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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: ALAN CRISPIN :             IN THE SUPERIOR COURT OF
                                  :                  PENNSYLVANIA
                                  :
 APPEAL OF: ALAN CRISPIN          :
                                  :
                                  :
                                  :
                                  :
                                  :             No. 266 WDA 2018

                  Appeal from the Order February 7, 2018
   In the Court of Common Pleas of Butler County Civil Division at No(s):
                            MS D No. 04-40311

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                          FILED OCTOBER 15, 2018

      Alan Crispin (Appellant) appeals from the order denying his motion to

terminate civil commitment and directing him to remain committed for one

year. After careful consideration, we affirm.

      Appellant is currently 34 years old. In 2002, he appeared in juvenile

court, where he was adjudicated delinquent of multiple counts of involuntary

deviate sexual intercourse and indecent assault, stemming from his repeated

sexual abuse of two children, ages 6 and 14.        The juvenile court ordered

Appellant to reside in a mental health group home, and undergo mental health

treatment and counseling.    The court also ordered Appellant to serve two

years of probation.

      In the summer and fall of 2003, Appellant “made inappropriate contact”

with a group home female staff member and sexually targeted a female

student at Allegheny County Community College, where he was attending
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classes. Memorandum Opinion and Order of Court, 2/7/18, at 1-2. Appellant

subsequently indicated that he had intended to rape the student. Following a

psychiatric evaluation and dispositional review hearing, the court ordered

Appellant to live in the group home “subject to a safety plan that included sex

offender counseling and constant supervision.” Id. at 2. He was also ordered

to attend the Butler County Juvenile Court Services Offender Group.

        During his participation   in the   Offender   Group, Appellant    was

noncompliant with the treatment program designed to address his mental

health issues. Appellant “routinely sought out sexually inappropriate material

on his weekend visits with his mother” and “his fantasies became increasingly

deviant and complex.” Id. As a result, the court referred Appellant to the

Sexual Offender Assessment Board (SOAB) for evaluation.

        On May 26, 2004, the SOAB determined that Appellant met the criteria

for involuntary civil commitment pursuant to Act 21, 42 Pa.C.S.A. § 6401-

6409.     On December 16, 2004, the court found by clear and convincing

evidence that Appellant had a mental abnormality or personality disorder that

caused him serious difficulty in controlling sexually violent behavior and made

him likely to engage in an act of sexual violence. The court thus entered an

order committing Appellant to involuntary treatment for one year. Each year

since 2004, the court has held annual review hearings after which it committed

Appellant to an additional year of treatment under Section 6403, based on




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Appellant’s continued threats to harm others and lack of any meaningful

improvement.

       Following his commitment in 2008, Appellant appealed to this Court

challenging, inter alia, the constitutionality of Act 21 on the basis that it was

penal in nature and therefore required proof beyond a reasonable doubt that

he was likely to commit a sexually violent act. This Court rejected Appellant’s

claim, holding that “Act 21 has a non-punitive purpose and non-punitive

effect[,]” and thus, proof that Appellant was likely to commit a sexually violent

act by clear and convincing evidence was sufficient to involuntarily commit

him under Act 21. In re A.C., 991 A.2d 884, 893 (Pa. Super. 2010).1

       On November 29, 2017, Appellant filed a motion to terminate his civil

commitment.       On January 17, 2018, the trial court held Appellant’s most

recent annual review hearing. At that hearing, Appellant admitted to wanting

to rape one of the staff members at his current placement, Torrance State

Hospital, and wanting to beat another staff member to death. Additionally,

testimony at the review hearing revealed that Appellant continues to suffer

from a mental abnormality or personality disorder (Pedophilic Disorder, Non



____________________________________________


1 Appellant also appealed from his November 13, 2012 commitment order. In
re A.C., 91 A.3d 1288 (Pa. Super. 2013) (unpublished memorandum). This
Court affirmed Appellant’s 2012 commitment because Appellant “failed to
provide any basis upon which we could be persuaded that he is entitled to
relief,” and noted that Appellant’s argument was “completely devoid of
support from relevant legal authority” and a “diatribe of full of hypotheticals,
mythological references and philosophical musings.” Id. at 2.

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Exclusive Type and Other Specified Paraphilic Disorder as defined in the DSM-

5), which causes him to have substantial difficulty in controlling sexually

violent urges and makes him likely to engage in an act of sexual violence.

Specifically, William G. Allenbaugh II, a member of the SOAB, testified:

           When you look at the prediction of re-offense, you have to look
        at the factors right now, and the thing that really concerns me is
        based on my interview with him where he’s still having fantasies
        involving stabbing and killing and having sex with the corpse; that
        he’s unable to process and in fact said a lot of time he is
        preoccupied with them. He uses them to distract himself from
        bad feelings to feel good.

           If placed in the community, my concern would be he would not
        have the structure that [Torrance State Hospital] offers in order
        to give him an opportunity to deal with that realistically without
        having any more victims. So, . . . right now we would look at
        [Appellant] as being high risk for sexual re-offense based on the
        mental abnormality, based on the number of victims that he has
        reported, and based on the fact that in treatment right now he
        has not been successful in learning coping skills to deal with these
        issues.

N.T., 1/17/18, at 18.

        On February 7, 2018, the trial court denied Appellant’s motion to

terminate civil commitment and ordered him to remain committed for one

year.    Once again, the court found by clear and convincing evidence that

Appellant “continues to suffer from a mental abnormality or personality

disorder which results in a serious difficulty in controlling sexually violent

behavior that makes him likely to engage in an act of sexual violence[.]”

Memorandum Opinion and Order of Court, 2/7/18, at 5.            On February 21,

2018, Appellant timely appealed to this Court.


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      Appellant presents the following issue for review:

      Whether Act 21 violates the Constitutions of Pennsylvania and the
      United States given the criminal nature of the statute after
      Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) and
      Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super 2017).

Appellant’s Brief at 2.

      Appellant again challenges the constitutionality of Act 21. We note our

scope and standard of review:

         [O]ur [scope] of review when considering [an] appellant’s
      constitutional challenges is plenary, as these challenges involve
      pure questions of law.” Commonwealth v. Leddington, 908
      A.2d 328, 331 (Pa. Super. 2006).

            The standard of review we apply to the court’s conclusion
        is exacting. A statute will be found unconstitutional only if it
        clearly, palpably and plainly violates constitutional rights.
        Under well-settled principles of law, there is a strong
        presumption that legislative enactments do not violate the
        constitution. Further, there is a heavy burden of persuasion
        upon one who questions the constitutionality of an Act.

      Commonwealth v. MacPherson, 752 A.2d 384, 388 (Pa. 2000).

In re A.C., 991 A.2d at 890.

      The General Assembly enacted Act 21 to establish the:

      rights and procedures for the civil commitment of sexually violent
      delinquent children who, due to a mental abnormality or
      personality disorder, have serious difficulty in controlling sexually
      violent behavior and thereby pose a danger to the public and
      further provides for additional periods of commitment for
      involuntary treatment for said persons.

42 Pa.C.S.A. § 6401.

      In his prior appeal challenging the constitutionality of Act 21, Appellant

raised a due process claim under the Fourteenth Amendment on the basis

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that, inter alia, Act 21 was penal in nature and therefore, the Commonwealth

should be held to a higher burden of proof than clear and convincing evidence.

In our opinion deciding that appeal, this Court provided the following thorough

description of the procedure for involuntarily committing an individual under

the Act:

          Three requirements must be met before a person falls within
      the purview of Act 21. First, the person must be a juvenile who
      was adjudicated delinquent for an act of sexual violence, which if
      committed by a person as an adult would be a violation of one of
      an enumerated set of sex offenses. See 42 Pa.C.S. § 6403(a)(1).
      Second, the person must have been committed to a juvenile
      facility or institution and remains at that institution when the
      person reaches twenty years of age.          See 42 Pa.C.S. §
      6403(a)(2). Third, a determination must be made that the person
      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.” 42 Pa.C.S. § 6403(a)(3).

          Pursuant to 42 Pa.C.S. § 6358, the [SOAB] is charged with
      assessing a person who has committed a sexually violent offense
      and remains in a juvenile facility upon attaining twenty years of
      age. Under Act 21, if this assessment concludes that the person
      is “in need of involuntary treatment,” and the court concludes that
      a prima facie case has been presented, the court is to order that
      a petition be filed by the county solicitor or designee indicating
      that the person has met the three requirements of Section
      6403(a) outlined above and should be involuntarily committed.
      See 42 Pa.C.S. § 6403(b)(1). After the filing of the petition, the
      court is required to hold a hearing at which the person has the
      right to appointed counsel if the person cannot afford counsel. See
      42 Pa.C.S. § 6403(b)(3). The person also has the right to be
      assisted by an expert in this field, and if he or she cannot afford
      one, the court will pay for one. See 42 Pa.C.S. § 6403(b)(4).

                                *     *     *

         At the hearing, it is the Commonwealth that bears the burden
      of proof of showing by clear and convincing evidence that “the

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     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.” 42 Pa.C.S. § 6403(d) (emphasis added). If the
     Commonwealth meets this burden, the court is to enter an order
     committing the person to inpatient treatment for a period of one
     year. See 42 Pa.C.S. § 6404(a). The commitment is subject to
     review [60] days before the expiration of the one-year period.
     See 42 Pa.C.S. § 6404(b)(1). The review occurs by means of a
     hearing in accordance with the process set forth above under
     Section 6403(c), at which the Commonwealth bears the same
     burden established by Section 6403(d).            See 42 Pa.C.S. §
     6404(b)(2). This process can proceed indefinitely, year after
     year, until a court finds that the Commonwealth has not adduced
     sufficient evidence to establish that the person “continues to have
     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.” 42 Pa.C.S. §
     6404(c).

In re A.C., 991 A.2d at 888-89.

     In rejecting Appellant’s challenge to the constitutionality of Act 21, we

noted that this Court had previously held that “Act 21 has a non-punitive

purpose and non-punitive effect” and therefore “it does not constitute

punishment.” Id. at 893 (quoting In re S.A., 925 A.2d 838, 845 (Pa. Super.

2007)). Thus, because we had previously found Act 21 to be non-punitive,

we held that Act 21 was constitutional because the evidentiary standard of

clear and convincing evidence satisfied the due process protections of the

Fourteenth Amendment for civil involuntary commitment.               Id. (citing

Addington v. Texas, 441 U.S. 418 (1979)).

     We further held:

     For so long as that individual’s mental abnormality results in the
     individual posing a danger to others, the Commonwealth may

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      civilly confine him or her. While the result of Act 21 may be that
      Appellant remains committed for many years to come, the law
      excuses this serious infringement upon his liberty, as it is done for
      the greater public good of protecting people from the threat
      presented by individuals who are likely to commit sexually violent
      acts.

Id. at 896.

      In this appeal – similar to Appellant’s second appeal of his 2012

commitment – Appellant’s argument is far from the picture clarity, as it

contains numerous unfounded and perplexing personal opinions and theories,

as well as irrelevant non-legal citations. From what we discern, Appellant,

despite this Court’s prior opinion, seeks to yet again challenge the

constitutionality of Act 21. This time, however, he bases his constitutional

challenge on our Supreme Court’s recent decision in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017) and this Court’s subsequent decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), both of which

involve Pennsylvania’s Sex Offender Registration and Notification Act

(SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.42.

      SORNA established a statewide registry of sexual offenders.             42

Pa.C.S.A. § 9799.16(a).      On December 20, 2012, SORNA replaced and

enhanced the then existing sexual offender registration statutory provisions,

commonly known as Megan’s Law III, 42 Pa.C.S.A. §§ 9791-9799.9 (expired).

In Muniz, five of the six participating justices of our Supreme Court held that

even though the General Assembly identified SORNA’s enhanced registration

provisions as non-punitive, they nonetheless constituted punishment. Id. at

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1218. The Supreme Court further determined that the retroactive application

of SORNA’s registration requirements to an individual who committed sexual

offenses prior to when SORNA became effective violated the ex post facto

clause of the Pennsylvania Constitution. Id. at 1218-19.

      In   Butler,   this   Court   held   that   applying   SORNA’s   aggravated

registration periods for those found to be Sexually Violent Predators is

unconstitutional. Butler, 173 A.3d at 1217. We concluded that because the

Supreme Court in Muniz held SORNA’s registration requirements to be

punitive, and an SVP designation increases the registration period, trial courts

cannot apply SORNA’s increased registration requirement for SVPs because

SORNA does not require a fact-finder to determine, beyond a reasonable

doubt, that the defendant is an SVP. Id. at 1217-18 (citing Alleyne v. U.S.,

570 U.S. 99 (2013)).

      Appellant argues that following Muniz and Butler, we can no longer

consider the statutory involuntary civil commitment scheme of Act 21 as non-

criminal and non-punitive.     Accordingly, Appellant asserts that in order to

continue his civil commitment, it must be proven beyond a reasonable doubt

that he suffers from a mental abnormality or personality disorder that causes

him to have substantial difficulty in controlling sexually violent behavior and

makes him likely to engage in an act of sexual violence.

      Appellant’s argument is unavailing. As with his appeal to this Court from

his 2012 commitment, Appellant does not cite any relevant legal authority to


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support his argument, and we discern no basis upon which to conclude that

our A.C. and S.A. decisions are no longer good law or binding on this Court.

See Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super. 1998) (“It is

beyond the power of a panel of the Superior Court to overrule a prior decision

of the Superior Court.”).

      Moreover, we emphasize that Appellant’s reliance on Muniz is tenuous

at best, as that decision stems from the retroactive application of SORNA’s

enhanced registration requirements to an individual who committed sexual

offenses prior to the date SORNA became effective.        As we held in In re

K.A.P., 916 A.2d 1152 (Pa. Super. 2007), affirmed, 943 A.2d 262 (Pa. 2008),

Act 21 does not operate retroactively. We explained:

      Our understanding of the legal meaning of retroactivity is shaped
      by pronouncements from the highest courts in the land. As the
      U.S. Supreme Court has stated, “[a] statute does not operate
      ‘retrospectively’ merely because it is applied in a case arising from
      conduct antedating the statute’s enactment, or upsets
      expectations based in prior law.” Landgraf v. U.S.I. Film
      Products, 511 U.S. 244, 269-70 [] (1994) (citations omitted).
      The Pennsylvania Supreme Court has offered a similar directive:
      “a statute is not regarded as operating retroactively because of
      the mere fact that it relates to antecedent events, or draws upon
      antecedent facts for its operation.” In re R.T., [] 778 A.2d 670,
      679 (Pa. Super. 2001) [] (quoting Creighan v. City of
      Pittsburgh, [] 132 A.2d 867, 871 ([Pa.] 1957) (citation
      omitted)). “Rather, the court must ask whether the new provision
      attaches new legal consequences to events completed before its
      enactment.” Landgraf, 511 U.S. at 269-70 []. Retroactive
      application occurs only when the statute or rule relates back and
      gives a previous transaction a legal effect different from that
      which it had under the law in effect when it transpired.

Id. at 1159-60 (quotations and citations omitted).


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     We thus reasoned:

     [Act 21] does not give the prior offense any different legal effect
     than it had when [the individual] committed the offense. Rather,
     [Act 21] relates to the juvenile’s current and continuing status as
     a person who suffers from “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.” 42 Pa.C.S.A. § 6403(d). It may be true that
     a juvenile would not be subject to [Act 21] but for the fact that he
     committed a prior juvenile offense. This, however, is not the test
     for retroactivity. See Warren [v. Folk, 886 A.2d 305, 308 (Pa.
     Super. 2005)] (a statute is not retroactive just because it relies
     on past events for operation)[.]

Id. at 1160 (emphasis in original).

     Accordingly, we conclude that Appellant’s constitutional challenge to Act

21 does not warrant relief. This Court has repeatedly held Act 21 to be non-

punitive, non-criminal, and constitutional.    See A.C., 991 A.2d at 888-93;

K.A.P., 916 A.2d at 1159-60; S.A., 925 A.2d at 843 (“[T]he General

Assembly’s intent in promulgating Act 21 was not to punish sexually violent

delinquent children, but rather, to establish civil commitment procedures

designed to provide necessary treatment to such children and to protect the

public from danger.”).    Additionally, we find Appellant’s reliance on the

holdings of Muniz or Butler to be inapposite. We therefore affirm the order

denying Appellant’s motion to terminate civil commitment and directing him

to remain committed for one year.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2018




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