If a client checks himself into inpatient treatment while his criminal case is pending, does that time count against his sentence? I get this question regularly — from clients, from their families, and from other lawyers. The intuition behind the question is understandable: the defendant wasn’t in jail, nobody forced him to go, and he could have walked out the door. How can that be “time served”?
In Commonwealth v. Morgan, 2026 PA Super 153 (July 16, 2026), the Superior Court answered the question again, and the answer is yes: time spent in voluntary inpatient treatment can be credited against a sentence, and the decision belongs to the sentencing court. The Commonwealth appealed a McKean County sentencing order granting that credit, and the Superior Court affirmed, relying on precedent that has been on the books for more than thirty years.
The Rule: Credit for “Time Spent in Custody”
Start with the statute. Pennsylvania’s Sentencing Code requires that a defendant receive credit against both the minimum and maximum terms of his sentence “for all time spent in custody” as a result of the criminal charge. That’s Section 9760(1) of the Judicial Code, 42 Pa.C.S.A. § 9760(1). The easy case is obvious: a defendant held in the county jail awaiting trial gets credit for every one of those days.
The harder question is what “custody” means, because neither Section 9760 nor any other provision of the Sentencing Code defines the term. Pennsylvania courts filled that gap decades ago. As the Supreme Court put it in Commonwealth v. Kyle, 874 A.2d 12 (Pa. 2005), courts have interpreted “custody” to mean time spent in an institutional setting “such as, at a minimum, an inpatient alcohol treatment facility.” A locked cell is not the test. Institutional confinement is.
But what about voluntariness? That question was settled in 1991, in two decisions that still control. In Commonwealth v. Conahan, 589 A.2d 1107 (Pa. 1991), the Supreme Court held that a defendant who voluntarily commits himself to inpatient treatment is not barred from receiving credit for that time — the credit may be awarded, and the decision rests in the sound discretion of the sentencing court. And in Commonwealth v. Cozzone, 593 A.2d 860 (Pa. Super. 1991), the Superior Court held that time spent in a treatment facility as a condition of bail was time spent in custody under Section 9760. The Superior Court has applied this framework ever since — in Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007), and Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), among others.
So the framework looks like this: jail time earns mandatory credit; time in voluntary inpatient treatment is creditable at the sentencing court’s discretion. The distinction is between entitlement and eligibility.
What Happened in Morgan
The long and short of the facts were this. James Morgan was charged in McKean County in 2023 and had monetary bail set on his cases. In September 2023, he moved to modify bail so that he could attend a long-term rehabilitation facility, and he proposed a condition: he would return to the McKean County Jail after inpatient treatment “regardless of completion status.” The District Attorney’s office didn’t oppose the motion, the court granted it, and Morgan was admitted to the Dickinson Restoration Center in Brookville in October 2023.
He stayed roughly ten months. When he needed to leave the grounds for a medical appointment, he had to get a court order and a Dickinson staff member was stationed directly outside the hospital room the entire time. By the summer of 2024, Morgan had made enough progress that the court, again without Commonwealth opposition, modified bail to let him return home rather than to the jail.
In June 2025, Morgan pleaded guilty under a plea agreement. On the credit question, the agreement said this: the defense could ask the court to consider the time Morgan spent inpatient; the Commonwealth “does not agree with credit for that but agrees the court is best to decide that”; and neither the request nor the award of credit would violate the plea. At sentencing, the trial court imposed 21 months and 10 days to 126 months of incarceration and awarded Morgan credit for his time at Dickinson.
The Commonwealth appealed.
The Commonwealth’s Waiver Problem
The Commonwealth’s argument on appeal was that Morgan’s treatment was voluntary, and voluntary treatment doesn’t earn credit. The Superior Court never needed to reach that argument, because the Commonwealth had bargained it away. The plea agreement expressly left the credit question to the trial court — the Commonwealth agreed the trial court was “best to decide” it. Having relinquished the issue to the sentencing court’s discretion, the Commonwealth could not turn around and litigate it on appeal. The panel found the claim waived, noting there was no argument that the trial court had misapplied or misinterpreted the plea agreement itself.
Plea agreements are contracts, and both sides are held to their terms. Morgan applies it against the Commonwealth.
What Morgan Means in Practice
For defense lawyers, Morgan confirms a strategy worth using: moving to modify bail so a client can enter long-term inpatient treatment serves the client twice — it addresses the addiction driving the case, and the time is creditable against the eventual sentence. But because the credit is discretionary rather than automatic, build the record. Morgan’s proposed condition that he return to jail after treatment regardless of completion, and the supervision that followed him even to a hospital appointment, made his time look like what it was: institutional confinement. Get the restrictive conditions into the bail order, and get the Commonwealth’s position on credit into the plea agreement in writing.
For clients and families, the takeaway is simpler. Entering treatment while a case is pending is not wasted time. Pennsylvania law has recognized for more than three decades that inpatient treatment is a form of custody, and a sentencing court has the power to credit it. Whether the court does so is within its discretion — which is one more reason the decision to seek treatment, and how it’s structured, should be made with counsel who knows how to present it.