J-A11016-18

                                  2018 PA Super 396

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ZAMIR L. NOBLES                            :
                                               :
                      Appellant                :   No. 1095 MDA 2017

             Appeal from the Judgment of Sentence May 22, 2017
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0001731-2017


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

OPINION BY NICHOLS, J.:                               FILED OCTOBER 31, 2018

        Appellant Zamir L. Nobles appeals from the judgment of sentence

imposed after he entered a negotiated guilty plea to receiving stolen property,

firearms not to be carried without a license, and possession of a firearm by a

minor.1 Appellant claims that the trial court erred in denying his request for

credit for time spent at a juvenile detention facility under 42 Pa.C.S. §

9760(1). We remand for proceedings consistent with this opinion.

        The Commonwealth summarized the following facts giving rise to

Appellant’s conviction at the guilty plea hearing:

        On March 9 of 2017, [Appellant] was walking north in the 300
        block of Evergreen Street in the City of Harrisburg. At this point
        in time, Officer [Nathan W.] Ishman of the Harrisburg City Police
        observed [Appellant] produce a handgun and fire one round into
        the ground. He then observed [Appellant] discard the handgun to

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3925(a), 6110.1, and 6106(a)(1), respectively.
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       the west side of the street. At that point in time, the officer was
       able to locate a black and silver, [.]380-caliber Hi-Point,
       semiautomatic handgun. The firearm was loaded with one round
       in the chamber and four rounds in the magazine.

N.T. Guilty Plea & Sentencing Hr'g, 5/22/17, at 4-5. Appellant was seventeen

years old at the time of the incident.

       The trial court summarized the procedural history leading to Appellant’s

plea as follows:

       [Appellant] was taken into custody on March 9, 2017 and following
       a detention hearing remained securely detained at South
       Mountain Juvenile Detention Center (hereinafter “South
       Mountain”).[2] On March 15, 2017, a delinquency petition was filed

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2 See 42 Pa.C.S. § 6321 (a)(2.1), 6324(2) (relating to the commencement of
juvenile proceedings). Delinquency proceedings are governed by the Juvenile
Act, 42 Pa.C.S. §§ 6301-6375. We further note that Section 6327 provides,
in part:

       A child alleged to be delinquent may be detained only in:

       (1) A licensed foster home or a home approved by the court.

       (2) A facility operated by a licensed child welfare agency or one
       approved by the court.

       (3) A detention home, camp, center or other facility for delinquent
       children which is under the direction or supervision of the court or
       other public authority or private agency, and is approved by the
       Department of Public Welfare.

       (4) Any other suitable place or facility, designated or operated by
       the court and approved by the Department of Public Welfare.

       Under no circumstances shall a child be detained in any facility
       with adults, or where the child is apt to be abused by other
       children.

42 Pa.C.S. § 6327(a).



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       alleging [Appellant] committed the delinquent acts of: (1)
       Receiving Stolen Property; (2) Firearms Not to be Carried Without
       a License; (3) Possession of Firearm Prohibited; (4) Possession of
       a Firearm by Minor; and (5) Tamper With or Fabricate Physical
       Evidence. At the transfer hearing on April 10, 2017, [Appellant]
       waived his charges to the adult criminal justice system pursuant
       to a negotiated plea agreement.[3] He was represented by Corey
       Korinda, Esquire. [That same day Appellant was transferred from
       South Mountain to the Dauphin County Prison.]

       On May 22, 2017, [Appellant] entered a negotiated plea
       agreement wherein he ple[]d guilty to Count One (receiving stolen
       property), Count Two (firearms not to be carried [with]out a
       license), and Count Four (possession of firearm by a minor). The
       remaining charges were withdrawn by the Commonwealth.

Trial Ct. Op., 9/5/17, at 1-2 (footnotes omitted). The plea agreement called

for an aggregate sentence of fifteen to thirty months’ imprisonment.           N.T.

Guilty Plea & Sentencing Hr’g at 5.

       Of relevance to this appeal, Appellant requested credit for time spent at

South Mountain from March 9 to April 10, 2017. Id. at 7. Appellant’s counsel

noted that at South Mountain, Appellant’s room was locked, the doors to the

facility were locked, and the facility was surrounded by a fence.         Id. at 8.

Appellant’s counsel further asserted that the structure of the program was

“designed strictly for detention leading up to [an] adjudication or transfer

hearing” and not for treatment. Id. at 9. According to Appellant’s counsel,

juveniles at the facility did not have a right to talk and socialize in the morning,

but were required to earn this privilege, which would then be extended “in the

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3See 42 Pa.C.S. § 6355(c) (relating to a child’s request for the transfer of
matter from juvenile court for prosecution in a criminal proceeding).

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evening hours for dinner.” Id. Appellant’s counsel argued that Appellant’s

time at South Mountain constituted “a custodial detention” for the purposes

of credit for time served. Id.

      The Commonwealth objected to Appellant’s request for credit for time

spent at South Mountain.      The Commonwealth averred that it “only had

considered the time that [Appellant] was spending at Dauphin County Prison

when this plea was negotiated” and requested that the “negotiation be

honored in this case.” Id. at 10. Additionally, the Commonwealth suggested

that the award of credit for time spent at South Mountain was discretionary

with the trial court. Id. at 13.

      Appellant responded that the terms of the plea agreement did not

preclude him from seeking credit and that he informed the Commonwealth of

his time credit request for time spent at South Mountain. Id. at 10. The

Commonwealth agreed that the agreement did not preclude Appellant’s

request for credit, but noted that Appellant did not indicate his intent to seek

credit until after the parties negotiated the fifteen-to-thirty month sentence.

Id.

      The trial court concluded that Appellant was not entitled to credit for the

time spent at South Mountain and sentenced Appellant to the negotiated

aggregate term of fifteen to thirty months’ imprisonment, with credit for time

served in Dauphin County prison from April 10 to May 22, 2017. The trial

court recommended that Appellant be confined to the State Correctional

Institution at Pine Grove, which focuses on juvenile offenders.

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      Appellant timely filed a post-sentence motion, which the trial court

denied on June 30, 2017. Appellant timely appealed and submitted a court-

ordered Pa.R.A.P. 1925(b) statement, in which he asserted that he was

entitled to credit for the time he spent at South Mountain.

      The trial court, in its Pa.R.A.P. 1925(a) opinion, offered two reasons for

denying Appellant’s request for credit for time spent at South Mountain. First,

the court construed Appellant’s claim as a challenge to the discretionary

aspects of the sentence.    See Trial Ct. Op. at 2.     The court opined that

Appellant’s   negotiated   sentence   appropriately    considered   Appellant’s

rehabilitative needs. Id. at 6. The court emphasized that it “would not have

accepted the negotiated plea agreement” if it “believed that it was required to

give credit for detention time.” Id. at 7.

      Second, the trial court suggested that it retained the discretion to deny

credit for time spent at South Mountain under Section 9760. Id. at 6 (citing

Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005); Commonwealth v.

Toland, 995 A.2d 1242 (Pa. Super. 2010); Commonwealth v. Fowler, 930

A.2d 586 (Pa. Super. 2007); and Commonwealth v. Conahan, 589 A.2d

1107 (Pa. Super. 1991)). Further, the court concluded that Appellant was not

entitled to credit for time spent at South Mountain because “the charges were

originally brought under the Juvenile Act and were subject to the provisions

of the Juvenile Act until Appellant waived his charges to the adult criminal

system.” Id. at 5. Consequently, the court determined “when a juvenile is in




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J-A11016-18



detention, it is not pursuant to ‘criminal charges,’ but rather a juvenile petition

alleging delinquent conduct.” Id.

      Appellant presents the following question for review:

      Is not [Appellant] entitled as a matter of right to the award of
      sentencing credit under 42 Pa.C.S. § 9760(1) for time spent at
      custody in a secure juvenile detention facility after his arrest and
      prior to his transfer to adult court pursuant to 42 Pa.C.S. § 6355?

Appellant’s Brief at 5. Appellant presents two arguments in support of his

claim. We address each argument in turn.

      First, Appellant argues that the trial court mischaracterized his request

for credit as a challenge to the discretionary aspects of the sentence. Id. at

14. Appellant asserts that the plea agreement did not waive his right to seek

credit for time served and argues the trial court erred by referencing his

negotiated sentence. Id. at 31.

      The Commonwealth does not directly respond to Appellant’s argument

that his challenge should not be regarded as a challenge to the discretionary

aspects of the sentence.      However, the Commonwealth reiterates that it

opposed Appellant’s request for credit for time spent at South Mountain

because during plea negotiations, it only considered Appellant’s eligibility for

credit for time served in county prison.      Commonwealth’s Brief at 6.       The

Commonwealth further notes:

      Due to [Appellant’s] negotiated plea agreement, [Appellant] was
      only sentenced to a term of 15 to 30 months of incarceration and
      a fine of only 550 dollars. The sentence is below the mitigated
      range of 18 months and it is far below the maximum penalty of


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J-A11016-18


       22 years of incarceration. The sentence is appropriate under
       Pennsylvania’s sentencing code.

Id.

       At the outset, we conclude that the trial court’s analysis of Appellant’s

claim for sentencing credit as a challenge to the discretionary aspects of the

sentence is misplaced. Instead, it is well settled that “[a] challenge to the

trial court’s failure to award credit for time spent at custody prior to sentencing

involves the legality of sentence[.]”4 Commonwealth v. Fowler, 930 A.2d

586, 595 (Pa. Super. 2007) (citation and quotation marks omitted).

       We note, however, that a defendant may waive his statutory right to

sentencing credit. See Commonwealth v. Byrne, 833 A.2d 729, 734 (Pa.

Super. 2003). In Byrne, the defendant acknowledged in his plea agreement

that he would only receive credit for time served for a period of one year and

that he was waiving all other time served in prison against a negotiated

sentence of ten to twenty years’ imprisonment.5 Id. at 731. The defendant


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4 Indeed, because Appellant negotiated the length of his sentence, there is no
basis for this Court to consider a challenge to the discretionary aspects of the
length of the sentence imposed. See Commonwealth v. Brown, 982 A.2d
1017, 1019 (Pa. Super. 2009) (noting that “where a defendant pleads guilty
pursuant to a plea agreement specifying particular penalties, the defendant
may not seek a discretionary appeal relating to those agreed-upon penalties”
(citation omitted)).

5 As noted in Byrne, the written plea colloquy contained eight paragraphs
relating to the defendant’s waiver of his right to credit for time served, and
the trial court conducted an oral colloquy on the same issue. See Byrne, 833
A.2d at 731-32. We add that Byrne did not decide the issue of credit based



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J-A11016-18



did not take a direct appeal, but filed a Post Conviction Relief Act6 (PCRA)

petition asserting that he was entitled to all time he served in prison under 42

Pa.C.S. § 9760(2).

        The Byrne Court affirmed the PCRA court’s dismissal of the claim. Of

relevance to this appeal, this Court recognized that the defendant had a

statutory right to credit for time served in prison and that his claim went to

the legality of his sentence.       See id. at 734-35.   Nevertheless, this Court

concluded that the defendant expressly acquiesced and agreed to the one

year’s credit and thus waived credit for the remainder of the time spent in

pretrial custody. Id. at 734.          The Byrne Court observed that it “would

undermine the designs and goals of plea bargaining, and would make a sham

of the negotiated plea process” if the defendant were to avoid “a specific term

negotiated as part” of his plea. Id. at 735 (citations omitted).

        In contrast to Byrne, the record here established that Appellant made

his intent to seek credit for time served at South Mountain clear. See N.T.,

Plea & Sentencing Hr’g at 10. The Commonwealth did not seek to modify its

offer, believing that Appellant’s request would be denied.              See id.

Consequently, no specific term of the plea agreement prohibited Appellant




____________________________________________


on the length of the negotiated sentence. See generally Brown, 982 A.2d
at 1019.

6   42 Pa.C.S. §§ 9541-9546.


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J-A11016-18



from seeking credit or suggested that Appellant knowingly waived his claim.

See Byrne, 833 A.2d at 731.

        Under these circumstances, we agree with Appellant that the references

to the negotiated sentence by the trial court and the Commonwealth are not

relevant to the legal question of Appellant’s time credit request for time spent

at a juvenile detention facility. See id. at 734. Moreover, in the absence of

a specific term regarding credit, the integrity of the plea negotiation process

is not jeopardized by Appellant’s claim for relief. See Brown, 982 A.2d at

1019; Byrne, 833 A.2d at 735.                  Accordingly, we decline to consider

Appellant’s issue as a challenge to the discretionary aspects of sentencing

claim.7 See Fowler, 930 A.2d at 595.

        Second, Appellant argues that the trial court misapplied Section 9760

when denying his request for credit for time spent at South Mountain. By way

of a brief summary, Appellant asserts that this is a case of first impression in

Pennsylvania, but that the rules of statutory construction and case law support

his claim for relief. See Appellant’s Brief at 12, 22-24. The Commonwealth

responds that Appellant is seeking an unwarranted expansion of Section 9760

to include juvenile detention facilities. See Commonwealth’s Brief at 7, 9, 11.

We expand on Appellant’s and the Commonwealth’s arguments below.

        As noted above, the issue regarding credit for time served involves the

legality of sentence. Fowler, 930 A.2d at 595. Because the legality of a

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7   We discuss below whether the credit was discretionary in further detail.

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J-A11016-18



sentence raises questions of law, our standard of review is de novo, and our

scope of review is plenary. Commonwealth v. Gibbs, 181 A.3d 1165, 1166

(Pa. Super. 2018); accord Kyle, 874 A.2d at 17.

      Moreover, the question of credit raises issues of statutory construction.

See Kyle, 874 A.2d at 17. “The object of any judicial exercise in statutory

interpretation is to ascertain and effectuate legislative intent. When the words

of a statute are clear and free from all ambiguity, they are presumed to be

the best indication of legislative intent.” Commonwealth v. Cullen-Doyle,

164 A.3d 1239, 1242 (Pa. 2017) (citation and quotation marks omitted).

      Section 9760(1) provides:

      Credit against the maximum term and any minimum term shall be
      given to the defendant for all time spent in custody as a result of
      the criminal charge for which a prison sentence is imposed or as
      a result of the conduct on which such a charge is based. Credit
      shall include credit for time spent in custody prior to trial, during
      trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1).

      Section 9760(1) contains two general elements: (1) the time must be

“spent in custody” and (2) the time must be “as a result of the criminal charge

for which a prison sentence is imposed or as a result of the conduct on which

such a charge is based.” See 42 Pa.C.S. § 9760(1). If both conditions are

met, then the defendant is entitled to credit as of right. See Commonwealth

v. Menezes, 871 A.2d 204, 209 (Pa. Super. 2005) (“Pennsylvania law

generally interprets the term ‘shall’ in legislative enactments to declare a

mandatory duty.”).

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       As to the “in custody” requirement, Appellant asserts that “‘custody’ and

‘imprisonment’ are almost synonymous, but that ‘imprisonment’ can include

time spent in an institutional setting other than an actual jail or penitentiary.”

Appellant’s Brief at 14 (citing, in part, Kyle and Commonwealth v.

Conahan, 589 A.2d 1107 (Pa. 1991)).                Appellant emphasizes that

Pennsylvania courts have found that a defendant’s placement at a community

corrections center, a “restrictive drug/alcohol rehabilitative facility,” and a

“forensic mental health hospital” constituted “custody” for the purpose of

Section 9760(1). Id. at 15-17.8 Appellant concludes that his placement at

South Mountain satisfied the “in custody” requirement of Section 9760(1)

because

       [his] forced detention at the South Mountain secure juvenile
       facility had many more trappings of a prison than the community
       corrections center and a rehabilitation facility. In effect, [he] was
       housed in a “juvenile prison.” Accordingly, it is clear that forced
       detention at a secure juvenile facility like South Mountain
       (Abraxas) is embraced by the expanded definition of the term
       reflected in the Pennsylvania jurisprudence.

Id. at 24-25.

       The Commonwealth responds that Section 9760 “does not define the

term custody as meaning time spent in a juvenile facility.” Commonwealth’s
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8In support of these propositions, Appellant cites McMillian v. Pennsylvania
Bd. of Probation and Parole, 824 A.2d 350 (Pa. Cmwlth. 2003) (discussing
a community corrections center), Commonwealth v. Cozzone, 593 A.2d 860
(Pa. Super. 1991) (discussing rehabilitation facility), and Commonwealth v.
Jones, 236 A.2d 834 (Pa. Super. 1967) (discussing a defendant’s
commitment to a state hospital).


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J-A11016-18



Brief at 8. The Commonwealth further argues that the Pennsylvania Supreme

Court has “adhered to strict statutory construction in determining the meaning

of custody as time spent in prison.” Id. at 10 (citing Kyle, 874 A.2d at 16-

18).

       In Jones, this Court held that time spent at a state hospital constituted

time “in custody.” Jones, 236 A.2d at 836. We reasoned that “‘[c]ustody’,

in criminal law, is the same thing as detention, in civil law, and is synonymous

with ‘imprisonment’. ‘Imprisonment’ is the detention of a person contrary to

his will.”9 Id. (citation omitted). In Commonwealth v. Usher, 399 A.2d

1129 (Pa. Super. 1979) (per curiam), the defendant spent nearly six months

at “Abraxas”10 during his probation and was later sentenced to one-and-a-half
____________________________________________


9 Jones applied the former 19 P.S. § 898, a predecessor of Section 9760. The
Jones Court noted that since 1937, the General Assembly has used the term
“custody” when computing the run date of a sentence or the amount of credit.
See Jones, 236 A.2d at 835 (discussing 19 P.S. § 894 (“[A]ll sentences for
criminal offenses of persons who at the time sentence is imposed are held in
custody in default of bail, Or otherwise, shall begin to run and be computed
from the date of commitment for the offense for which said sentence shall be
imposed[.]”) and 19 P.S. § 898 (“Any person who has been convicted of an
offense in any court in this Commonwealth and sentenced to a term of
imprisonment shall be given credit toward the service of his sentence for any
days spent In custody on this offense prior to the imposition of his sentence,
including any days spent in custody on this offense prior to the entry of
bail.”)).

10The Usher Court also applied former Section 898. We note that the Court
described “Abraxas” and the facility at issue in that case as follows:

       Abraxas Foundation, Inc. is a non-profit organization operating a
       comprehensive residential treatment program as an alternative to
       incarceration for youthful offenders, with a grant from the



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to five years’ imprisonment for probation violations. Id. The Usher Court

relied on Jones to conclude that the defendant was entitled to credit for time


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       Pennsylvania Governor’s Council on Drug and Alcohol Abuse.
       However, its principal source of income is received from the
       county or juvenile court which refers subjects to it.

       Act 63, passed June, 1972, gave sentencing courts several options
       for the treatment and rehabilitation of first offenders in drug and
       alcohol related cases. Its intent was to keep youthful offenders
       out of the penal system and, instead, involve them in viable
       treatment programs. Its facility known as Abraxas I, where [the
       defendant] was required to go as a condition of probation, is
       located six miles North of Marienville, Pennsylvania, on a fifty acre
       tract of land completely surrounded by the Allegheny National
       Forest and accessible only by dirt roads six miles into the forest
       from the nearest village.

       Security measures to prevent its subjects from walking away
       consist of a “head count” made regularly on a 24 hour a day basis
       plus a program arrangement which compels each resident to be
       in a given place at a given time. The “head counts” occur at least
       every hour, and at times, more frequently. There are no armed
       guards but the isolation is such that it discourages walking away.
       However, if such occurs, the attendants make a search of the
       area, then notify the local police and the probation office, parole
       office or court which has jurisdiction over the person. Sometimes,
       search warrants are secured and the person arrested.

       On discharge, the person’s probation officer is notified to arrange
       transportation back to the sentencing county and occasionally the
       person is housed in the local county jail or hospital until that can
       be arranged.

       During the period a person is at the facility, he is supplied with all
       necessities except clothing which his family must provide. These
       expenses are paid from state or federal funds.

Usher, 399 A.2d at 1129-30. The Abraxas facility in Usher does not appear
to be the same as South Mountain.



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spent in “a comprehensive residential treatment program as an alternative to

incarceration for youthful offenders.” Usher, 399 A.2d at 1129.

       In contrast, in Kyle, the Pennsylvania Supreme Court addressed

whether a defendant was entitled to credit for time spent on bail release under

electronic monitoring. See Kyle, 874 A.2d at 17. The Kyle Court initially

noted that while “custody” was not defined by statute, “[c]ourts have

interpreted the word ‘custody,’ as used in Section 9760, to mean time spent

in an institutional setting such as, at a minimum, an inpatient alcohol

treatment facility.” Id. at 18 (citations omitted) (emphasis added).

       Following an extensive review of the case law, the Kyle Court held “that

time spent on bail release, subject to electronic monitoring, does not qualify

as custody for purposes of Section 9760 credit against a sentence of

incarceration.” Id. at 20. The Court reasoned that “[r]elease on any form of

bail necessarily restricts one’s liberty, but release to one’s home on bail

subject to electronic monitoring does not reach the level of restriction that

necessarily attends placement in an institutional setting.”11 Id. at 22.
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11  The Kyle Court also specifically rejected a “case-by-case test for
determining whether a person on an electronic monitoring program has spent
time in Section 9760 custody, which would require the examination of the
extent of control exercised by those in authority in the program.” Kyle, 874
A.2d at 19-20. According to the Court, the implementation of a bright-line
rule “obviate[s] the necessity of evidentiary hearings into the particulars of
each electronic monitoring program around the Commonwealth” and “also has
the salutary benefit of avoiding inconsistent results in these matters, based
on perceived nuances in various programs across the Commonwealth.” Id.
at 22.



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       Following our review, there is little apparent dispute that the time spent

at South Mountain constitutes an institutional setting with conditions at least

as restrictive as an inpatient rehabilitative facility.12     The Pennsylvania

Supreme Court has recognized that the term “in custody” may mean time

spent in an institutional setting short of prison. See id. at 18. This Court has

also previously concluded that time spent at an institutional “youthful

offender” facility constituted “custody” within the meaning of a predecessor

statute of Section 9760(1). See Usher, 399 A.2d at 1129.

       Nevertheless, Appellant’s counsel only described the conditions of

Appellant’s time at South Mountain during argument and in post-sentence

motions. See N.T. Guilty Plea & Sentencing Hr’g at 9; Post-Sentence Mot.,

5/30/17, ¶ 8.      Although the Commonwealth and the trial court have not

disputed the veracity of counsel’s descriptions, the trial court did not make

the specific findings of fact necessary to determine whether the time Appellant

spent at South Mountain was “in custody.” Because this Court is not a finder

of fact, it is necessary to have the trial court place on the record its findings

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12Although not discussed by the parties, we note that the Juvenile Act contains
numerous provisions minimizing or prohibiting the time a juvenile is exposed
to adult “lockup” or “jail.” See 42 Pa.C.S. §§ 6326(b), (c); 6327(c); accord
In re J.M., 42 A.3d 348, 349-55 (Pa. Super. 2012) (holding that a juvenile
may not be incarcerated in an adult facility for a probation violation). The
comment to Section 6327 suggests that the provisions limiting the place of
detention are “designed to avoid the harm resulting from exposing children to
adult criminals and the degrading effect of jails, lockups, and the like.” 42
Pa.C.S. § 6327 cmt. However, the comment also states “[t]he limitations
imposed upon the place of detention reflect that this is custodial detention
prior to adjudication of delinquency . . . .” 42 Pa.C.S. § 6327 cmt.

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regarding the nature of the facility, the degree of supervision under which

Appellant was subject, and the degree of liberty he may have enjoyed while

at South Mountain. Cf. Usher, 399 A.2d at 1129-30.

      To determine whether a remand is necessary, we next consider whether

Appellant met the second element of Section 9760(1)—that the time served

be “as a result of the criminal charge for which a prison sentence is imposed

or as a result of the conduct on which such a charge is based.” See 42 Pa.C.S.

§ 9760(1). Additionally, we must address the Commonwealth’s and the trial

court’s contention that credit under the circumstances of this case is

discretionary rather than mandatory.

      As to the second element of Section 9760(1), Appellant contends that

the trial court erred in focusing on whether the time he spent at South

Mountain was “a result of a criminal charge.”         Appellant’s Brief at 25.

Specifically, Appellant asserts that the trial court improperly focused on the

fact that Appellant was held at South Mountain based under the Juvenile Act

until he waived the matter to the criminal system.        See id.   In support,

Appellant argues that the trial court’s “overly mechanistic definition” of the

term “criminal charge” was not warranted, noting that both the filing of a

criminal complaint and a written allegation of juvenile delinquency use “highly

similar language in describing the entirety of the charging function” in terms

of alleged “offenses.” Id. at 26. Alternatively, Appellant contends that the

trial court contravened settled principles of statutory interpretation by failing




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to consider whether the time he spent at South Mountain was “as a result of

conduct on which such a charge is based.” Id. at 25-26.

      The Commonwealth’s response mirrors that of the trial court.          The

Commonwealth asserts that Appellant “should not be entitled to pre-

sentencing time spent in [South Mountain] because he was under control of

the Juvenile Act.” Commonwealth’s Brief at 7. In support, the Commonwealth

cites Commonwealth v. Hollawell, 604 A.2d 723 (Pa. Super. 1992) for the

proposition that “time credit should not be given unless the defendant is in

custody due to criminal charges.” Id. at 7-8. The Commonwealth concludes

that “[w]hen a juvenile is held in a detention facility, it is not pursuant to

criminal charges, but rather a juvenile petition alleging delinquent conduct.”

Id. at 7.

      As noted above, Section 9760 requires that the trial court grant credit

for “all time spent in custody as a result of the criminal charge for which

a prison sentence is imposed or as a result of the conduct on which such

a charge is based.” See 42 Pa.C.S. § 9760(1) (emphases added). This

Court must interpret “or” in “its normal disjunctive meaning” unless such an

interpretation would produce an absurd result.            Commonwealth v.

Pilchesky, 151 A.3d 1094, 1098 (Pa. Super. 2016), appeal denied, 174 A.3d

1028 (Pa. 2017) (citations omitted).

      Here, the time Appellant spent in South Mountain was directly related

to his possession and discharge of a stolen firearm. This conduct formed the

basis for the criminal charges to which Appellant ultimately pled guilty, namely

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receiving stolen property, possessing a firearm without a license, possession

of a firearm by a minor. Although the charges were initially brought under

the Juvenile Act, they resulted in criminal charges for which sentence was

imposed.       Thus, Section 9760(1) applies, and Appellant’s time at South

Mountain was “as a result of the conduct on which his criminal charges were

based.”13 See Cullen-Doyle, 164 A.3d at 1242 (“When the words of a statute

are clear and free from all ambiguity, they are presumed to be the best

indication of legislative intent.”). Therefore, we agree with Appellant that the

trial court’s focus on the fact that Appellant was being held pursuant to a

juvenile proceeding and not “criminal charges” when at South Mountain was

too narrow under Section 9760(1).

       Lastly, we consider whether the trial court retained the discretion to

deny Appellant’s time credit request for time spent at South Mountain. See

Trial Ct. Op. at 6. Appellant argues that the instances in which the trial court

retains discretion to deny a request for credit is limited to when a defendant

voluntarily admits himself to a rehabilitative facility before trial. Appellant’s

Brief at 18.

       The Pennsylvania Supreme Court has recognized that credit may be

awarded in the trial court’s discretion. In Conahan, a defendant voluntarily

admitted himself into a rehabilitation facility following his arrest for driving

____________________________________________


13We find the Commonwealth’s reliance on Hollawell to be misplaced as that
case stands for the proposition that a defendant is not entitled to have time
spent in custody “double counted” on separate offenses.

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under the influence. Conahan, 589 A.2d at 1108. The trial court sentenced

the defendant to the mandatory minimum thirty-day sentence under former

section 3731(e), awarded the defendant credit for his “custodial treatment,”

and immediately paroled the defendant.             Id.   The trial court specifically

concluded that the defendant’s time in a “restrictive treatment facility”

constituted “imprisonment” within the meaning of former section 3731(e). Id.

       The Conahan Court affirmed the trial court’s ruling. Specifically, the

Court determined that the definition of “imprisonment” and “custody” included

more than involuntary confinement in prison.             Id. at 1109.     The Court

concluded “successful completion of this custodial inpatient rehabilitation . . .

falls within the common meaning of ‘imprisonment’ and is a sufficient

‘institutional setting’ as contemplated by this Court in [Commonwealth v.

Kriston, 588 A.2d 898 (Pa. 1991)14].” Id. The Court, however, emphasized

that the defendant was not entitled to credit as a matter of law:

       Clearly, our acceptance of this type of inpatient “institutional
       rehabilitation” in no way entitles one accused of driving under
       the influence of alcohol to a credit for such rehabilitative
       commitment as of right. Rather, it is only an express approval of
       credits for such commitment that the sentencing court in its
       discretion deems to be sufficient. Accordingly, we hold that the
       trial court properly sentenced [the defendant] to the mandatory
       minimum term of imprisonment, and then acted well within its
       discretion in awarding [the defendant] a credit of thirty days for
       time served in inpatient institutional rehabilitation and in granting
       him immediate parole.


____________________________________________


14We note that Kriston involved a case involving house arrest. See Kyle,
874 A.2d at 17.

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J-A11016-18



 Id. at 1110 (emphases in original).

      Subsequently, in Cozzone, the defendant was admitted to an alcohol

treatment facility as a condition of bail. Cozzone, 593 A.2d at 866. The trial

court denied his request for credit, and in the ensuing appeal, this Court

concluded that Appellant was entitled to credit for the time spent at the

treatment facility. Specifically, this Court relied on Conahan to reject the

Commonwealth’s argument that “an alcohol rehabilitation program” lacked

traditional aspects of confinement. Id. at 866. However, the Cozzone Court

noted the defendant before that Court “did not voluntarily admit himself to an

alcohol treatment facility, but entered the rehabilitation facility as a condition

of bail in order to avoid pre-trial imprisonment.” Id. at 867. Accordingly, the

Court concluded that the defendant was “entitled to credit.”          Id. at 868

(emphasis added).

      In Toland, this Court summarized the interaction of Conahan and

Cozzone as follows:

      Looking at these cases together, therefore, it seems that whether
      a defendant is entitled to credit for time spent in an inpatient drug
      or alcohol rehabilitation facility turns on the question of
      voluntariness. If a defendant is ordered into inpatient treatment
      by the court, e.g., as an express condition of pre-trial bail, then
      he is entitled to credit for that time against his sentence. By
      contrast, if a defendant chooses to voluntarily commit himself to
      inpatient rehabilitation, then whether to approve credit for
      such commitment is a matter within the sound discretion of the
      court.




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J-A11016-18



Toland, 995 A.2d at 1250-51 (citation omitted).           Therefore, the issue of

voluntariness and choice are factors in determining whether credit is

appropriate or is required. See id.

        Instantly, Appellant had no choice in his detention as a juvenile and

before his transfer to criminal court. See Trial Ct. Op. at 1 (indicating that

Appellant “remained securely detained at South Mountain” following a

detention hearing); see also 42 Pa.C.S. §§ 6326(a).15 Thus, we agree with
____________________________________________


15   Section 6326 states, in relevant part:

        A person taking a child into custody, with all reasonable speed and
        without first taking the child elsewhere, shall:

           (1) notify the parent, guardian or other custodian of the
           apprehension of the child and his whereabouts;

           (2) release the child to his parents, guardian, or other
           custodian upon their promise to bring the child before the court
           when requested by the court, unless his detention or shelter
           care is warranted or required under section 6325 (relating to
           detention of child); or

           (3) bring the child before the court or deliver him to a
           detention or shelter care facility designated by the court
           or to a medical facility if the child is believed to suffer from a
           serious physical condition or illness which requires prompt
           treatment. He shall promptly give written notice, together with
           a statement of the reason for taking the child into custody, to
           a parent, guardian, or other custodian and to the court.

42 Pa.C.S. § 6326(a)(1)-(3) (emphasis added).              Section 6325 further
provides:

        A child taken into custody shall not be detained or placed in shelter
        care prior to the hearing on the petition unless his detention or
        care is required to protect the person or property of others or of
        the child or because the child may abscond or be removed from



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Appellant that the trial court erred in concluding that its determination of

credit was discretionary. To the contrary, because Appellant’s involuntary

detention directly related to the criminal charges for which a sentence was

imposed, the statutory language that “credit . . . shall be given” would divest

the trial court of any discretion to deny Appellant’s request for credit so long

as Appellant was in fact “in custody.” See Toland, 995 A.2d at 1250-51; see

also Menezes, 871 A.2d at 209. (“Pennsylvania law generally interprets the

term ‘shall’ in legislative enactments to declare a mandatory duty.”).

       In sum, we conclude that the trial court must make further factual

findings regarding the nature of the facility at South Mountain and the

conditions of Appellant’s detention to determine whether Appellant was “in

custody” for the purposes of Section 9760(1). If the trial court finds Appellant

was “in custody,” then both elements of Section 9760(1) have been met, and

Appellant will be entitled to credit for time served. In that event, the trial

court may correct its sentence to include credit.

       Accordingly, we remand this matter for reconsideration of Appellant’s

request for credit. The trial court may convene a hearing at which the parties


____________________________________________


       the jurisdiction of the court or because he has no parent, guardian,
       or custodian or other person able to provide supervision and care
       for him and return him to the court when required, or an order for
       his detention or shelter care has been made by the court pursuant
       to this chapter.

42 Pa.C.S. § 6325.


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J-A11016-18



may present any additional evidence regarding the nature of the South

Mountain facility and the restraint placed on juveniles awaiting adjudication or

transfer.

      Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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