisions of Subchapter H are comparable to probation. Majority Opinion at

24-25.    While I acknowledge that our decision in Muniz found the registration and

reporting requirements of SORNA to be punitive, I continue to disagree with this finding

for the reasons identified in Chief Justice Saylor’s dissenting opinion. See Muniz, 164




                            [J-89-2019] [MO: Dougherty, J.] - 3
A.3d at 1234 (C.J. Saylor, dissenting) (“I disagree that SORNA’s [registration and

reporting] requirements materially parallel the wide-ranging restrictions and oversight that

demarcate probation as a historically recognized punishment. To the degree that there

are coextensive aspects, they do not constitute the ‘clearest proof’ of punishment so as

to override the Legislature’s stated non-punitive intent.”).2

       For these reasons, I respectfully concur.




2I do, however, agree with the majority’s conclusion that the counseling requirements do
not resemble any other historical form of punishment although counseling may be
imposed as a condition of probation in some instances. Majority Opinion at 25-26, n.15.


                            [J-89-2019] [MO: Dougherty, J.] - 4
