J-S55018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: A.C.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: A.C.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 287 WDA 2019

               Appeal from the Order Entered January 29, 2019
     In the Court of Common Pleas of Butler County Civil Division at No(s):
                             M.D. No. 04-40311


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                               FILED JULY 1, 2020

        In this appeal, A.C. raises challenges under the Pennsylvania and United

States Constitutions to the Court-Ordered Involuntary Treatment of Certain

Sexually Violent Persons Statute (“Act 21”), 42 Pa.C.S.A. §§ 6401-6409. He

has appealed from the order granting the Commonwealth’s motion to review

commitment and ordering that he is to remain committed to the Pennsylvania

Sexual Responsibility and Treatment Program at Torrance State Hospital for

an additional year. We affirm.

        A.C. was adjudicated delinquent for multiple counts of involuntary

deviate sexual intercourse and indecent assault. In December 2004, the trial

court found by clear and convincing evidence that A.C. met the criteria for civil

commitment pursuant to 42 Pa.C.S.A. § 6403 and ordered A.C. committed to

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*   Retired Senior Judge assigned to the Superior Court.
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involuntary treatment for one year. Every year since his involuntary

commitment, the trial court has held annual review hearings. Following each

hearing, the trial court has ordered an additional year of treatment.

       In October 2018, the Commonwealth filed a motion to review

commitment pursuant to 42 Pa.C.S.A. § 6358, and A.C. countered with a

motion for a hearing for his release. Following a hearing in January 2019, the

trial court concluded that A.C. “continue[d] to have serious difficulty

controlling sexually violent behavior while committed for inpatient treatment

due to a mental abnormality or personality disorder that makes him likely to

engage in an act of sexual violence.” Order, filed Jan. 29, 2019. It ordered

A.C. to remain committed for a period of one year pursuant to 42 Pa.C.S.A. §

6404. Id. It denied A.C.’s motion for a hearing to release A.C. Id. A.C. filed a

timely notice of appeal.

       A.C. raises the following issue: “Whether Act 21 violates the

Constitutions of Pennsylvania and the United States given the criminal nature

of the statute after In Re: J.C., 1391 WDA 2017[,1] Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017)[,] and Commonwealth v. Butler, 173



____________________________________________


1  A panel of this Court in In re J.C., held that Act 21 was punitive and
unconstitutional. In re J.C., --- A.3d ----, 2020 WL 2463048, at *4 (Pa.Super.
May 13, 2020) (en banc). This Court granted a petition for re-argument, and
concluded that, in light of Commonwealth v. Butler, 226 A.3d 972 (Pa.
2020) (“Butler II”), and In re H.R., --- A.3d ----, 2020 WL 1542422 (Pa.
filed Apr. 1, 2020), J.C.’s claim that Act 21 was unconstitutional was meritless.
In re J.C., --- A.3d ----, 2020 WL 2463048, at *5.

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A.3d 1212 (Pa. Super. 2017)[(“Butler I”), reversed by --- A.3d ----, 2020 WL

1466299 (Pa. 2020)].” A.C.’s Br. at 2.

      Act 21 “directs the court to order involuntary inpatient treatment for a

sexually violent delinquent child (‘SVDC’) if it finds ‘by clear and convincing

evidence that the person has a mental abnormality or personality disorder

which results in serious difficulty in controlling sexually violent behavior that

makes the person likely to engage in an act of sexual violence.’” In re J.C., -

-- A.3d ----, 2020 WL 2463048, at *1 n.1 (quoting 42 Pa.C.S.A. § 6403(d)).

A court reviews the involuntary inpatient treatment order annually and “may

extend [it] indefinitely if the individual continues to meet the criteria for

involuntary inpatient treatment.” Id.

      A.C. argues that Muniz and Butler I “compel the conclusion that Act

21 as applied to civil commitments of persons who have been later found to

be subject to Act 21 are committed as an unconstitutional punitive sentence.”

A.C.’s Br.at 3. In Muniz, the Pennsylvania Supreme Court held that the

registration requirements set forth in the Sexual Offender’s Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, were punitive

and their retroactive application violated the ex post facto clause of the

Pennsylvania Constitution. Muniz, 164 A.3d at 1193. In Butler I, this Court

held that the sexually violent predator (“SVP”) requirements under SORNA

were punitive and it violated an individual’s due process rights to determine

whether he or she was an SVP by applying the preponderance of the evidence

standard. Butler I, 173 A.3d at 1218. However, the Pennsylvania Supreme

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Court recently overruled our decision in Butler I, and held that the

registration, notification, and counseling requirements imposed upon SVPs

under SORNA are not punitive. Commonwealth v. Butler, 226 A.3d 972,

988-93 (Pa. 2020) (“Butler II”); see also In re J.C., --- A.3d ----, 2020 WL

2463048, at *5. A trial court may therefore determine whether an offender

was an SVP by the preponderance of the evidence without violating due

process principles. Butler II, 226 A.3d at 993.

       The Pennsylvania Supreme Court also recently issued a decision in In

re H.R., wherein it concluded that Act 21 was not punitive. In re H.R., ---

A.3d ----, 2020 WL 1542422 (Pa. filed Apr. 1, 2020); see also In re J.C., --

- A.3d ----, 2020 WL 2463048, at *5. The In re H.R. Court balanced the

Mendoza-Martinez2 factors, and concluded the factors tipped in favor of

deeming the statute non-punitive. Id. at *10-14. The Court reasoned:

          Despite the fact that Act 21 imposes obvious affirmative
          disabilities or restraints upon SVDCs, our review of the
          remaining Mendoza-Martinez factors leads to the
          conclusion the statutory scheme is not punitive in intent or
          effect. Act 21 provides treatment to SVDCs rather than
          imposing restrictions that were historically considered
          punishment, and does not promote the typically punitive
          goals of deterrence and retribution. Furthermore, Act 21
          protects the public from SVDCs, who have never been
          convicted of a crime, but are subject to the statutory
          restrictions because they are dangerously mentally ill.
          Lastly, Act 21, including the 2011 amendments, cannot be
          said to be excessive in light of the danger posed to the public
          by SVDCs. Based on all of the above, we conclude Act 21
          does not constitute criminal punishment.

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2   Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

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In re H.R., 2020 WL 1542422, at *14.

      This Court in In re J.C. reviewed the recent Supreme Court cases and

concluded that, in light of the Pennsylvania Supreme Court decisions in Butler

II and In re H.R., J.C.’s claim that Act 21 was unconstitutional failed. In re

J.C., --- A.3d ----, 2020 WL 2463048, at *5. We similarly conclude that, in

light of the Pennsylvania Supreme Court’s decisions in Butler II and In re

H.R., and our en banc Court’s decision in In re J.C., Act 21 is constitutional

and A.C.’s claim fails.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/2020




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