In Re: B.A.N. (memorandum)

Annotate this Case
Download PDF
J-S31004-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: B.A.N. APPEAL OF: B.A.N. : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1934 MDA 2019 Appeal from the Order Entered November 4, 2019 In the Court of Common Pleas of Berks County Civil Division at No(s): 166-10-MH BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2020 B.A.N. appeals the November 4, 2019 order extending for one year his involuntary commitment pursuant the Court-Ordered Involuntary Treatment of Certain Sexually Violent Persons statute1 (“Act 21”). Berks County Assistant Public Defender, Eric Muhlenberg, Esquire, filed a petition to withdraw from representation and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the petition and affirm. ____________________________________________ Act 21 directs a juvenile 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.” 42 Pa.C.S. § 6403(d). Once entered, the order is reviewed annually and may extend indefinitely, as long as the person continues to meet the criteria for involuntary inpatient treatment. See 42 Pa.C.S. § 6404 1 J-S31004-20 The juvenile court succinctly summarized the facts and procedural history based upon the evidence adduced during the most recent Act 21 commitment hearing as follows: In 2004 the Berks County Juvenile Court adjudicated B.A.N. delinquent for rape and other sexual offenses arising out of his assault of a nine-year-old girl. He was successively placed in three secure settings. At each location he engaged in sexually aggressive, assaultive, and otherwise inappropriate behaviors. In December 2008, when he was nineteen, B.A.N. was charged with assaulting a female staff member at Northwestern Academy. He later pleaded guilty to aggravated assault and was sentenced to 11 to 23 months [of] incarceration. On October 14, 2009, the County of Berks filed a petition for involuntary commitment pursuant to [Act 21] seeking involuntary treatment for B.A.N. due to a mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior that makes him likely to engage in an act of sexual violence. The court held a hearing on the county’s petition and on December 22, 2009, found that B.A.N. had a mental abnormality that met the criteria necessary for involuntary commitment for one year to the Sexual Responsibility Treatment Program . . . at Torrence State Hospital[.] .... Th[e juvenile] court held the annual review hearing pursuant to § 6404(b) of Act 21 on November 4, 2019. At the conclusion of the hearing, the court determined that the county had proven by clear and convincing evidence that B.A.N. continues to have serious difficulty controlling sexually violent behavior while committed for inpatient treatment due to a mental abnormality or personality disorder that made him likely to engage in an act of sexual violence and recommitted him to Torrance State Hospital for a period of one year. This appeal followed. Juvenile Court Opinion, 3/23/20, at 2-3 (cleaned up). -2- J-S31004-20 Appellant complied with the mandates of Pa.R.A.P. 1925, challenging the constitutionality of Act 21 and assailing the quantum of evidence that the Commonwealth adduced during the annual recommitment hearing. The juvenile court addressed those arguments in its Rule 1925(a) opinion, and Attorney Muhlenberg reiterated the issues as follows before concluding that this appeal was wholly frivolous: 1. Whether the Commonwealth failed to present sufficient evidence to prove by clear and convincing evidence that Appellant met the criteria for civil commitment under 42 Pa.C.S. § 6404(b)(2) in that he has mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior and that Appellant is likely to engage in acts of sexual violence. 2. Whether Act 21 violates the United States and Pennsylvania Constitutions in that Act 21 is punitive and thus requires a finding of proof beyond a reasonable doubt. 3. Whether Act 21 violates the Equal Protection clause of the United States and Pennsylvania Constitutions as it treats juveniles found to meet the criteria of Act 21 more harshly than adults who meet substantially similar criteria under SORNA in that Act 21 could amount to a life time inpatient commitment whereas SORNA only requires outpatient treatment. Appellant’s brief at 6-7 (footnotes and suggested answers omitted). We must first confront Attorney Muhlenberg’s request to withdraw. Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to withdraw from appellate representation pursuant to Anders, certain procedural and substantive requirements must be met. Procedurally, counsel must: 1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the -3- J-S31004-20 appeal would be frivolous; 2) furnish a copy of the brief to the juvenile; and 3) advise the juvenile that he or she has the right to retain private counsel or raise additional arguments that the juvenile deems worthy of the court’s attention. See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). Attorney Muhlenberg’s petition to withdraw sets forth that he reviewed the entire record and concluded that there are no non-frivolous issues. Counsel furnished Appellant a copy of the Anders brief and a letter dated May 6, 2020, which informed Appellant that he had the right to retain new counsel or proceed pro se and raise additional arguments. Therefore, counsel complied with the procedural requirements. Next, we examine whether counsel’s Anders brief meets the substantive requirements as set forth by our Supreme Court in Santiago. The brief must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010) (citing Santiago, supra at 361). -4- J-S31004-20 Instantly, the Anders brief summarized the factual and procedural history of this case and referred to the portions of the record that fail to support these issues with citations and discussion of pertinent case law. Thus, the brief is compliant with Santiago. Accordingly, we consider the issues raised in the Anders brief. Preliminarily, we highlight that Appellant’s assertion that Act 21 is punitive, and therefore the grounds for involuntary commitment must be proved beyond a reasonable doubt, is facially meritless. Our Supreme Court recently confronted this precise issue in In re H.R., 227 A.3d 316, 335 (Pa. 2020) and held that Act 21 was not punitive.2 The High Court reasoned as follows: Despite the fact that Act 21 imposes obvious affirmative disabilities or restraints upon SVDCs, our review of the remaining [pertinent] factors leads to the conclusion [that] 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. ____________________________________________ As Act 21 is not punitive, we also reject Appellant’s contention that the indefinite nature of Act 21 violates the Eighth Amendment to the United States Constitution, which applies to punishment and fines that flow from criminal convictions. Graham v. Connor, 490 U.S. 386, 398, (1989). In the body of this memorandum, we discuss the analogous claim relating to Article I § 13 of the Pennsylvania Constitution, which has been applied to civil proceedings. Since both contentions were raised in Appellant’s Rule 1925(b), we confront them in the capacity of our independent review of the record. 2 -5- J-S31004-20 Based on all of the above, we conclude that Act 21 does not constitute criminal punishment. Id. at 335. Thus, the statute’s application of a clear and convincing evidentiary standard for imposing its requirements passes constitutional muster. See In re J.C. ___ A.3d ___, 2020 WL 2463048 (Pa.Super. 2020) (en banc) (applying In re H.R. to hold that Act 21 is not punishment and the standard of proof requiring clear and convincing evidence is constitutional). In light of the foregoing precedent, Appellant’s constitutional challenges to Act 21 are meritless. As our Supreme Court previously explained In re H.R., Act 21 is not punitive. Therefore, application of the statute does not violate Appellant’s constitutional protections. As it relates to the remaining issues raised in the Anders brief, the following legal principles inform our review. We have explained that, at the [Act 21] hearing, it is the Commonwealth that bears the burden of showing 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. 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. Our Supreme Court has defined clear and convincing evidence as testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. Thus, the clear and convincing evidence test has been described as an intermediate test, which is more exacting than a preponderance of the evidence test, but less exacting than proof beyond a reasonable doubt. Moreover, in conducting a sufficiency review, we must consider the evidence in the light most favorable to the Commonwealth which prevailed upon the issue at trial. With regard to sexually violent predator -6- J-S31004-20 assessments, the task of the Superior Court is one of review, and not of weighing and assessing evidence in the first instance. In re S.T.S., Jr., 76 A.3d 24, 38-39 (Pa.Super. 2013) (citations and quotation marks omitted). In reviewing Appellant’s argument that Act 21 violates the equal protection clauses of the United States and Pennsylvania Constitutions, we observe that “the essence of the equal protection doctrine is that like persons in like circumstances will be treated similarly, [however] the right to equal protection does not absolutely prohibit the Commonwealth from classifying individuals for the purposes of receiving equal treatment.” Probst v. Com., Dep't of Transp., Bureau of Driver Licensing, 849 A.2d 1135, 1143 (Pa. 2004) (cleaned up). Furthermore, our evaluation of an equal protection challenge depends on the nature of the statutory classification at issue. Id. Three classifications exists: “(1) classifications which implicate a ‘suspect’ class or a fundamental right; (2) classifications implicating an ‘important’ though not fundamental right or a ‘sensitive’ classification; and (3) classifications which involve none of these.” Id. 1143-44. If the statute affects a suspect class or a fundamental right, we construe it strictly in light of a compelling governmental purpose. Id. at 1144. When it implicates an important right or a sensitive classification, we employ a heightened standard of scrutiny to an important governmental purpose. Id. Finally, “if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.” Id. -7- J-S31004-20 As Appellant asserts that Act 21 treats juveniles more harshly than adults who meet substantially similar criteria under SORNA, we employ the rational basis test to that classification. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (age classification is subject to rational basis review); see also In re K.A.P., 916 A.2d 1152, 1161 (Pa. Super. 2007),aff'd sub nom, In re K.A.P., Jr., 943 A.2d 262 (Pa. 2008) (applying rational basis review to determine whether predecessor to Act 21 treated juvenile offenders different from similarly-situated adult offenders). However, to the extent that Appellant also argues that ACT 21’s involuntary commitment provisions restrict his right to physical freedom, we must determine whether the statute promotes a compelling state interest. In re S.A., 925 A.2d 838, 846 (Pa.Super. 2007) (applying strict scrutiny to portion of Act 21 that implicates a juvenile’s right to physical freedom). Next, concerning the assertion that the indefinite nature of Act 21 violates Article I § 13 of the Pennsylvania Constitution, which prohibits the imposition of excessive fines and cruel punishments, we observe that, while “[t]he principle embodied in the constitutional provision is, of course, applicable in all proceedings, civil as well as criminal[,] . . . that cannot be excessive which is not punitive.” City of Scranton v. Peoples Coal Co., 117 A. 673, 676 (Pa. 1922). Thus, to the extent that Appellant’s claim under our state constitution might be cognizable in the context of civil proceeding, he must nevertheless demonstrate that Act 21 is so excessive that it is effectively -8- J-S31004-20 tantamount to punishment. As noted, our High Court has held that it is not. In re H.R., supra at 335. After a thorough review of the certified record, the pertinent briefs, and the pertinent law, we affirm the Act 21 commitment order on the basis of the cogent and well-reasoned opinion entered on March 23, 2020, by the Honorable Scott E. Lash. Specifically, Judge Lash observed that the evidence adduced at the November 4, 2019 hearing sustained the finding that the Commonwealth established by clear and convincing evidence that “B.A.N. continues to have serious difficulty controlling sexually violent behavior while committed for inpatient treatment due to mental abnormality or personality disorder that makes him likely to engage in act of sexual violence, the criteria found at §6404(b)(2) of Act 21.” Juvenile Court Opinion, 3/23/20, at 7. Specifically, the court indicated that it was “convinced that there is a significant likelihood that B.A.N. will continue to engage in sexually violent behavior.” Id. at 8. In relation to the remaining issues concerning equal protection and cruel and unusual punishment, Judge Lash highlighted that: 1) any age-based classification is rationally related to a legitimate goal providing treatment to sexually violent juveniles and protecting the public; 2) the restriction of the juvenile’s right to physical freedom promotes both of those compelling state interests; and 3) the year-long commitment, with annual evidentiary hearings, is not an indefinite commitment in violation Article I § -9- J-S31004-20 13 of the Pennsylvania Constitution. Id at 15-18. As to all of the foregoing points, we adopt Judge Lash’s reasoning as our own. Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015), we have independently examined the record to determine if there are any additional, non-frivolous issues. Finding no preserved nonfrivolous issues, we grant counsel’s petition to withdraw. The petition to withdraw of Eric Muhlenberg, Esquire, is granted. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/26/2020 - 10 - Circulated 09/29/2020 09:12 AM IN THE INTEREST OF IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA CIVIL DIVISION/COMMITMENT DOCKET B.A.N. No. Christine Glenn 166-10-MH Sadler, Esquire, Solicitor for the County of Berks, M. Welsh, Esquire, Assistant Public Defender for B.A.N. D. MEMORANDUM OPINION, Scott Lash, E. j. March 23, 2020 B.A.N. has appealed this Court's order of November 4, 2019, involuntarily committing period of one him to Torrance year pursuant (1) to 42 State Hospital Pa.C.S.A. for a 6401 et seq. § (Act 21). We submit this opinion pursuant to Pa.R.A.P. 1925(a). In 2004 the Berks County juvenile Court adjudicated B.A.N.' delinquent for rape and other sexual offenses arising out of his assault of a nine -year -old girl. He was successively placed in three secure settings. At each location he engaged in sexually aggressive, In assaultive, and otherwise December 2008 when he was nineteen, assaulting female a staff member at inappropriate B.A.N. behaviors. was charged with Northwestern Academy. He later pleaded guilty to aggravated assault and was sentenced to 11 to 23 months incarceration. On October for involuntary seeking 14, B.A.N.'s date of birth or is the commitment involuntary abnormality 2009, County of Berks pursuant treatment personality March 23, 1998. for to B.A.N. disorder which 42 filed a petition Pa.C.S.A. due to results a in §6403 mental serious difficulty in him likely controlling engage to sexually violent act an in of behavior sexual that makes The Court violence. held a hearing on the county's petition and on December 22, 2009 found that B.A.N. had a mental abnormality that met the criteria necessary Act 21 involuntary for Court the commitment. ordered him committed year to the Responsibility Treatment Program (SRTP) at Torrance State Sexual Hospital (hereinafter "Torrance"). Except for periods of incarceration, Torrance State Hospital. annual each one for of §6403(d) to Pursuant review year continued to never left From 2010 to the present B.A.N. has had the has B.A.N. Court has engage in required by recommitted him physically and Act of §6404(b) Torrance. to sexually 21 and He has aggressive behavior.' B.A.N. On assaulted October 2014, 22, staff member at a he pleaded guilty 2015, with bodily injury to four years in a he again years corrections was and 9, revoked incarceration sentence assault years probation. two pleaded guilty to aggravated assault officer an probation. On February 2014, 5 2014. 2015 he assaulted three SRTP staff members and on 17, November 24, 22, 5, aggravated to with bodily injury to an officer and received On August March SRTP on facility 2016, and he was sentenced by followed to two two to years the probation imposed on October was concurrent years and probation re -sentenced with the concurrent one to November with the to 24, two 2015 November The following narrative is derived from reports prepared by witnesses who testified at B.A.N.'s §6404(b) hearing held on November 4, 2019 and admitted unto the record as Exhibits 1-3. 2 2 24, 2015 sentence of probation. B.A.N. when his sentence expired on September was 9, denied 2019 parole and returned was he to Torrance. September on injured two SRTP a counts simple 2019, 23, B.A.N. staff member. each assault, of allegedly was He aggravated arrested assault, disorderly conduct, assaulted charged with and terroristic harassment and and threats, and he was incarcerated in the Westmoreland county Prison. This Court held the review annual §6404(b) of Act 21 on November 4, hearing pursuant to 2019. At the conclusion of the hearing the Court determined that the county had proven by clear and convincing evidence that B.A.N. continues serious have to difficulty controlling sexually violent behavior while committed for inpatient treatment due to abnormality mental a or personality disorder that made him likely to engage in an act of sexual violence and recommitted him to Torrance state Hospital for a period of one year. This appeal followed. B.A.N.'s first here the County convincing issue of evidence on appeal Berks - that he is failed met that the to the prove commonwealth clear by criteria for - and civil commitment under 42 Pa.c.s.A. §6404(b)(2). section determine continues by to 6404(b)(2) clear and have of Act 21 convincing serious requires evidence difficulty the that court "the controlling to person sexually violent behavior while committed for inpatient treatment due to a mental abnormality person likely to or personality engage in an act 3 of disorder sexual that makes the violence...." The of standard "clear convincing and evidence" defined is as testimony that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In the Interest of M.V., 203 A.3d 1104 (Pa.Super. 2019). At the November licensed clinical Offender Assessment 2019 hearing, psychologist evaluations annual 4, Board, of who is testified B.A.N. since Veronique Valliere, Dr. member a she that 2009 and underlying offenses and treatment. N.T. p.6 he was cell to recently and Dr. then incarcerated, he called this incident shows that has the Sexual conducted aware of his She said that while female a masturbated while facing her. Valliere is of a Id. B.A.N. nurse p.9. is to his According capable of committing sex offenses even in the most restricted environment, that his unmanaged, diagnosis and he of still exhibitionistic poses a risk to disorder others is because still he unable to manage his sexual behavior. Id. p.9. She than testified that B.A.N. has several diagnoses. The ones that are most relevant in terms of his pathway to reoffending and fitting the statutory definition of mental abnormality or personality disorder related to risk of recidivism of sexually dangerous behavior are his personality antisocial disorder, which is diagnosed through his long-standing criminal behavior, disregard for the rules, failure to respect the rights of others and responsibilities of society, criminal thinking, lack of empathy, and callousness regarding his behavior. This has been a diagnosis he's had since and his commitment contributes to his repeated rule violations, criminal behavior, assaultive behavior, and failure to respond to treatment intervention. And then [B.A.N.] also has paraphilic diagnoses as well. He has been diagnosed with, in this particular case exhibitionistic disorder, but he's also been 4 is diagnosed with frotteuristic disorder, which is a disorder of nonconsensual sexual touching of others. so, his exhibitionistic disorder is clearly still active and is unmanaged, contributing to his failure to and difficulty in managing sexually dangerous behavior. Id. 10-11. pp. was Dr. It likely to valliere's professional engage acts in of sexual opinion that violence B.A.N. meets and is the criteria for commitment. Id. p.11. she said B.A.N. does not take advantage highly of the improbable expressed treatment that concern he that environment i.e. prison, available will even overcome while him to and these restricted that it disorders. to a is she secure he continues to find a way to engage in sexual aggression against others, thereby demonstrating either a significant inability or severe unwillingness to manage himself. Id. p.12. redirect on fact B.A.N. was later assaulted thinking further and examination, valliere released from prison a to that his are still antisocial testified Torrance and staff member is evidence decision -making opined Dr. that active. personality that the two weeks his antisocial Id. p.15. disorder accompanied by his willingness to act out on his sexual she when deviance shows that he is not adhering to the responsibilities of society and is not demonstrating the internalized barriers to acting out on his deviant arousal. Id. p.16 some barriers would be anxiety or remorse or regret for what you've done or fear of negative consequences or concern for the negative impact on others. so, the fact that he isn't demonstrating any of those would show that he continues to live in an antisocial orientation and so doesn't have or utilize "So 5 the in barriers that keep the rest of us from acting out the same way." Id. Stacie Dr. Barnes a J. psychologist and clinical licensed director of the SRTP has been involved in the attempts to treat B.A.N. since prison B.A.N. p.22. This 2009. refused led p.21. Id. treatment treatment to address his issues, shown improvement on those issues," Id. Torrance, to B,A.N.'s period where he on two -to -one then three -to -one he was confined to his bedroom. hurt staff and Finally, that based to placed did He said was he allegedly injure staff and he County the Prison. Dr. feelings placed restraints down. to week Because him behaviors his was he and physical in have two a calm Westmoreland on over observation. pp.26-27. Id. refused medication B.A.N. taken and staff in After he returned deteriorated became increasingly violent, combativeness his behavior Id. would not then he p.25. in engaging not he's was he offenses. sexual that "if sexual while that his for concern the to said She and going to p.27. Id. was arrested Barnes concluded feed that of into his disorders have not changed. Id. p.32. Jamie he and met Keilman, to Torrance September acclimating to 19, the evening of September 20, Id. p.38, Mr. Keilman after he was State 2019, SRTP. testified primary therapist, regularly with B.A.N. returned through B.A.N.'s p.37. Id. B.A.N. released from prison Hospital. However, September From initially B.A.N. that did starting 9 well in on the became agitated and aggressive. others and were unsuccessful in deescalating B.A.N.'s behavior so he could return to the regular mix of people at the program. program Id. 6 p.39. Ultimately, the obtained a court order allowing form of shackles and these were used to 39-40. for restraints in the restrain B.A.N. Id. pp. physical Keilman had concerns for Based on B.A.N.'s behaviors, Mr. the staff of SRTP and for B.A.N.'s safety. Id. p.41. This concluded that Court convincing evidence that continues B.A.N. clear proved by County the serious have to and difficulty controlling sexually violent behavior while committed for inpatient treatment due to mental abnormality or personality disorder that violence, the valliere makes him criteria observed found that engage to engaged B.A.N. exhibitionistic personality antisocial deviance barrier disorder proves that that would concluded B.A.N. is while posing disorder B.A.N. prevent accompanied not does from him likely to risk a engage,. have acting in 21. Dr. aggressive manage to others. to his by his His sexual internalized the out. sexual environment, secure a evidenced an inability or unwillingness this Act sexually in behavior toward a nurse while in prison, and of §6404(b)(2) at of act in valliere Dr. violence actc of Sexual and meets the criteria for recommitment. Dr. Barnes in treatment testified that B.A.N. has refused to take part designed to help him and that he is unable to make progress at SRTP. His antisocial personality disorder led to an alleged assault at Torrance within two weeks after his release from prison. The truth of these facts have been established by testimony and documentary evidence and we do not hesitate to conclude that they are true. We are convinced 7 that there is a significant likelihood that will B.A.N. continue sexually in engage to violent behavior. Because the county met its burden of proof and criteria the established required Act by recommitted we 21, B.A.N. to Torrance State Hospital and did not err in doing so. B.A.N.'s next issue and second clear the that requires thus unconstitutional, and beyond that reasonable a the commitment constitutes doubt, standard is indefiniteness of evidence convincing finally and involuntary B.A.N.'s proof States First that it is and Pennsylvania constitutions in several ways. punitive, united that Act 21 violates is unusual and cruel punishment. There a 2007). (Pa. unconstitutional violates favor the persuasion statue." "Accordingly, unless finding of Commonwealth upon one Commonwealth Thus, who v. there Beish, 207 and plainly resolved enactment heavy very a is declared be to legislative challenges the passes burden constitutionality of A.3d 964, 967 in of a (Pa.Super. (citations omitted). Act 21 is not punitive. 838 (Pa.Super. 2007), In the case of In personality disorder which controlling sexually re S.A., 925 A.2d the trial court held a hearing pursuant to §6403(c) of Act 21 and found that S.A. or are 865, be not will A.2d 935 Lee, palpably, doubts the lawfully enacted all v. statue clearly, All that muster. a it Constitution. constitutional 2019) presumption that general are constitutional. statues 876 is violent had a mental abnormality resulted in serious difficulty in likely to behavior that made him engage in an act of sexual violence and involuntarily committed 8 him to an in -patient treatment facility. On inter rather alia, that Act was 21 punitive appeal argued, S.A. civil in applied the A.2d 962 adopted the U.S. 84 than effect. addressing In analysis set 2003) (Pa. two -level (2003) forth in ("Williams inquiry to this punitive. First, the the commonwealth II") set determine issue, Superior v. where the forth whether Court Williams, Doe v. legislation must 832 Supreme Court Smith in Court is determine 1, 538 unconstitutionally if legislative the intent was to punish. If the Court concludes the intent was non - punitive, must be effect scheme then of there the legislation an forth in of whether the purpose "the nonetheless either in purpose or effect as is The assess to the legislature's 971. evaluation second statutory to negate intent." Williams II, step Williams 11, involves applying the seven and at factors 832 A.2d at 973 citing Kennedy v. set Mendoza - Martinez, 372 U.S. 144, 168-169 (1963). (1) whether the sanction affirmative involves an disability or it has restraint; (2) whether historically been regarded as punishment; (3) whether it comes to play only on finding of scienter; (4) whether its operation will promote the traditional aims of punishment -retribution and (5) deterrence; whether behavior to which it applies is already a crime; (6) whether an alternative purpose to which i t may rationally be connected is assignable for it; and (7) whether is appears excessive in relation to an alternative purpose. To determine actual intent the Court looked at §6401 of Act 21 and concluded Act 21 was but rather, "the not to General punish Assembly's intent in promulgating sexually violent delinquent to establish civil children, commitment procedures designed to 9 necessary treatment to such children and to protect the provide public from danger." In re S.A., 925 A.2d at 843. superior The court than the applied seven -factor analysis that although of Williams II. applying In there these restraint is factors, because Court the held individual the involuntarily is committed this one factor alone does not prove punitive purpose and the remaining factors must be evaluated. The Court then held that commitment of sexually civil was individuals violent not historically regarded as punishment; that no finding of scienter is required to determination of that Act possible a does 21 Act under only a commit a "mental abnormality or personality disorder"; not deterrent have person retributive a purpose does nor effect its that punitive; statue the render 21, whether behavior to which Act 21 applies is already criminal was conceded by S.A. as not supporting his regarding position statue has the alleged punitive rational connection to non -punitive purposes viz., the safety of the public and nature of Act treatment the 21; of that sexually the violent a delinquent personality children who disorder, have difficulty controlling sexually violent behavior, and due to a abnormality mental or that the sanction is not excessive to an alternative purpose because Act excessive that Act 21 provides for annual an commitment. In re S.A. 21 is non -punitive in constitute punishment. Hence, at review to guard 844-45. against The court concluded purpose and effect and does not proof beyond a reasonable doubt is not required. 10 B.A.N.'s evidence v. next standard Muniz, issue unconstitutional is 164 A.3d 1189 (Pa. A.3d 1212 (Pa.Super. Commonwealth found that Offender the and Notification provisions these light of Commonwealth v. 173 530 U.S. 466 (2013)3. 90 supreme Pennsylvania the Butler, Court registration provisions of the Pennsylvania Sex punitive were seq. and New Jersey, v. 570 U.S. Muniz, v. in convincing clear Commonwealth 2017), 2017), Apprendi (2000), and Alleyne v. u.S., In the that is Act (SORNA), therefore and violated the retroactive post ex §9799.10 et application of Pa.C.S. 42 of clauses facto the United States and Pennsylvania Constitutions. In Commonwealth the holding in Muniz, punitive part and convicted when applied, the following Court, Superior deemed the SORNA registration requirements of the defendant. regarding illegal and Butler, v. criminal "Accordingly, a principles general the upon imposed punishment sentences are applicable to the case before us we find that the inquiry ... implicates the legality of Appellant's sentence...." Butler, 173 A.3d 1215. The Court focused on §9799.24(e)(3) the conclusion of a Commonwealth proved defendant a the is of SORNA which hearing the Court clear and convincing by Sexually Violent Predator provides that at determines if a person is an SVP, the that the evidence (SVP). determining In legality of the clear and convincing standard to determine whether that is used the Court looked to Apprendi and Allyene. B.A.N. also cites In re J.C., No. 1391 WDA 2017 in this context. However, the panel decision vacated and the matter was scheduled for an en banc argument. Because the decision in this case no precedent to guide us. 11 in is Ln re J.C. was pending, there is Apprendi [ ] the supreme Court of the united States held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.... In subsequently in Allyene [ ] the [supreme Court of the united states] held that any fact that increases the mandatory minimum sentence for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt.... Butler, 173 A.3d at 1216-17 (citations omitted). Court than The apply to s. types of punishment all union united states, co v. that SORNA registrations leading registration to chosen fact -finder Thus, omitted). defendant Id. is the the a imprisonment (citing 346-360 343, 567 u.s. defendant, clear sexually just (2012)) be it "the facts found by judge or a 173 A.3d Butler, be to need at 1217 (citation standard convincing evidence of SORNA determining violent predator the jury, a and for and if a unconstitutional, is at 1218. Northampton county (Pa.super. 196 A.3d 1059 case of In re H.R., In the the by not requirements §9799.24(e)(3) by required Allyene requirements are punishment, reasonable doubt." beyond a and reasoned that because Apprendi the petitioned Solicitor 2018), court for involuntary treatment of H.R. pursuant to §6403 of Act 21. After hearing the involuntarily that its determining the committed On appeal treatment. such evidence, H.R. H.R. granted Court for one raised the year an individual 12 of petition mental and health issue "Is Act 21 punitive, retroactive application.... whether the is and a its mechanism for sexually violent delinquent child [SvoC] under the cases of are unconstitutional" Muniz and Butler? Id. at 1062. addressing this question, In Act 21 is supra. S.A., and punitive in not Thus, convincing either intent or effect citing In re because Act 21 is not penal, "... evidence juvenile is an SVDC the Court first concluded that standard for constitutional." is the whether determining a The Court at 1063. Id. clear distinguished both Muniz and Butler because each case dealt with SORNA and not Act 21 and each case found SORNA to be punitive in effect while Act is 21 not. Therefore, 1063-64. at Id. these cases do not render the clear and convincing standard as applied to Act 21 cases unconstitutional. Although H.R. from an arose initial finding that the Appellant was an SVDC pursuant to §6403 we find reason no likewise apply why to Superior the hearing a under Court's holding §6404 where the would not issues are substantially the same. We note that In H.R. re Pennsylvania supreme Court. is presently The court has on appeal held argument of the time of this writing no decision has been made. Supreme Court has we ruled, bound are by the to and Until superior the as the Court's holding set forth in In re H.R. Therefore, the clear and convincing evidence standard we applied in B.A.N.'s case is constitutional. Next, B.A.N. involuntary violation contends commitment of the is Eighth that the cruel indefiniteness of Act 21's and Amendment 13 unusual of the punishment united in states Constitution Art.I and Section of 13 Pennsylvania the Constitution. The Eighth Amendment applicable to Fourteenth the states Amendment Eighth the Constitution. and United States Constitution and and Constitution's Pennsylvania the punishment unusual v. Olds, A.3d 192 co -extensive is Fourteenth Amendments of the Commonwealth is clause of the through the due process probition against cruel with of the United States 1190 1188, n.3 (Pa.Super. 2018). The Eighth Amendment applies only after the state "has secured a formal adjudication of guilt" because, prior to that time, it has not acquired "the power to punish with which the Eighth Amendment is concerned". Tri Thanah Nguyen v. Franklin Cnty. Sheriff's Dep't., 512 Fed. Appx. 188, 190 (3d Cir. 2013) cert. denied,-U.S.133 S.Ct. 2774, 186 L.Ed.2d 224 (2013) quoting, Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). the Once convicted, Eighth Amendment prison then on duty imposes a officials to provide of "humane conditions confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). , Ingraham Imhoff v. Temas, v. 67 F.Supp, discussed As above, 708-09 (W.D.Pa. 2014). 3d 700, Act 21 hearing determines whether or not a person criteria for involuntary commitment. the court. for the Instead, civil children...and commitment for Act 21 commitment further provides involuntary §6401. Because Act entail formal adjudication of guilt" 14 and violent additional for Pa.C.S.A. "a 21 statutory meets the rights sexually treatment 21 is Act No punishment is imposed by "establishes of An punitive. not is for civil in said nature Imhoff, procedures delinquent periods of persons." 42 does not it supra and does violate not B.A.N.'S right to free be from cruel and applies only to unusual punishment. Although cases, the Amendment Eighth acknowledge that in we Pennsylvania its criminal can "principle" also be applied to civil cases. [T]he Pennsylvania Supreme Court has held that the principle embodied in the constitutional limitation against cruel and unusual punishment is applicable to all proceedings. Scranton City v. Peoples coal Co., 274 Pa 63, 117 A.673 (1922). Although the cruel and unusual punishment "principle" to all applies proceedings, its application in civil cases "occurs only when the issue to be determined is whether an abuse of discretion has taken place." Dragowski v. Commonwealth, 94 Pa Cmwlth. 205, 503 A.2d 104, 106 (1986). Gombach Dept. v. of State, 692 A.2d 1127, (Pa Cmwlth. 1131 1997) As seen the only Court which from the committed county the above discussion of B.A.N.'s proved him by to clear Torrance and after first issue, hearing a at evidence that convincing B.A.N. continues to have serious difficulty controlling sexually violent behavior while committed to in -patient treatment due to mental abnormality or personality disorder that makes him likely to engage in an act of sexual a period Committal of year; he is committed not indefinitely. only occurs after notice and a hearing when B.A.N. represented discretion one violence. He is only committed for by and counsel. Therefore, the "principle" we of cruel have and abused not unusual is our punishment has not been violated in this case. Finally, Protection B.A.N. Clauses Constitutions in argues of three the ways: that Act United Act 15 21 violates States and 21 treats the Equal Pennsylvania juveniles more harshly than adults violent sexually attend juvenile meets similar designation; criteria under under that SORNA's SORNA, a sexually violent predator is only required a outpatient who meet predator person found to be to who the treatment; statutory and that under criteria is Act required 21, a to be committed to inpatient treatment and the commitment could last a lifetime. We begin be applied by to setting forth the frame of analysis that must cases where the equal protection clause involved. have stated that in analyzing equal protection claims made under the Pennsylvania Constitution, we will use the standards the united States Supreme Court uses when analyzing equal protection claims made under the Fourteenth States united Amendment the of Constitution. Fischer [v. Department of Pub. welfare,] 502 A.2d [114,] [] 121 [Pa. 1985]. In Commonwealth v. Albert, 563 Pa 133, 758 A.2d 1149 (2000), we noted that the essence of the equal protection doctrine is that "'like persons in like circumstances will be treated similarly [X" but recognized that the right to equal protection "'does not absolutely prohibit the Commonwealth from the classifying individuals for purposes of receiving equal treatment [.]'" Id. at 1151 {citations omitted). We The legal framework for evaluating an equal protection challenge made statutory to a particular classification consists of three different types of classifications, each of which calls for its own standard of review. Fischer, 502 A.2d at 121. we have described this framework as follows: The types (1) of classifications are: classifications which implicate a "suspect" class or (2) a fundamental right; classifications implicating "important" an though not fundamental right or a "sensitive" classification; and (3) classifications which involve none of these. Should the statutory classification in the fall into question first category, the strictly statute is construed in light of "compelling" a governmental purpose; if the classification 16 is falls into the second category, a heightened standard of an scrutiny is to applied "important" governmental purpose; and if the statutory scheme falls into the third category, the statue is upheld if there is any rational basis for the classification. Albert, 758 A.2d at 1152 (citation omitted). Probst v. Com. Dept. of Transp., Bureau of Driver Licensing, 849 A.2d 1135, 1143-44. (Pa. 2004). Concise his In B.A.N. Complained of his arguments that Act 21 violates the Equal Clause by similar criteria patient Protection treating juveniles more harshly than adults who meet designation, and under by SORNA'S sexually involuntary predator violent committing persons for required to attend outpatient treatment have addressed in In re K,A.P.. Jr., 916 A.2d 1152 (Pa.Super. The juvenile basis to Act for treating similarly -situated at the 21 that Jr. argued and that Chapter 2007). "rational the 64 been lacked any juvenile offenders differently from adult He offenders. argued, inter that chapter 64 treats juvenile sex offenders more harshly than Megan's 20, K.A.P., in test applies rational alia, in- treatment whereas those found to be an SVP under SORNA only basis" Appeal, on does not state which classification Act 21 falls under. However, are Statement Errors Law 42 Pa.C.S.A. 2012 pursuant to 42 offenders, involuntary §9791 et seq. Pa.C.S.A. §9799.41) (expired treats similar adult specifically that juvenile offenders civil commitment, while December are subject adult offenders to under Megan's Law are subject "only" to notification and registration provisions. 17 The Superior court found rational a basis for this distinction. First, we note that the statute seeks to promote a legitimate public value. As Appellant himself notes, juveniles ordinarily leave the jurisdiction of the juvenile court system when they reach age 21. see 42 the Pa.C.S.A. 64, §6302. In passing chapter Legislature foresaw that some of these juveniles were sexual offenders (and potential re -offenders) in need the of treatment for for and their own benefit protection of the public. The Legislature provided a program of involuntary civil commitment to serve those needs. In these the absence of such a program, offenders would presumably be released outright once they reached age 21. [w]e note that the age distinctions in Chapter 64 are rationally related to that legitimate goal. While a similar program of civil commitment does not exist for adult offenders under Megan's Law, Appellant fails to recognize that adult sexual offenders usually serve a term of imprisonment before they are released. Adult offenders may also be subject to probation thereafter. Thus, the criminal justice system already exists to protect the public from adult offenders. we also note that state prisons may provide mental health services to sex offenders. Even if prisons do not provide such services, the Legislature may reasonably believe that juveniles are more amenable to treatment than adult offenders. Because we can see a rational basis for the Law, distinctions between Megan's chapter and 64 Appellant's equal protection claim fails. Id. at 1162 (footnote omitted). Although raised by similar to SORNA replaced Megan's B.A.N. comparing Act those decided in In 21 re Law, to we SORNA K.A.P. think the are issues substantially (comparing Act 21 to Megan's Law). Therefore, B.A.N.'s argument fails. B.A,N.'s last equal a juvenile who meets the protection argument, that under Act 21 statutory criteria is required to be committed to inpatient treatment and the commitment could last a 18 lifetime, has also been decided of favor in Act 21's constitutionality. First, the statutory the supra and remains criteria does the commitment to treatment of a juvenile who meets not issue has been violate the of duration the Superior Court in the case of the argument because it that dealt with Act implicates re juvenile's In protection equal of S.A., violated the 21 a In in There clause. commitment. that The supra was faced with clause protection equal right K.A.P., re physical to freedom. The Court agreed that the juvenile's was implicated and proceeded to inquire if the Commonwealth had a right to physical freedom compelling state interest addressed by the application of Act 21. [Section] 6401 evidences a desire by the General Assembly to establish civil commitment procedures _designed to provide necessary treatment to sexually violent delinquent children and to protect the public from danger. It is undisputed that the Commonwealth has a compelling interest in protecting its citizens from danger. Thus, we find that chapter 64 promotes a compelling state interest. As to the final consideration in regard to equal protection, particularly in light of inherent provisions contained in Act 21 for annual review, which serve as a means to guard against excessive commitment of a juvenile, we find that Act 21 is narrowly tailored to effectuate the state's interest in protecting the public. Consequently, we conclude that Appellant's claim that Act 21 violates principles of equal protection is without merit. In re S.A., 925 A.2d at 847 (citations omitted). B.A.N. has had a hearing pursuant to section 6404 of Act 21 every year Hospital. following Each time his the initial Court commitment to involuntarily Torrance State committed to Torrance for an additional one year period based upon the County 19 proving by clear and convincing evidence that case B.A.N.'s meets the statutory criteria. Act 21 does not commit B.A.N. to a mental health facility for the rest of his life. He will at Torrance only so long as he remain displays serious deficiencies in controlling his sexually violent behavior. Therefore, for the reasons set forth above, Act 21 does not violate the Equal Protection Clauses of the united states Pennsylvania Constitutions. Respectfully submitted, NOTICE IS 14151EV diW,N Oft"PHEENTRYOF THIS ORDER OR DECREE PURSUANT TO RULE P.C,P. 236 YOU ARE NOTIFIED THAT THIS ORDER/DOCUMENT HAS BEEN FILED IN THE. PROTHONOTARY'S OFFICE OF BERKS COUNTY AND THIS IS AN EXTRACT FROM THE.RECORD OF SAID COURT CERTIFIED THIS Tr DAY OF 20 390 0,h,nx.p.,Collo, Prot ,,, ,f onotary . Deputy 20 and