J-A07044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

            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.

MEMORANDUM BY OLSON, J.:                               FILED JUNE 22, 2018

      Appellant, Jose Figueroa, Jr., appeals from the judgment of sentence

entered on June 23, 2017. We conclude that Appellant’s sentence was illegal

because he did not receive credit for time served in juvenile detention. Hence,

we modify Appellant’s judgment of sentence to reflect that he receive credit

for time spent in juvenile detention.

      The factual background of this case is as follows.     On April 5, 2017,

Appellant was loitering near a playground.       A police officer noticed that

Appellant, then 17 years old, had a firearm tucked into his waistband.       A

second officer stopped Appellant and recovered the firearm. At the conclusion

of a detention hearing, the issuing authority ordered Appellant confined in a

juvenile detention facility.    Four days later, Appellant participated in the

vicious attack of three staff members at the juvenile detention facility.
____________________________________
* Former Justice specially assigned to the Superior Court.
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        The procedural history of this case is as follows. On April 11, 2017, the

Commonwealth filed two separate delinquency petitions in relation to the

firearm possession and the detention facility assault.        On June 23, 2017,

pursuant to a plea agreement, Appellant consented to the transfer of the cases

to the adult criminal division of the Court of Common Pleas of Dauphin County,

pled guilty to possession of a firearm without a license 1 and aggravated

assault,2 and was sentenced to an aggregate term of two to four years’

imprisonment. This timely appeal followed.3

        Appellant presents one issue for our review:

        Did the trial court abuse its discretion when it denied Appellant’s
        request for time credit while detained at a juvenile detention
        facility be applied to his sentence?

Appellant’s Brief at 3.

        In his sole issue, Appellant argues that he was entitled to credit for time

spent in juvenile detention. Although Appellant frames this as a challenge to

the discretionary aspects of his sentence, “a claim based upon the failure to

give credit for time served is a challenge implicating the legality of one’s

sentence.” Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017)

(cleaned up). “We review the legality of a sentence de novo and our scope of


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1   18 Pa.C.S.A. § 6106(a)(1).

2   18 Pa.C.S.A. § 2702(a)(2).

3Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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review is plenary.” Commonwealth v. Foust, 180 A.3d 416, 422 (Pa. Super.

2018) (citation omitted).

      Section 9760(1) governs credit for time served. It provides that:

      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). Pursuant to the Statutory Construction Act, when

the plain language of a statute is clear and free of all ambiguity, we must give

effect to that language.      1 Pa.C.S.A. § 1921(b); Commonwealth v.

Sattazahn, 128 A.3d 291, 295 (Pa. Super. 2015).

      First, it is immaterial that most of Appellant’s confinement occurred

while awaiting disposition of the delinquency petitions.       Section 9760(1)

provides that a defendant is entitled to 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.” 42 Pa.C.S.A.

§ 9760(1) (emphasis added). This highlighted clause makes clear that the

underlying conduct plays a significant role in determining if an individual is

entitled to credit for time served. In this case, Appellant’s confinement in the

juvenile detention center resulted from his possession of a firearm near the

playground and the assault on the facility staff. He ultimately pled guilty to

possessing a firearm without a license and aggravated assault stemming from

these incidents. It is abundantly clear that the conduct on which the charges

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were based resulted in Appellant’s confinement in the juvenile detention

facility. Hence, the transfer of the charges from the juvenile division to the

criminal division of the Court of Common Pleas of Dauphin County is

immaterial when determining if Appellant is entitled to credit for the time

spent in the juvenile detention center.

      Appellant’s confinement in the juvenile detention facility also meets the

custodial requirement found in section 9760(1).       Again, we turn to the

Statutory Construction Act to determine the meaning of “in custody.” “Words

and phrases shall be construed according to rules of grammar and according

to their common and approved usage[.]” 1 Pa.C.S.A. § 1903; see Estate of

Wilner, 142 A.3d 796, 802 (Pa. 2016) (citation omitted) (words and phrases

in a statute are given their ordinary meaning).

      The ordinary meaning of “in custody” includes confinement in a juvenile

detention facility. See, e.g. Commonwealth v. Heggins, 809 A.2d 908, 914

(Pa. Super. 2002), appeal denied, 827 A.2d 430 (Pa. 2003) (Commonwealth

conceding that a juvenile was in custody when confined in a juvenile detention

facility); Commonwealth v. Hubert, 430 A.2d 1160, 1161 (Pa. 1981)

(emphasis added) (The defendant “was a [16-year-old] . . . being held in

custody at a juvenile detention center.”); see generally National

Partnership for Juvenile Services, Desktop Guide to Quality Practice for

Working with Youth in Confinement, Feb. 11, 2015 (discussing how individuals

in juvenile detention centers are in custody). Hence, the phrase “in custody”


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in section 9760(1) is “free from all ambiguity” and includes time spent in

juvenile detention. 1 Pa.C.S.A. § 1921. Because our inquiry ends with the

plain language of the statute, Appellant is entitled to credit for time spent in

juvenile detention as a result of the conduct for which he ultimately pled guilty.

      Case law supports this interpretation of section 9760(1). This Court has

held that our General Assembly intentionally used the term “in custody” rather

than “imprisonment” and, therefore, “custody includes forms of restraint other

than imprisonment.” Commonwealth v. Druce, 868 A.2d 1232, 1236 (Pa.

Super. 2005) (cleaned up). Case law has drawn a distinction between time

voluntarily spent at an institution versus time involuntarily spent at an

institution. Commonwealth v. Toland, 995 A.2d 1242, 1250 (Pa. Super.

2010), appeal denied, 29 A.3d 797 (Pa. 2011) (“[W]hether a defendant is

entitled to credit for time spent in an [institution] turns on the question of

voluntariness.”). Our Supreme Court has held that defendants are not entitled

to credit for time voluntarily spent in an institution. E.g. Commonwealth v.

Conahan, 589 A.2d 1107, 1110 (Pa. 1991). On the other hand, this Court

has held that defendants are entitled to credit for time involuntarily spent in

an institution. E.g. Commonwealth v. Tout–Puissant, 823 A.2d 186, 190

(Pa. Super. 2003).     Hence, as this Court explained in Toland, we must

examine whether Appellant’s confinement was voluntary.

      There is nothing in our jurisprudence that supports drawing a line

between time spent in institutions for rehabilitative purposes versus time


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spent in institutions for other purposes.4 To the contrary, Conahan suggests

strongly that this is irrelevant when determining if an individual was “in

custody” for the purpose of section 9760(1).            Conahan addressed the

discretionary awarding of credit for time spent in a substance abuse treatment

facility.   Although time spent in a substance abuse facility is ipso facto

rehabilitative, our Supreme Court in Conahan explained that the discretionary

nature of the credit was based on the voluntariness of the treatment, not on

the purpose for the treatment. Conahan, 589 A.2d at 1110.

       Moreover, both juvenile detention centers and adult prisons address the

rehabilitative needs of inmates.         The Sentencing Code mandates that trial

courts consider the rehabilitative needs of a defendant when imposing a

sentence. 42 Pa.C.S.A. § 9721(b). The Supreme Court of the United States

and our Supreme Court have similarly acknowledged that rehabilitation of

inmates is a critical component of adult prisons. Pell v. Procunier, 417 U.S.

817, 822-823 (1974); Brittain v. Beard, 974 A.2d 479, 488 (Pa. 2009).

Thus, there is only a minor rehabilitative distinction between juvenile

detention centers and adult prisons and we must focus on the voluntariness

of the confinement.          In this case, the trial court ordered Appellant’s

confinement in the juvenile detention facility.           Therefore, Appellant’s


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4 Although section 9760(1) conditions credit on custodial detention arising
from conduct on which a charge is based, the provision nowhere employs the
term “rehabilitative.” Likewise, our case law does not consider the term as a
determinative factor in awarding credit for time served.

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confinement was involuntary and he is entitled to credit under existing case

law.

       In sum, the plain language of section 9760(1) indicates that Appellant

is entitled to credit for time spent in juvenile detention for the conduct to

which he ultimately pled guilty. Moreover, case law indicates that Appellant

is entitled to such credit for time involuntarily spent confined in the juvenile

detention facility.5    As Appellant does not challenge his convictions or the

discretionary aspects of his sentence, we modify Appellant’s judgment of

sentence to indicate that he receive credit for time spent in the juvenile

detention facility. See 42 Pa.C.S.A. § 706.

       Judgment of sentence modified. Jurisdiction relinquished.

       Judge Panella concurs in the result of the memorandum.

       P.J.E. Stevens files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/22/2018




____________________________________________


5 As we conclude Appellant is statutorily entitled to credit for the time served
in the juvenile detention center, we do not address his alternative
discretionary claim.

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