J-A07044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :    IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :         PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JOSE FIGUEROA, JR.                       :
                                          :    No. 1084 MDA 2017
                     Appellant            :

            Appeal from the Judgment of Sentence June 23, 2017
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0003340-2017,
                          CP-22-CR-0003341-2017


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                FILED JUNE 22, 2018

      The issue of whether Appellant Jose Figueroa, Jr., is entitled to credit

for time he spent in a juvenile detention facility prior to the transferring of his

cases to the adult criminal division and entry of his guilty plea is a matter of

statutory interpretation.

      The right to credit for time served is statutory in nature and arises from

42 Pa.C.S.A. § 9760. Statutory interpretation of Section 9760 is “a question

of law, and our review, as an appellate court, is plenary.” In re L.C., II, 900

A.2d 378, 380 (Pa.Super. 2006).          “The object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly.” 1 Pa.C.S.A. § 1921(a).

      Section 9760 provides, in relevant part, the following:


____________________________________
* Former Justice specially assigned to the Superior Court.
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             (1) 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.A. § 9760(1).

      Thus, “credit for time served is generally reserved for situations where

the defendant is ‘in custody.’”      Commonwealth v. Martz, 42 A.3d 1142,

1145 (Pa.Super. 2012) (quotation omitted). This Court has recognized that

“[t]he principle underlying [Section 9760] is that a defendant should be given

credit for time spent in custody prior to sentencing for a particular offense.”

Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa.Super. 2007).

      “The easiest application of Section 9760(1) is when an individual is held

in [an adult] prison pending trial, or pending appeal, and faces a sentence of

incarceration:   in   such   a     case,   credit   clearly   would   be   awarded.”

Commonwealth v. Shull, 148 A.3d 820, 847 (Pa.Super. 2016) (internal

quotation omitted). However, the statute provides little explicit guidance in

resolving the issue where the defendant spent time somewhere other than in

an adult prison. See id.         “This difficulty results in part from the fact that

neither Section 9760, nor any other provision of the Sentencing Code, defines

the phrase ‘time spent in custody.’”         Shull, 148 A.3d at 847 (quotations

omitted).



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      However, this Court has recognized that the Legislature used the

broader term “custody” instead of “imprisonment” in Section 9760.

Commonwealth v. Druce, 868 A.2d 1232 (Pa.Super. 2005). Accordingly,

this Court has held that under Section 9760 “custody includes forms of

restraint other than imprisonment.”              Id. at 1236 (citation omitted).

Specifically, we have held that “time spent in custody” includes time “served

in   a       court-ordered    inpatient     [adult]     rehabilitation    program[.]”

Commonwealth v. Lee, 182 A.3d 481, 485 (Pa.Super. 2018) (citation

omitted).

      On the other hand, this Court has held that “custody” does not include

time spent in a voluntary inpatient alcohol treatment facility, at home on

electronic    monitoring,    or   in   a   halfway    house.    See      Lee,   supra;

Commonwealth v. Maxwell, 932 A.2d 941 (Pa.Super. 2007). The reasoning

underlying our appellate decisions is that, where the nature of the time served

satisfies the later imposed adult prison sentence, the defendant should receive

credit against that prison sentence; however, where the time served does not

satisfy the later imposed adult prison sentence, the defendant should not

receive such credit. See id.

      In the case sub judice, the time for which Appellant requests credit

constitutes the time he spent in a juvenile facility in relation to the

Commonwealth’s filing of delinquency petitions under the Juvenile Act and

prior to his waiver of his charges to adult court. As the learned trial court


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aptly notes in its opinion, our Legislature treats the detention of children under

the Juvenile Act differently from confinement of adults in prison.

      In In re J.M., 42 A.3d 348 (Pa.Super. 2012), we recognized this

distinction, thus holding that delinquent juveniles may not be detained in a

facility used primarily for the detention of adults serving criminal sentences as

the latter does not fulfill the “Legislature’s clear intent to protect the

community while rehabilitating and reforming juvenile[s].” Id. at 351. The

logical corollary of our holding in In re J.M. is that juveniles held in juvenile

detention facilities are not entitled, as of right, to credit for time served against

their adult prison sentences.

      Having so concluded, however, our case law indicates that, even where

a defendant is not entitled to credit as of right under Section 9760, the

approval of such credit is within the sound discretion of the trial court.

Commonwealth v. Toland, 995 A.2d 1242 (Pa.Super. 2010) (holding trial

court may exercise its discretion in determining whether to grant a defendant

credit towards his sentence of imprisonment for time voluntarily spent in

institutionalized rehabilitation facility).

      Here, Appellant sought credit on the basis that he had “waived both

[cases] into adult court” and “accept[ed] responsibility for the[ ] charges.”

N.T., 6/26/17, at 7. In denying credit, the trial court noted that Appellant’s

statements that he had accepted responsibility were belied by his actions in

that, soon after he was detained at the juvenile facility, he participated in an


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attack upon staff members. Trial Court Opinion, filed 8/24/17 at 5. As the

trial court stated, “This behavior does not sound like an individual who accepts

the responsibility for their charges.” Id.

      Further, the trial court indicated that it was denying credit because, in

accepting     the   negotiated   plea   agreement,     the   trial   court   took    into

consideration the time Appellant spent in the juvenile facility prior to

sentencing.     Id. at 7. That is, the trial court indicated that it believed

“Appellant was given the deal of a lifetime-three (3) charges [were] dropped

and   approximately      twenty-three    (23)   to    twenty-five     (25)   years     of

incarceration [was] shaved off the total maximum penalty for the two (2)

charges in which he was sentenced.”           Id.    The trial court noted that the

“sentence as it currently stands allows the Commonwealth Department of

Corrections and the Parole Board to address Appellant’s rehabilitative needs.”

Id.

      Accordingly, the trial court indicated that if it was required to give credit

for the time Appellant spent in the juvenile facility it would not have accepted

the negotiated plea agreement as the resulting “sentence would not have

allowed enough time to meet the rehabilitative needs of Appellant.” Id. There

is no abuse of discretion in this regard. See Toland, supra.

      Appellant received “the deal of a lifetime,” according to the learned trial

court. The Majority decision, respectfully, seals that deal.




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      I would find that Appellant is not entitled to credit for the time he served

in a juvenile facility in the case sub judice. Accordingly, as I would affirm

Appellant’s judgment of sentence, I respectfully dissent.




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