                                   [J-89-2019]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    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, reversing the
                v.                               :   Judgment of Sentence of the Court of
                                                 :   Common Pleas of Butler County
                                                 :   dated August 4, 2016 at No. CP-10-
    JOSEPH DEAN BUTLER,                          :   CR-0001538-2014 and remanding.
                                                 :
                       Appellee                  :   ARGUED: October 16, 2019


                                         OPINION


JUSTICE DOUGHERTY                                         DECIDED: MARCH 26, 2020
         We granted discretionary review to determine whether the procedure used to

designate certain individuals convicted of sexual offenses as sexually violent predators

(SVPs),1 codified at 42 Pa.C.S. §9799.24(e)(3),2 is constitutionally permissible in light of



1 The General Assembly has defined sexually violent predators as those who have “a
mental abnormality or personality disorder that makes the individual likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S. §9799.12.
2   Section 9799.24(e) provides:
         (e) Hearing.--
               (1) A hearing to determine whether the individual is a sexually violent
               predator shall be scheduled upon the praecipe filed by the district
               attorney. The district attorney upon filing a praecipe shall serve a
               copy of the praecipe upon defense counsel together with a copy of
               the report of the board.
our recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (registration

requirements under Pennsylvania’s Sex Offender Registration and Notification Act

(SORNA) constitute criminal punishment and retroactive application is ex post facto

violation). The Superior Court extrapolated from our decision in Muniz to hold the lifetime

registration, notification, and counseling requirements (RNC requirements) applicable to

SVPs pursuant to 42 Pa.C.S. §§9799.15, 9799.16, 9799.26, 9799.27, and 9799.36 are

increased criminal punishment such that the procedure for conducting SVP

determinations violates the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000)

and Alleyne v. United States, 570 U.S. 99 (2013).3 For the following reasons, we reverse

and hold the RNC requirements do not constitute criminal punishment and therefore the

procedure for designating individuals as SVPs under Section 9799.24(e)(3) is not subject

to the requirements of Apprendi and Alleyne and remains constitutionally permissible.


             (2) The individual and district attorney shall be given notice of the
             hearing and an opportunity to be heard, the right to call witnesses,
             the right to call expert witnesses and the right to cross-examine
             witnesses. In addition, the individual shall have the right to counsel
             and to have an attorney appointed to represent the individual if the
             individual cannot afford one. If the individual requests another expert
             assessment, the individual shall provide a copy of the expert
             assessment to the district attorney prior to the hearing.
             (3) At the hearing prior to sentencing, the court shall determine
             whether the Commonwealth has proved by clear and convincing
             evidence that the individual is a sexually violent predator.
             (4) A copy of the order containing the determination of the court shall
             be immediately submitted to the individual, the district attorney, the
             Pennsylvania Board of Probation and Parole, the Department of
             Corrections, the board and the Pennsylvania State Police.
42 Pa.C.S. §9799.24(e).
3 In Apprendi and Alleyne, the Supreme Court of the United States held any fact, which
increases the statutory maximum penalty (Apprendi), or mandatory minimum sentence
(Alleyne), must be submitted to a jury and proven beyond a reasonable doubt.



                                     [J-89-2019] - 2
                                      I. Background

         On July 27, 2015, appellee Joseph Dean Butler pled guilty to statutory sexual

assault and corruption of minors4 after engaging in sexual intercourse with a 15-year-old

female victim on approximately 50 occasions between October 1, 2013 and June 6, 2014.

N.T. 7/27/2015 at 2. Due to his conviction for corruption of minors, SORNA required

appellee to undergo an assessment by the Sexual Offender Assessment Board (SOAB)

to evaluate whether he should be designated as an SVP and the court deferred

sentencing until the assessment was completed. Id. at 12-13. Following the procedures

outlined in Section 9799.24(e), the trial court conducted a hearing, found the

Commonwealth provided clear and convincing evidence that appellee was an SVP, and

ordered appellee be designated as such.         N.T. 5/25/16 at 10-11.   The court later

sentenced appellee to 12 to 30 months’ incarceration followed by 90 months’ probation.

N.T. 8/4/16 at 8-9. The court subsequently denied appellee’s post-sentence motions and

he appealed to the Superior Court.

         In a divided, published opinion, a three-judge panel of the Superior Court

considered, sua sponte, whether the procedure for making SVP determinations under

Section 9799.24(e)(3) violated Apprendi and Alleyne. Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017).5 The panel determined sua sponte review was necessary due

to its interpretation of Muniz as indicating appellee’s SVP determination exposed him to

an increased minimum registration requirement, and thus implicated the legality of his

sentence.6 Id. at 1214, citing Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016)

4   18 Pa.C.S. §3122.1 and 18 Pa.C.S §6301(a)(1)(ii), respectively.
5Judge Judith Ference Olson authored the opinion, which was joined by President Judge
Emeritus John T. Bender; Judge Victor P. Stabile noted his dissent.
6Based on his conviction for corruption of minors, a tier one offense under SORNA, see
42 Pa.C.S. §9799.14(b)(8), appellee would have been subject to a registration term of 15



                                      [J-89-2019] - 3
(“where the mandatory minimum sentencing authority on which the sentencing court

relied is rendered [unconstitutional], and no separate mandatory authority supported the

sentence, any sentence entered under such purported authority is an illegal sentence for

issue preservation purposes on direct appeal”). The panel majority concluded Muniz was

dispositive — without conducting any analysis regarding either the differences between

the RNC requirements and the requirements at issue in Muniz or the differences between

SVPs and other sex offenders. In doing so, the majority stated:
       [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)
       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 [S]ection 9799.24(e)(3) is unconstitutional and
       Appellant’s judgment of sentence, to the extent it required him to register as
       an SVP for life, was illegal.
Id. at 1217-18.

       The Commonwealth filed a petition for allowance of appeal in this Court and we

granted review of the following question: “Whether the Superior Court of Pennsylvania

erred in vacating the trial court’s [o]rder finding [appellee] to be [an SVP] by extrapolating

the decision in [Muniz] to declare SVP hearings and designations unconstitutional under

[Section] 9799.24(e)(3)?”     Commonwealth v. Butler, 190 A.3d 581 (Pa. 2019) (per

curiam).




years. See 42 Pa.C.S §9799.15(a)(1). However, the trial court’s SVP designation
subjected appellee to lifetime registration. See id. at (a)(6).


                                       [J-89-2019] - 4
       Briefly, the parties dispute whether the Muniz Court’s holding regarding criminal

punishment automatically applies to all individuals falling under the purview of SORNA,

including SVPs, or whether a separate analysis of the RNC requirements must be

conducted with a specific focus on SVPs. The parties also dispute whether the judicial

fact-finding required under Section 9799.24(e)(3) remains constitutionally permissible

under Oregon v. Ice, 555 U.S. 160 (2009),7 even if we find the RNC requirements

constitute criminal punishment. As we consider the arguments of the parties in greater

detail below, “we recognize there is a general presumption that all lawfully enacted

statutes are constitutional. In addition, as this case presents questions of law, our scope

of review is plenary and we review the lower courts’ legal determinations de novo.” Muniz,

164 A.3d at 1195 (internal citation omitted).

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

       We first summarize the reasoning in Williams II and Muniz as the analyses

employed in those cases will frame our discussion of whether the RNC requirements

constitute punishment.    Since we thoroughly summarized Williams II in Muniz, we

reproduce that summation here:
       In Williams II, this Court considered whether the [RNC] requirements of
       Megan’s Law II,[8] applicable to [SVPs], constituted criminal punishment
       such that their imposition on the defendants violated their rights to due
       process under the United States and Pennsylvania Constitutions. Williams
       II, 832 A.2d at 964. This Court analyzed the statute’s provisions under the
       same two-level inquiry used by the U.S. Supreme Court in Smith [v. Doe,
       538 U.S. 84 (2003)]. Id. at 971. As to the first question, whether
       the General Assembly’s intent was to punish, the Williams II Court

7 In Ice, the United States Supreme Court held the Apprendi rule applies only to facts
traditionally decided by juries under the common law at the time of the passage of the Bill
of Rights. 555 U.S. at 172.
8 Megan’s Law II was a predecessor statute to SORNA. A complete history of
Pennsylvania sex offender laws and related case law was included in our decision in
Muniz. 164 A.3d at 1196-1208.


                                      [J-89-2019] - 5
       determined the statute’s statement of purpose was clear in that its intent
       was to identify potential recidivists and avoid recidivism by providing
       awareness of particular risks to members of the public[,] and providing
       treatment to offenders. Id. at 971–72. The Court stated the statute’s
       purpose was therefore “not to punish, but to promote public safety through
       a civil, regulatory scheme.” Id. at 972.

       The Williams II Court then examined the [Kennedy v. Mendoza–Martinez,
       372 U.S. 144 (1963)9] factors to determine whether the sanctions are “so
       punitive as to transform what was clearly intended as a civil remedy into a
       criminal penalty.” Id., quoting [United States v. ]Ward, 448 U.S. [242, 249
       (1980)]. The Court first found the registration requirements of Megan’s Law
       II did not directly impose a deprivation or restraint upon [SVPs] as they
       “remain free to live where they choose, come and go as they please, and
       seek whatever employment they may desire.” Id. at 973, quoting Femedeer
       v. Haun, 227 F.3d 1244, 1250 (10th Cir. 2000). Thus, the Court held it could
       not find the clearest proof the requirements were “so onerous as to
       constitute an affirmative disability or restraint.” Williams[ II], 832 A.2d at
       975. The Court further found it was not clear the notification requirements
       of Megan’s Law II were analogous to public shaming, or other historical
       forms of punishment, as “the disclosure of factual information concerning
       the local presence of a potentially harmful individual is aimed, not at
       stigmatizing that individual, but allowing potentially vulnerable members of
       the public to avoid being victimized.” Id. at 976.

       The Court then found applicability of Megan’s Law II does not depend only
       upon a finding of scienter[10] since some predicate offenses can be
       committed whether or not the defendant is aware his conduct is
       criminal, e.g., the statute applies to the crime of sexual abuse of children,

9 In Mendoza-Martinez, the Supreme Court of the United States listed the following seven
factors as a framework for determining whether a statute is so punitive as to negate a
legislature’s intention to identify the scheme as civil or regulatory: “[w]hether 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[.]” Mendoza-Martinez, 372 U.S.
at 168-69 (footnotes omitted).
10Scienter is defined as “[a] degree of knowledge that makes a person legally responsible
for the consequences of his or her act or omission[.]” Scienter, Black’s Law Dictionary
(11th ed. 2019).


                                       [J-89-2019] - 6
where the defendant may be convicted despite the good faith belief the child
was over eighteen years of age. Id. at 977–78. The Williams II Court
further found since there was a substantial period of incarceration attached
to the predicate offenses of rape and involuntary deviate sexual
intercourse, the prospects of registration and notification would have little
deterrent effect upon [an SVP]. Id. at 978. The Court also found the
measures were not retributive as they do not “require [an SVP to] ‘pay his
debt to society,’ through the impositions of fines, restitution, or
confinement.” Id., quoting Williams v. Illinois, 399 U.S. 235, 261 [ ]
(1970) (Harlan, J., concurring).

The Williams II Court found the crucial determination of [SVP] status under
Megan’s Law II was not based upon the particular criminal conduct or crime
at issue, but instead upon a separate finding of mental abnormality or
personality disorder. Williams II, 832 A.2d at 978. The Court recognized,
however, that whether the behavior to which Megan’s Law II applies is
already a crime is of little significance in evaluating whether or not the
statute is punitive because “application to past criminal conduct is ‘a
necessary beginning point [where] recidivism is the statutory concern.’” Id.
at 979, citing Smith, 538 U.S. at 105[.]

Additionally the Court found the sixth Mendoza–Martinez factor, whether
the act has a rational connection to a nonpunitive purpose, “is a ‘[m]ost
significant’ factor in our determination that the statute’s effects are not
punitive.” Id. at 979, quoting Smith, 538 U.S. at 102[.] The Court noted
there are “grave concerns over the high risk of recidivism among convicted
sex offenders,” id. at 979, quoting Smith, 538 U.S. at 103[,] and it was
significant that most of the notification provisions in Megan’s Law II
pertained to neighbors of [SVPs], social service agencies, schools, and day
care centers. Id. The Court found concerns about information being placed
on the internet to be unwarranted because Megan’s Law II information was
available to the public only upon request. Id. at 980. The Court
distinguished Megan’s Law II from New Jersey’s sex offender statute which
specifically authorized online dissemination of offender information. Id.,
citing N.J. STAT. ANN. §§ 2C:7–12–2C:7–14. The Court concluded the
“dissemination of [SVP] information to individual members of the public,
upon request, appear[ed] to be a reasonable means chosen by the
Legislature to serve the legitimate government interest in providing persons
who may be affected by the presence of [an SVP] with the information they
need to protect themselves[.]” Id. at 981.

Finally, the Court determined Megan’s Law II’s [RNC] requirements were
not sufficiently onerous to be considered punishment based upon alleged
excessiveness. Id. at 982. Although the Court conceded it was “troubling”


                              [J-89-2019] - 7
       that the requirements last for the entire lifetime of the [SVP], and the
       legislature could avoid excessiveness claims by allowing [an SVP] to invoke
       judicial review to demonstrate he no longer poses a substantial risk, the
       Court recognized the record did not include any information concerning the
       successful treatment of [SVPs]. Id. at 982–83. Accordingly, the Williams II
       Court established the [RNC] requirements imposed on [SVPs] under
       Megan’s Law II were not punitive; thus their imposition did not violate the
       offenders' due process rights. Id. at 984.
Muniz, 164 A.3d at 1201-03 (internal footnotes omitted).

       In Muniz, we considered whether the registration requirements of SORNA

constituted criminal punishment such that their retroactive application violated the ex post

facto clauses of the United States and Pennsylvania Constitutions. Id. at 1192. To that

end, we employed the same two-level inquiry utilized in Williams II and first determined

“the General Assembly’s intent in enacting SORNA apparently was twofold: to comply

with federal law; and . . . ‘not to punish, but to promote public safety through a civil,

regulatory scheme.’” Id. at 1209-10, quoting Williams II, 832 A.2d at 972.

       Moreover, in Muniz, we considered the Mendoza-Martinez factors and found

SORNA imposed an affirmative disability or restraint upon offenders due to the onerous

in-person reporting requirements for both verification and changes to an offender’s

registration. Id. at 1211. We thus distinguished the holding in Williams II that the

counseling requirements for SVPs were not an affirmative disability or restraint because

such requirements were meant to assist SVPs and were based on a separate finding that

SVPs are in need of such counseling. Id. We also determined in Muniz that SORNA’s

requirements were analogous to historical forms of punishment, specifically holding the

statute’s “publication provisions — when viewed in the context of our current internet-

based world — to be comparable to shaming punishments” and the mandatory conditions

placed on registrants to be akin to probation. Id. at 1213.

       The Muniz Court next determined the fact SORNA comes into play only upon a

finding of scienter was of little significance to our inquiry because “past criminal conduct


                                      [J-89-2019] - 8
is ‘a necessary beginning point’” for statutes that are intended to protect the public. Id. at

1214, quoting Smith, 538 U.S. at 105. We further held in Muniz that SORNA promotes

the traditional aims of punishment as “the prospect of being labeled a sex offender

accompanied by registration requirements and the public dissemination of an offender’s

personal information over the internet has a deterrent effect.” Id. at 1215. In so holding,

we distinguished Williams II, stating there was a clear deterrent effect since, “[c]ontrary

to Megan’s Law II, as analyzed in Williams II, there is not a ‘substantial period of

incarceration attached to’ many of the predicate offenses requiring registration under

SORNA, many of which are misdemeanors or carry relatively short maximum terms of

incarceration.” Id., quoting Williams II, 832 A.2d at 978 (internal footnotes omitted). Muniz

also stated the General Assembly increased the retributive effect of SORNA as compared

to Megan’s Law II by “increas[ing] the length of registration, [adding] mandatory in-person

reporting requirements, and allow[ing] for more private information to be displayed

online.” Id. at 1216 (citation omitted). We also determined in Muniz that whether or not

the behavior to which SORNA applies is already a crime carries little weight, stating

“where SORNA is aimed at protecting the public against recidivism, past criminal conduct

is ‘a necessary beginning point.’” Id., quoting Smith, 538 U.S. at 105.

       Although recognizing “there are studies which find the majority of sexual offenders

will not re-offend, and that sex offender registration laws are ineffective in preventing re-

offense[,]” we deferred in Muniz to the General Assembly’s policy determination and

concluded the protection of the public from sex offenders “is a purpose other than

punishment to which the statute may be rationally connected and this factor weighs in

favor of finding SORNA to be nonpunitive.” Id. at 1217. Lastly, we determined SORNA’s

registration requirements were excessive and over-inclusive in relation to the statute’s

intended purpose of protecting the public; it “categorize[d] a broad range of individuals as




                                       [J-89-2019] - 9
sex offenders subject to its provisions, including those convicted of offenses that do not

specifically relate to a sexual act.” Id. at 1218. Accordingly, we held in Muniz that

SORNA’s registration requirements constituted punishment and their retroactive

application constituted a violation of the constitutional prohibition against ex post facto

laws. Id.

                                  III. RNC Requirements

       Also framing our analysis of the present appeal is the statutory scheme applicable

to SVPs. Under SORNA, those designated as SVPs are obligated to comply with the

RNC requirements for life.11 42 Pa.C.S §9799.15(a)(6). Registration requires SVPs to

appear in person every three months to be photographed and to verify compliance with

their obligations, as well as an in-person appearance to report any changes to their

registration information within three days of the change. 42 Pa.C.S. §9799.15(f)-(g).

SVPs must submit to the registry their names, residential addresses, IP addresses, phone

numbers, social security numbers, employer information, professional licensing

information, vehicle information, and birthdates. 42 Pa.C.S. §9799.16(b). Failure to

comply with the registration requirements is a criminal offense, which is graded as a first

or second-degree felony. 18 Pa.C.S. §4915.1(c).

11 Following our decision in Muniz and the Superior Court’s decision in the present case,
the General Assembly passed Act 10 of 2018, which divided SORNA into two
subchapters. Subchapter H is based on the original SORNA statute and is applicable to
offenders, like appellee, who committed their offenses after the December 20, 2012
effective date of SORNA; Subchapter I is applicable to offenders who committed their
offenses prior to the effective date of SORNA and to whom the Muniz decision directly
applied. The only relevant change with regard to SVPs under Subchapter H is the
addition of a provision allowing SVPs, and other lifetime registrants, to petition for removal
from the registry after 25 years. See 42 Pa.C.S. §9799.15(a.2). The General Assembly
later passed Act 29 of 2018, which replaced Act 10 but made no relevant changes to
Subchapter H regarding the statutory scheme applicable to SVPs. Appellee is now
subject to the Act 29 version of Subchapter H due to his SVP designation, and as a result
we consider the removal provision in our analysis. For clarity, we use “Subchapter H”
when referring to portions of the statute other than the RNC requirements.


                                      [J-89-2019] - 10
      Following an SVP’s initial registration, the local police must notify the SVP’s victim

regarding the SVP’s name, residence, address of employment, and any address at which

the SVP is enrolled as a student. 42 Pa.C.S. §9799.26(a)(1). Local police must also

notify neighbors, the local county’s children and youth agency director, local school

superintendents, local day-care centers and preschool programs, and local colleges and

universities regarding the SVP. 42 Pa.C.S. §9799.27(b). Such notice must provide the

SVP’s name, address, offense for which the SVP was convicted, a statement that the

individual has been determined to be an SVP, and a photograph of the SVP. 42 Pa.C.S.

§9799.27(a).

      SVPs are also required to attend monthly counseling sessions in a program

approved by the SOAB and are financially responsible for the fees associated with such

counseling unless the SVP can prove he or she is unable to make such payments. 42

Pa.C.S. §9799.36(a).      SVPs must verify their compliance with the counseling

requirements during their quarterly in-person verification, 42 Pa.C.S. §9799.15(f)(3), and

failure to comply with the counseling requirement is a criminal offense, which is graded

as a first-degree misdemeanor, 18 Pa.C.S. §4915.1(c.3).

                                     IV. Arguments

      The Commonwealth argues the lower court erred in extrapolating from Muniz to

declare SVP designations unconstitutional pursuant to Apprendi and Alleyne because

“statutes pertaining to [SVPs] are subject to their own independent body of case law, and

the guidance from these cases instructs that the government is empowered to address

the heightened danger posed by SVPs through measures beyond those imposed on non-

SVPs without the resulting approach constituting criminal punishment.” Commonwealth’s

Brief at 28. In doing so, the Commonwealth relies on Kansas v. Hendricks, 521 U.S. 346

(1997), in which the Supreme Court of the United States held a Kansas statute permitting




                                     [J-89-2019] - 11
the indefinite civil commitment of SVPs did not constitute criminal punishment because

the statute required both proof of future dangerousness and a mental abnormality. Id. at

29-30.       The Commonwealth contends although the RNC requirements exceed the

requirements placed upon the non-SVPs at issue in Muniz, “they are more than justified

and in stark contrast to the confinement system in Hendricks.”         Id. at 32.   The

Commonwealth further argues Hendricks, as well as Muniz and Williams II, support the

principle that “SVPs are different” due to the “heightened public safety concerns” they

present, such that the more-onerous RNC requirements do not constitute punishment.

Id. at 33.

         As such, the Commonwealth contends Muniz does not control here and we must

proceed to an independent analysis of whether the RNC requirements constitute criminal

punishment. Id. To that end, the Commonwealth argues the General Assembly intended

Subchapter H to be a civil regulatory scheme, as opposed to a criminal punitive scheme.

Id. at 34, citing 42 Pa.C.S. §9799.11(b)(2) (Subchapter H “shall not be construed as

punitive”). Accordingly, the Commonwealth insists we may find the RNC requirements

unconstitutional only if the statute is “so punitive in effect that it overcomes the

legislature’s stated purpose.” Id. at 35.

         In order to demonstrate the RNC requirements are not punitive, the

Commonwealth analyzes them using the Mendoza-Martinez factors. With regard to the

first factor, the Commonwealth contends the RNC requirements do not impose an

affirmative disability or restraint though the monthly counseling requirements are more

demanding than the requirements at issue in Muniz because, as this Court stated in both

Williams II and Muniz, the counseling requirement is designed to assist SVPs from

relapsing into sexually predatory behavior. Id. at 38, citing Muniz, 164 A.3d at 1211-12

and Williams II, 832 A.2d at 975.           The Commonwealth argues Muniz specifically




                                     [J-89-2019] - 12
recognized this distinction and, accordingly, did not disturb the Williams II Court’s finding

that “SVPs are ‘free to live where they choose, come and go as they please, and seek

whatever employment they may desire.’” Id., quoting Williams II, 832 A.2d at 973 (internal

quotations omitted). This distinction in Muniz, the Commonwealth claims, “reflects that

SVPs are subject to a distinct statutory scheme[.]”          Id. at 39.    Additionally, the

Commonwealth argues the RNC requirements are much less restrictive than the civil

commitments used in other states, see Hendricks, supra, and the absence of treatment,

which was a concern of the Hendricks Court, is not an issue here because of the monthly

counseling requirement. Id. at 40.

       The Commonwealth also argues the RNC requirements are not comparable to

historical forms of punishment, such as probation and public shaming. With regard to

probation, the Commonwealth contends that unlike the requirements for non-SVPs, the

RNC requirements are independent from the underlying conviction and instead “seek to

address SVPs’ compulsion to commit sexually violent offenses[.]” Id. at 41. In support of

this argument, the Commonwealth again references the far more restrictive civil

commitment requirements used in other jurisdictions, which the High Court held do not

constitute punishment. Id., citing Hendricks, supra and Seling v. Young, 531 U.S. 250

(2001) (Washington state civil commitment requirement for SVPs does not constitute

punishment).    The Commonwealth also refers to the declaration in Williams II that

“counseling provisions applicable to SVPs [are not] historically analogous to punishment

because ‘counseling does not serve punitive ends notwithstanding its use as a condition

of probation or parole.’” Id. at 42, quoting Williams II, 832 A.2d at 977. Additionally, the

Commonwealth notes that the RNC requirements are unlike probation because the

purpose of protecting the public is not effectuated “by monitoring SVPs in some fashion

comparable to probation, but by making information available to the public who, at their




                                      [J-89-2019] - 13
own initiative, may act to protect themselves from the potential risks posed by the SVP.”

Id. at 45. The Commonwealth further argues, with respect to public shaming, Muniz was

flawed because the essential features of shaming are absent from the online registry; the

registry is intended to inform the public, does not provide a mechanism for users to shame

registrants, and requires the public to affirmatively seek out the information. Id. at 51-52.

The Commonwealth further requests, should we be inclined to follow this aspect of the

Muniz holding, that we “should afford nominal weight to this consideration in determining

whether the RNC requirements” constitute punishment. Id.

       The Commonwealth recognizes Muniz placed little significance on whether the

non-SVP requirements were triggered by a finding of scienter because statutes seeking

to protect the public against recidivism must necessarily be based upon a criminal

conviction. Id. at 57. However, the Commonwealth contends the RNC requirements are

different since they are imposed based upon a mental abnormality or personality disorder

rather than criminal intent. Id., citing Williams II, 832 A.2d at 978 (internal citations and

quotations omitted). Accordingly, the Commonwealth argues this factor weighs in favor

of ruling the RNC requirements are nonpunitive.

       The Commonwealth further argues the difference between SVPs and non-SVPs

should compel this Court to conclude the RNC requirements do not promote retribution

and deterrence. With regard to deterrence, the Commonwealth contends SVPs are

unlikely to be deterred due to their mental abnormality or personality disorder. Id. at 58,

citing Williams II, 832 A.2d at 978 (internal citation omitted). The Commonwealth claims

the RNC requirements seek to prevent recidivism, not through deterrent threats of

punishment, but through counseling and notification to the public. Id. at 59. Relatedly,

the Commonwealth contends the concerns of the Muniz Court regarding less serious

offenses do not apply here since offenders are designated as SVPs following a thorough




                                      [J-89-2019] - 14
assessment, which is not linked to the underlying offense. Id. at 61. As for retribution,

the Commonwealth argues we should hold “any retributive effect associated with the SVP

scheme ‘is ancillary to the results achieved in terms of societal awareness and self-

protection, and rehabilitation of the offender.’” Id. at 61-62, quoting Williams II, 832 A.2d

at 978.

       The Commonwealth claims, unlike in Muniz, whether the behavior to which the

statute applies is already a crime is a significant factor when applied to SVPs. Id. at 62.

The Commonwealth contends this factor “illustrates how an SVP designation results from

a determination that they possess a certain mental condition or behavior disorder, not

from the mere fact of conviction.” Id. In support thereof, the Commonwealth again relies

on Williams II, which stated SVP status does “‘not appl[y] to conduct at all, but to an

individual’s status as suffering from a serious psychological defect.’” Id., quoting Williams

II, 832 A.2d at 978. Because “the RNC requirements for SVPs serve to address the SVP’s

condition or disorder apart from the severity or circumstances of their underlying

offense[,]” the Commonwealth argues the Muniz analysis does not apply and this factor

supports a finding the RNC requirements do not constitute punishment.               Id. at 63.

       The Commonwealth further posits we should find the RNC requirements are

rationally connected to their nonpunitive purpose — the protection of the public — just as

we did regarding the requirements at issue in Muniz and Williams II. Id. at 63-64, citing

Muniz, 164 A.3d at 1216-17 (internal citations omitted) and Williams II, 832 A.2d at 979

(internal citations omitted). The Commonwealth observes this is a “‘most significant factor

in our determination that the statute’s effects are not punitive.’” Id. at 64, quoting Williams

II, 832 A.2d 979 (internal citations and quotations omitted).           The Commonwealth

additionally asserts the RNC requirements are “proportional to the General Assembly’s

nonpunitive purpose in creating [the] SVP scheme.” Id. at 64. In support of this argument,




                                      [J-89-2019] - 15
the Commonwealth claims we should consider the RNC requirements in light of the

involuntary commitment statute, which was found not to constitute punishment in

Hendricks, and conclude the SVP scheme is “neatly tailored to address the Legislature’s

intent while allowing SVPs to otherwise live a free and unrestricted life.” Id. at 65. The

Commonwealth asserts the discussion in Muniz regarding this factor does not apply here

because Muniz was concerned with the over-inclusive nature of the entire SORNA

statute, which encompassed a broad range of crimes, rather than focusing on the SVP

scheme only. Id., quoting Muniz, 164 A.3d at 1218 (“we do not analyze excessiveness

as applied only to [Muniz] or [SVPs], but instead we examine SORNA’s entire statutory

scheme”).    As such, the Commonwealth argues we should follow the reasoning of

Williams II to hold the RNC requirements “‘appear reasonably designed to serve the

government’s legitimate goal of enhancing public awareness and ensuring that offenders

do not relapse into harmful behavior.’” Id. at 66, quoting Williams II, 832 A.2d at 981. The

Commonwealth insists the RNC requirements at issue here are less excessive than those

in Williams II; Williams II involved lifetime registration without future judicial review, id. at

67-68, citing Williams II, 832 A.2d at 982, while SVPs are now afforded a mechanism for

future relief from the RNC obligations. Id. at 68, citing 42 Pa.C.S. §9799.15(a.2). Based

on the above, the Commonwealth contends the application of the Mendoza-Martinez

factors proves the RNC requirements do not constitute criminal punishment. Id. at 69.

       Alternatively, the Commonwealth argues, even if the RNC requirements are

punitive, the judicial fact-finding required under Section 9799.24(e)(3) remains

constitutionally permissible under Oregon v. Ice, which held the Apprendi rule applies only

to facts traditionally decided by juries under the common law at the time of the passage

of the Bill of Rights. Id. at 70. To that end, the Commonwealth cites to People v. Mosley,

344 P.3d 788 (Ca. 2015), which relied on Ice to hold the assessment and designation of




                                       [J-89-2019] - 16
SVPs is a recent phenomenon unrelated to any common law jury tradition and thus

Apprendi and Alleyne are inapposite. Id. at 75. The Commonwealth contends this is no

different in Pennsylvania where the SVP system is a legislative creation disassociated

from the common law. Id. at 76-77. The Commonwealth further argues the types of facts

at issue during an SVP hearing, such as an offender’s character, mental and emotional

condition, history of sexual misconduct, and aggravating circumstances of such

misconduct are not the type of facts traditionally within the purview of the jury. Id. at 79.

Accordingly, the Commonwealth argues Apprendi and Alleyne are inapplicable to the

SVP determination scheme at issue.12

       In response, appellee argues the Superior Court’s decision below was proper in

light of Muniz and aligns with Williams II, which stated the SVP determination process

could not “‘surmount Apprendi if such finding results in further criminal punishment.’”

Appellee’s Brief at 19-20, quoting Williams II, 832 A.2d at 968-69. Appellee contends the

entirety of Subchapter H, including the SVP scheme, remains punishment under Muniz

and we should not accept the argument of the Commonwealth, which “makes every effort

in its constitutional rebalancing to make the entirety of [Subchapter H] non-punitive.” Id.

at 25. Appellee also claims that Hendricks and Seling are inapposite because the statutes

at issue in those cases required a jury determination that an offender was an SVP beyond

a reasonable doubt, unlike Subchapter H. Id. at 26-28. Appellee further argues that the

changes to Subchapter H in Act 10 and Act 29, including the relief mechanism codified at


12 The Pennsylvania Coalition Against Rape and The Pennsylvania Office of Victim
Advocate filed amici curiae briefs on behalf of the Commonwealth, which focus on public
policy arguments regarding the impact a decision in favor of appellee would have on
victims of sexual crimes. Crimewatch Technologies, Inc. also filed an amicus curiae brief
on behalf of the Commonwealth, which focuses on the interactive nature of the online
registry, which requires a user entering the website to accept terms of use before
accessing registry information rather than retrieving the information through search
engines.


                                      [J-89-2019] - 17
Section 9799.15(a.2), did not render Subchapter H nonpunitive as the statute continues

to require strict compliance and its enforcement provisions remain in the crimes code. Id.

at 30-36.

         Appellee recognizes the General Assembly purportedly intended Subchapter H to

be nonpunitive, but appellee claims it did so because “that’s the only way the statutory

structure for SVPs has a chance to remain constitutional[,]” and this Court must therefore

look at the law’s “actual punitive effects.” Id. at 36. (emphasis omitted). Appellee argues

we should reject the Commonwealth’s attempt to diminish the “importance and effect” of

Muniz by conducting a new Mendoza-Martinez analysis, which will ultimately lead to

“back-track[ing]” from Muniz “and return[ing] to the previous findings in [Williams II].” Id.

at 38. Although appellee does not undertake a complete SVP-focused Mendoza-Martinez

analysis, he does argue the RNC requirements are directly comparable to probation

because SVPs can be immediately prosecuted for failing to register or attend counseling

and the Commonwealth’s arguments to the contrary conflict with Muniz.             Id. at 41.

According to appellee, because there is a monthly counseling requirement, the RNC

requirements are “much more akin to probation than [the] mere information gathering

process” at issue in Muniz. Id. at 42. Appellee also argues the RNC requirements are

intended to deter SVPs from reoffending by forcing them into strict compliance with the

statute. Id. at 43. As to the remaining Mendoza-Martinez factors, appellee contends we

should rely on Muniz to find the RNC requirements constitute criminal punishment. Id. at

42-44.

         With regard to the Commonwealth’s alternative argument under Ice that Apprendi

and Alleyne are inapplicable to SVP determinations, appellee first argues “the

Commonwealth completely ignores this Honorable Court’s previous recognition in 2003

that, ‘[b]ecause a determination of [SVP] status pursuant to Megan’s Law II is submitted




                                      [J-89-2019] - 18
to a judge and may be established by a lesser degree of proof . . . it cannot surmount

Apprendi if such finding results in further criminal punishment.” Id. at 44-45, quoting

Williams II, 832 A.2d at 968-69. Appellee additionally argues Ice is a case about judicial

sentencing authority and discretion regarding whether to run criminal sentences

consecutively, and reliance on Ice “would be a misuse of federal precedent[.]” Id. at 45.

Lastly, appellee contends an SVP designation implicates a number of inherent rights

contained in the Pennsylvania Constitution, including the right to reputation, all of which

“existed at the time of the signing of the Bill of Rights and continue to exist and apply with

the same force today[,]” and Ice “does not change, limit, or modify this especially on state

law grounds.” Id. at 52. Accordingly, appellee argues the SVP designation process “must

include, at a bare minimum, probable cause determinations and a jury empaneled [to

make] determinations beyond a reasonable doubt.” Id. at 53.

       In a reply brief, the Commonwealth address five points. First, the Commonwealth

notes it does not, as appellee claims, attempt to make the entirety of Subchapter H

nonpunitive but instead argues the exact opposite: the RNC requirements are not punitive

because “SVPs raise markedly different constitutional concerns than the non-SVP sex

offenders discussed in [Muniz].”      Commonwealth’s Reply Brief at 1.          Second, the

Commonwealth rejects appellee’s claim the Williams II Court predicted constitutional

infirmities with the SVP process if the non-SVP requirements of a sex offender statute

were deemed punitive, like in Muniz; the Commonwealth explains the Williams II Court

was concerned only with the punitive nature of the RNC requirements under Megan’s

Law II, and the question of “whether treatment of SVPs under a given law constitutes

punishment is subject to a body of precedent independent from that governing sex

offenders generally[.]” Id. at 4. Third, the Commonwealth rejects appellee’s claim that

Hendricks is inapplicable because the statute at issue there contained due process




                                      [J-89-2019] - 19
protections. Id. at 5. To that point, the Commonwealth claims appellee conflates the

question of whether a sanction is punitive with whether the SVP designation process

satisfies due process; the presence of procedural safeguards does not affect whether the

underlying sanction is punitive and the Supreme Court of the United States has upheld

involuntary commitment statutes using the clear and convincing standard. Id. at 6, citing

Addington v. Texas, 441 U.S. 418 (1979). Fourth, the Commonwealth contends Ice and

other Apprendi-related cases are binding precedent here even though a Pennsylvania

statute is at issue because appellee has failed to raise a claim that the Pennsylvania

Constitution “affords some greater jury trial right comparable to the federal right

underlying Apprendi.” Id. at 9. Finally, the Commonwealth claims appellee’s due process

and reputation claims are not before this Court since they do not relate to the question of

whether Section 9799.24(e)(3) is governed by the Apprendi rule. Id. at 11.

                                      VI. Analysis

       The threshold question for determining whether Apprendi and Alleyne are relevant

to a constitutional analysis of Section 9799.24(e)(3) is whether the RNC requirements

applicable to SVPs constitute criminal punishment. See Commonwealth v. Lee, 935 A.2d

865, 880 (Pa. 2007) (Apprendi claims cannot succeed where sanctions do not constitute

punishment). Preliminarily, we agree with the Commonwealth’s assertion that SVPs are

different from the non-SVP SORNA registrants at issue in Muniz due to heightened public

safety concerns based on the determination SVPs have “a mental abnormality or

personality disorder that makes the individual likely to engage in predatory sexually

violent offenses.” 42 Pa.C.S. §9799.12. Therefore, a simple extrapolation from the

analysis in Muniz is insufficient to determine whether the RNC requirements constitute

criminal punishment. We must therefore conduct a separate examination of the RNC

requirements using the two-part inquiry employed in both Williams II and Muniz:




                                     [J-89-2019] - 20
       We first consider whether the General Assembly’s “intent was to impose
       punishment, and, if not, whether the statutory scheme is nonetheless so
       punitive either in purpose or effect as to negate the legislature’s non-
       punitive intent.” If we find the General Assembly intended to enact a civil
       scheme, we then must determine whether the law is punitive in effect by
       considering the Mendoza-Martinez factors. We recognize only the “clearest
       proof” may establish that a law is punitive in effect. Furthermore, in
       determining whether a statute is civil or punitive, we must examine the law’s
       entire statutory scheme.
Muniz, 164 A.3d at 1208, quoting Williams II, 832 A.2d at 971.

                           A. Intent of the General Assembly

       The parties apparently agree that the General Assembly’s stated intention is that

Subchapter H of SORNA and the RNC requirements are nonpunitive in nature. See

Commonwealth’s Brief at 34 (“The Legislature was explicit in stating the statute ‘shall not

be construed as punitive,’ 42 Pa.C.S. §9799.11(b)(2), and the intent to create a civil

statute here is no less clear than with prior statutes.”); Appellee’s Brief at 36 (“The

Commonwealth asserts that ‘the General Assembly intended [Subchapter H] not to be

punitive, but remedial and civil in nature.’ Of course it does, . . . [t]he General Assembly

has   always    held   this   non-punitive   position[.]”)   (emphasis   added),    quoting

Commonwealth’s Brief at 34. Our review reveals this position is correct.

       In analyzing the General Assembly’s purpose in enacting Subchapter H, we

recognize “[t]his 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

at 1209 (internal citations and quotations omitted). The expressed purpose, legislative

findings, and declaration of policy of Subchapter H are nearly identical to those in the

original SORNA statute. The General Assembly expressly maintains the statute “provides

a mechanism for the Commonwealth to increase its regulation of sexual offenders in a

manner which is nonpunitive but offers an increased measure of protection to the citizens



                                     [J-89-2019] - 21
of this Commonwealth[,]” 42 Pa.C.S §9799.11(a)(2), and that “the exchange of relevant

information about sexual offenders . . . [is] a means of assuring public protection and

shall not be construed as punitive.” 42 Pa.C.S. §9799.11(b)(2). The first listed purpose

of the statute remains “[t]o bring the Commonwealth into substantial compliance with the

[federal] Adam Walsh Child Protection and Safety Act of 2006.” 42 Pa.C.S. §9799.10(1).

One relevant modification to the existing declaration of policy is the General Assembly’s

stated intention that Subchapter H would “address the Pennsylvania Supreme Court’s

decision in [Muniz] and the Pennsylvania Superior Court’s decision in [Butler].” 42

Pa.C.S. §9799.11(b)(4).

       Notwithstanding the concerns expressed in Muniz regarding the General

Assembly’s stated intent, see Muniz, 164 A.3d at 1209 (“the act encompasses a much

broader class of offenders than Megan’s Law II, and includes relatively minor offenses

within its net; the act is codified within the sentencing section of the Crimes Code; and

the acts vests regulatory authority with the state police”), we nevertheless observe that

“[n]othing in the expressed purpose, legislative findings, or declaration of policy of

[Subchapter H] explicitly states the legislature intended the law to do anything other than

create a remedial civil scheme to comply with federal legislation and protect the public.”

Id. As such, we find the purpose behind Subchapter H is “not to punish, but to promote

public safety through a civil, regulatory scheme[,]” Williams II, 832 A.2d at 972, and to

comply with federal law while also addressing the constitutional concerns raised by this

Court in Muniz.

                             B. Mendoza-Martinez Factors

       We next consider the Mendoza-Martinez factors to determine whether the RNC

requirements in Subchapter H of SORNA are sufficiently punitive in effect to overcome

the General Assembly’s stated nonpunitive purpose. Williams II, 832 A.2d at 971.




                                     [J-89-2019] - 22
       i. Whether the Sanction Involves an Affirmative Disability or Restraint

       Although in Muniz we distinguished Williams II by noting the counseling

requirement SORNA placed upon SVPs is not an affirmative disability or restraint, we also

held “the in-person reporting requirements, for both verification and changes to an

offender’s registration, to be a direct restraint upon [Muniz] and [held] this factor weigh[ed]

in favor of finding SORNA’s effect to be punitive.” Muniz, 164 A.3d at 1211. We are

constrained to make the same finding here with regard to the RNC requirements because

SVPs are subject to the same exact reporting requirements as the Tier III offenders at

issue in Muniz. See id. (discussing Tier III offender being required to report in person

both quarterly and to report changes to registration information); 42 Pa.C.S. §9799.15(f)-

(g) (requiring SVPs to report in person quarterly and to report changes to registration

information). It is important to note, however, that merely placing affirmative disabilities

or restraints on SVPs “does not inexorably lead to the conclusion that the government

has imposed punishment . . . [as t]he State may take measures to restrict the freedom of

the dangerously mentally ill[, which] is a legitimate nonpunitive governmental objective




                                      [J-89-2019] - 23
and has been historically so regarded.”13 Hendricks, 521 U.S at 363 (internal citation and

quotation omitted).14

     ii. Whether the Sanction has been Historically Regarded as a Punishment

       Our decision in Muniz also compels the conclusion that the RNC requirements are

comparable to probation. Our reasoning from Muniz is as follows:
       [T]he mandatory in-person verification requirement in Section 9799.15(e)
       not only creates an affirmative restraint upon [Muniz], 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, these disparities must be considered.

       In 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

13 In this regard, we agree with Justice Mundy “that our Court has drawn a distinction
between treatment of [SVPs] and [non-SVPs], finding that the former may be subject to
more onerous requirements by nature of their diagnoses with a dangerous mental
abnormality.” Concurring Opinion, slip op. at 3. Indeed, the distinction between SVPs
and non-SVPs is the basis of our decision today. However, this distinction matters little
when considering whether the RNC requirements constitute an affirmative disability or
restraint; our consideration of this factor is focused upon the effects of the statute rather
than the individual’s mental state or dangerousness. Smith, 538 U.S. at 99-100 (“We next
consider whether the Act subjects respondents to an affirmative disability or restraint.
Here, we inquire how the effects of the Act are felt by those subject to it. If the disability
or restraint is minor and indirect, its effects are unlikely to be punitive.”) (internal citations
and quotations omitted). Further, we recognize the RNC requirements are nearly
identical to the requirements considered in Williams II; nonetheless, the RNC
requirements are actually identical to the Tier III requirements discussed in Muniz, which,
as stated above, constrains our analysis of this factor.
14 We agree with the Commonwealth that Hendricks is relevant to our analysis. In
determining the Kansas civil commitment statute did not constitute criminal punishment,
the High Court focused, as we do here, on the sanction employed by the statute —
involuntary commitment in that case — rather than the due process safeguards provided
by the statute. See Hendricks, 521 U.S. 364.


                                        [J-89-2019] - 24
      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
      noncompliance 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 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.

Muniz, 164 A.3d at 1213 (internal brackets omitted), quoting Commonwealth v. Perez, 97

A.3d 747, 763-64 (Pa. Super. 2014) (Donohue, J., concurring). SVPs under Subchapter

H are subject to the same in-person reporting requirements as the Tier III offenders at

issue in Muniz and SVPs also face incarceration for failure to comply with the RNC

requirements. See 18 Pa.C.S. §4915.1(c) (failure to comply with registration requirement

graded as first or second-degree felony); id. at (c.3) (failure to comply with counseling

requirement graded as first-degree misdemeanor).          As such, we find the RNC

requirements are akin to probation.15


15However, we do not consider the counseling requirement, in and of itself, as akin to
probation or any other historical form of punishment. Although counseling can be a
condition of probation, see 42 Pa.C.S. §9763(b)(4), we have held “counseling does not
serve punitive ends notwithstanding its use as a condition of probation or parole” and



                                    [J-89-2019] - 25
       We also remain cognizant that the online registry, which is disseminated

worldwide, “‘exposes registrants[, SVPs included,] to ostracism and harassment’” and is

comparable to public shaming. Muniz, 164 A.3d at 1212, quoting Perez, 97 A.3d at 765-

66 (Donohue, J., concurring). We based our holding in Muniz on our view that “‘the

extended registration period and the worldwide dissemination of registrants’ information

authorized by SORNA now outweighs the public safety interest of the government so as

to disallow a finding that it is merely regulatory.’” Id. However, we recognize there are

heightened public safety concerns applicable to SVPs that were not at issue in Muniz. In

addition, Subchapter H provides a mechanism for SVPs to procure their removal from the

registry after 25 years. Based upon these important differences, we do not view the

similarity of the online registry and notification requirements to traditional public shaming

as heavier in the balance than the government’s interest in promoting public safety with

regard to SVPs, such that the statutory requirements constitute criminal punishment. We

therefore conclude this factor does not weigh as heavily towards finding the provisions

punitive as it did in Muniz.

      iii. Whether the Sanction Comes into Play Only on a Finding of Scienter

       Our analysis of this factor in the present case is necessarily distinguishable from

Muniz. In Muniz, we held the question of scienter made little difference because past

criminal conduct is a necessary beginning point for all registration statutes such as

SORNA. By comparison, although a criminal conviction is also the necessary beginning

point for the SVP determination process, the imposition of the RNC requirements is not

based upon criminal conduct at all. Instead, the “‘determination is made based on a

mental abnormality or personality disorder rather than one’s criminal intent.’” Williams II,


“counseling, by its very nature, is rehabilitative and not retributive.” Williams II, 832 A.2d
at 977.


                                      [J-89-2019] - 26
832 A.2d at 978, quoting Hendricks, 521 U.S. at 362 (internal quotations omitted).

Accordingly, the RNC requirements are not triggered on the basis of a finding of scienter

and this factor thus weighs in favor of finding the requirements are nonpunitive.

   iv. Whether the Operation of the Sanction Promotes the Traditional Aims of
                   Punishment — Retribution and Deterrence

       Although we recognize the RNC requirements are meant to prevent SVPs from

committing additional sexual crimes, we agree with the Commonwealth that such

recidivism is obviated through the counseling and public notification provisions of

Subsection H rather than through deterrent threats; the distinction responds to the

understanding that SVPs, who cannot control their behavior due to a mental abnormality

or personality disorder, are unlikely to be deterred from re-offending even by threats of

confinement.    Williams II, 832 A.2d at 978, citing Hendricks, 521 U.S. at 362.

Furthermore, unlike the reporting requirements at issue in Muniz, which applied to some

less serious or non-sexual offenses, the RNC requirements are not connected to any

offense at all, but are instead based upon a subsequent finding of a mental abnormality

or personality disorder. As such, we conclude the RNC requirements do not promote

deterrence. We reach the same conclusion with respect to retribution, which “affixes

culpability for prior criminal conduct[.]” Muniz, 164 A.3d at 1215 (internal quotation and

citation omitted). In Muniz, we based our finding of a retributive purpose in part on the

fact that the “SORNA [requirements are] applicable only upon a conviction for a predicate

offense.” Id. Because the RNC requirements are not imposed on conviction, but rather

after a determination of SVP status, we conclude they do not promote retribution.

Accordingly, this factor weighs in favor of finding the RNC requirements to be nonpunitive.

    v. Whether the Behavior to which the Sanction Applies is Already a Crime




                                     [J-89-2019] - 27
       Our analysis of this factor also significantly differs from our analysis in Muniz,

where we concluded it held little weight. Again, although a criminal conviction is a

necessary starting point for the SVP determination process, the RNC requirements are

“not applied to conduct at all, but to an individual’s status as suffering from a serious

psychological defect[,]” Williams II, 832 A.2d at 978, such that “the individual [is] likely to

engage in predatory sexually violent offenses.” 42 Pa.C.S. §9799.12. We conclude this

factor weighs in favor of finding the RNC requirements to be nonpunitive.

  vi. Whether there is an Alternative Nonpunitive Purpose to which the Sanction
                           may be Rationally Connected

       This Court has previously stated “[t]he Act’s rational connection to a nonpunitive

purpose is a most significant factor in our determination that the statute’s effects are not

punitive.” Williams II, 832 A.2d at 979 (internal citation and quotation omitted). In Muniz,

we recognized there are conflicting studies regarding the recidivism rate among sexual

offenders and whether sex offender registration laws are effective in preventing

recidivism. Muniz, 164 A.3d at 1217. Due to this conflict, we ultimately deferred to the

General Assembly’s findings that “‘[s]exual offenders pose a high risk of committing

additional sexual offenses and protection of the public from this type of offender is a

paramount governmental interest.” Id., quoting 42 Pa.C.S. §9799.11(a)(4). In any event,

the apparent conflict in these studies is not relevant here because there is no dispute

regarding the heightened public safety concerns applicable to SVPs — individuals who

underwent individual assessments that led to a finding they are highly likely to reoffend

due to a mental abnormality or personality disorder. Under these circumstances specific

to SVPs, “reason dictates” the government should have information about the location of

SVPs and the ability to share that information with the community for its protection, while

also providing counseling to SVPs as a preventive measure against recidivism. Williams

II, 832 A.2d at 979. Accordingly, we conclude there is a rational connection between the


                                      [J-89-2019] - 28
RNC requirements and the government’s interest in protecting the public from SVPs, and

this factor weighs in favor of finding the requirements are nonpunitive.

    vii. Whether the Sanction Appears Excessive in Relation to the Alternative
                               Purpose Assigned

       Our analysis of this factor also departs from Muniz, where we expressed concerns

that SORNA was “over-inclusive” in its “categoriz[ation of] a broad range of individuals as

sex offenders subject to its provisions, including those convicted of offenses that do not

specifically relate to a sexual act.” Muniz, 164 A.3d at 1218. Over-inclusiveness is not

at issue here because the RNC requirements apply only to SVPs who have been

individually determined to suffer from a mental abnormality or personality disorder such

that they are highly likely to continue to commit sexually violent offenses. With this

difference in mind, we find that the RNC requirements “appear reasonably designed to

serve the government’s legitimate goal of enhancing public awareness and ensuring that

offenders do not relapse into harmful behavior. Counseling serves the rehabilitative and

prophylactic purposes subsumed by that goal, and the registration/notification measures

appear calculated to advance appropriate public awareness.” Williams II, 832 A.2d at

981. This is especially so with regard to SVPs and the attendant heightened public safety

concerns; “the state’s interest in protecting the public against [SVPs] is so great that it

justifies the adverse effects” the RNC requirements may have upon the individual. Id. at

982. Furthermore, the statutory scheme of Subchapter H is even less problematic than

the scheme we deemed not excessive in Williams II because SVPs may now petition for

removal from the registry after 25 years.      Compare 42 Pa.C.S. §9799.15(a.2) with

Williams II, 832 A.2d at 982-83 (“Still, one of the most troubling aspects of the statute is

that the period of registration, notification, and counseling lasts for the [SVP’s] entire

lifetime.   A reasonable argument could be made that, to avoid excessiveness, the

Legislature was required to provide some means for a[n SVP] to invoke judicial review in


                                     [J-89-2019] - 29
an effort to demonstrate that he no longer poses a substantial risk to the community.”).

We therefore conclude this factor weighs in favor of finding the RNC requirements

nonpunitive.

                               viii. Balancing of Factors

      Although we recognize the RNC requirements impose affirmative disabilities or

restraints upon SVPs, and those requirements have been historically regarded as

punishment, our conclusions in this regard are not dispositive on the larger question of

whether the statutory requirements constitute criminal punishment. This is especially so

where the government in this case is concerned with protecting the public, through

counseling and public notification rather than deterrent threats, not from those who have

been convicted of certain enumerated crimes, but instead from those who have been

found to be dangerously mentally ill.      Hendricks, 521 U.S at 362-63.        Under the

circumstances, and also because we do not find the RNC requirements to be excessive

in light of the heightened public safety concerns attendant to SVPs, we conclude the RNC

requirements do not constitute criminal punishment.

                                     VII. Conclusion

      As we have found the RNC requirements applicable to SVPs do not constitute

criminal punishment, appellee’s claim the principles set forth in Apprendi or Alleyne have

been violated by enforcement of the requirements of Section 9799.24(e)(3) necessarily

fails. See Lee, 935 A.2d at 880 (Apprendi claims cannot succeed where sanctions do not

constitute punishment).16   Accordingly, we reverse the order of the Superior Court


16 We need not reach the Commonwealth’s claim under Ice that Apprendi and Alleyne do
not apply to the Section 9799.24(e)(3) determination because it does not involve facts
traditionally decided by juries under the common law at the time of the passage of the Bill
of Rights.


                                     [J-89-2019] - 30
vacating the trial court’s SVP order and remand for consideration of appellee’s claims that

were raised and not addressed below.

      Chief Justice Saylor and Justices Baer, Todd, Donohue and Wecht join this

opinion.

      Justice Mundy files a concurring opinion.




                                     [J-89-2019] - 31
