COMMONWEALTH OF PENNSYLVANIA v. JOSEPH DEAN BUTLER
No. 25 WAP 2018
Supreme Court of Pennsylvania, Western District
DECIDED: MARCH 26, 2020
ARGUED: October 16, 2019
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Appeal from the Order of the Superior Court entered October 31, 2017 at No. 1225 WDA 2016, reversing the Judgment of Sentence of the Court of Common Pleas of Butler County dated August 4, 2016 at No. CP-10-CR-0001538-2014 and remanding.
JUSTICE DOUGHERTY
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
I. Background
On July 27, 2015, appellee Joseph Dean Butler pled guilty to statutory sexual assault and corruptiоn 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
In a divided, published opinion, a three-judge panel of the Superior Court considered, sua sponte, whether the procedure for making SVP determinations under
[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.
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).
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
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
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 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 scienter10 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, 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” 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 probаtion. 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 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 privаte 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
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
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 еnrolled as a student.
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
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 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 329-30. 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 thе General Assembly intended Subchapter H to be a civil regulatory scheme, as opposed to a criminal punitive scheme. Id. at 34, citing
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 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 arguеs 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 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 а 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 assessment, which is not linked to
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 nonрunitive 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, 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 tо 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
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
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
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 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 espeсially 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 sеx 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 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
VI. Analysis
The threshold question for determining whether Apprendi and Alleyne are relevant to a constitutional analysis of
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
Thе parties apparently agree that the General Assembly‘s stated intention is that
In analyzing the General Assembly‘s purpose in enacting
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
B. Mendoza-Martinez Factors
We next consider the Mendoza-Martinez factors to determine whether the RNC requirements in
i. Whether the Sanction Involves an Affirmative Disability or Restraint
Although in Muniz we distinguished Williams II by noting the counseling requirement
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 impоsed on an individual who has either been released after serving a prison sentence, or has been sentenced to probation in lieu of prison time. 42
Pa.C.S. § 9754 . These conditions can include psychiatric treatment, limitations on travel, and notifying a probation officer when any change of employment or residency occurs.42 Pa.C.S. § 9754(c) . Probationers are also subject to incarceration for a violation of any condition of their probation.42 Pa.C.S. § 9771 .Like the conditions imposed on probationers, registrants under
SORNA must notify the state police of a change in residence or employment.42 Pa.C.S. § 9799.15(g) . Offenders also face incarceration for any 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
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
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
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
v. Whether the Behavior to which the Sanction Applies is Already a Crime
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.”
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
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
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
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
Chief Justice Saylor and Justices Baer, Todd, Donohue and Wecht join this opinion.
Justice Mundy files a concurring opinion.
Notes
(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.
(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 оf Corrections, the board and the Pennsylvania State Police.