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.
J-A06029-18


     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.


                                   -2-
J-A06029-18


     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

                                   -3-
J-A06029-18


     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.[


                                    -4-
J-A06029-18


           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


                                    -5-
J-A06029-18


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


                                       -6-
J-A06029-18


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


                                               -7-
J-A06029-18


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

                                     -8-
J-A06029-18


             (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

                                     -9-
J-A06029-18


      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


                                     - 10 -
J-A06029-18


     (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).


                                   - 11 -
J-A06029-18


          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

                                     - 12 -
J-A06029-18


     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

                                   - 13 -
J-A06029-18


      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

                                    - 14 -
J-A06029-18


      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,

                                     - 15 -
J-A06029-18


      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

                                    - 16 -
J-A06029-18


     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

                                    - 17 -
J-A06029-18


           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




                                    - 18 -
J-A06029-18


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.



                                          - 19 -
J-A06029-18


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


                                    - 20 -
J-A06029-18


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




                                    - 21 -
J-A06029-18


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

                                   - 22 -
J-A06029-18


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

                                      - 23 -
J-A06029-18


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


                                     - 24 -
J-A06029-18


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

                                   - 25 -
J-A06029-18


      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

                                   - 26 -
J-A06029-18


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.


                                        - 27 -
J-A06029-18


      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:

                                    - 28 -
J-A06029-18


      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,


                                    - 29 -
J-A06029-18


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


                                    - 30 -
J-A06029-18


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


                                     - 31 -
J-A06029-18


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

                                   - 32 -
J-A06029-18


      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

                                     - 33 -
J-A06029-18


      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.




                                    - 34 -
J-A06029-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2018




                          - 35 -
