J-S44009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES DONALD BASTIAN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 650 MDA 2020

Appeal from the Judgment of Sentence Entered January 7, 2020

In the Court of Common Pleas of Sullivan County Criminal Division at 

No(s): CP-57-CR-0000039-2019

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 23, 2020

Appellant, James Donald Bastian, appeals from the judgment of 

sentence of an aggregate term of 16 to 60 months’ incarceration, imposed 

after he pled guilty to one count of theft by unlawful taking. Appellant solely 

challenges the court’s refusal to award him credit for time served between 

March 12, 2019 and January 7, 2020. After careful review, we affirm.

Briefly, on March 12, 2019, Appellant was arraigned in the present case 

on charges of theft and related offenses, stemming from the April 24, 2018 

theft of a Polaris Ranger All Terrain Vehicle in Sullivan County (hereinafter, 

“Sullivan County case”). Appellant was unable to post bail and, therefore, he 

remained incarcerated on those theft charges. At the same time, Appellant 

was also incarcerated on charges filed in several other counties, including drug 

and firearm charges that had been filed in Lycoming County, for which he had 
J-S44009-20

- 2 -

been arrested on or about July 16, 2018 (hereinafter, “Lycoming County 

case”). 

Appellant ultimately pled guilty in the Sullivan County case to one count 

of theft by unlawful taking. On January 7, 2020, the court conducted 

Appellant’s sentencing hearing. There, defense counsel argued that Appellant 

was entitled to credit for time-served from March 12, 2019, until the date of 

the sentencing hearing. The court denied that request, and sentenced 

Appellant as set forth supra. Appellant filed a timely post-sentence motion 

for reconsideration, which the court denied on January 13, 2020. He then 

filed a timely notice of appeal, and he complied with the trial court’s order to 

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.1 

Herein, Appellant states one issue for our review:

Whether the [t]rial [c]ourt erred when it failed to give credit for 

time served to ... Appellant when bail was set in the instant matter, 

not posted, and ... Appellant was not serving any other sentences 

at the time of his sentencing?

Appellant’s Brief at 5.

Preliminarily, we note that, “[a] challenge to the trial court’s failure to 

award credit for time spent in custody prior to sentencing involves the legality 

of sentence....” Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 

____________________________________________

1 We note that Appellant incorrectly stated in his notice of appeal that he is 

appealing from the order denying his post-sentence motion for 

reconsideration. “In a criminal action, [an] appeal properly lies from the 

judgment of sentence made final by the denial of post-sentence motions.” 

Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) 

(en banc) (citation omitted). We have corrected the caption accordingly.
J-S44009-20

- 3 -

2007). Pertinent to the issue Appellant raises herein, the Sentencing Code 

states:

(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.

***

(4) If the defendant is arrested on one charge and later 

prosecuted on another charge growing out of an act or acts that 

occurred prior to his arrest, credit against the maximum term and 

any minimum term of any sentence resulting from such 

prosecution shall be given for all time spent in custody under the 

former charge that has not been credited against another 

sentence.

42 Pa.C.S. § 9760.

In this case, Appellant avers that he was entitled to credit for the time 

he served from his arraignment on March 12, 2019, through his sentencing 

hearing on January 7, 2020. The trial court refused to apply credit for this 

time because, when Appellant’s “charges and case in Sullivan County arose[,]” 

he had already been incarcerated on charges in the Lycoming County case. 

Trial Court Opinion, 4/13/20, at 4. 

Under a plain reading of section 9760(4), we conclude that the court 

erred. Appellant was arrested in the Lycoming County Case on or about July 

16, 2018. He was later prosecuted on his Sullivan County charges that grew 

out of an act that occurred on April 24, 2018 (prior to his arrest in the 

Lycoming County case). Therefore, section 9760(4) directs that the trial court 
J-S44009-20

- 4 -

should have afforded Appellant credit against his Sullivan County sentence 

“for all time spent in custody under the former charge[,]” i.e., the charges in 

the Lycoming County case. Appellant was incarcerated on charges in both 

cases during the time for which he sought credit and, as of his January 7, 

2020 sentencing in the Sullivan County case, that time had not been credited 

against any other sentence. Thus, the court should have afforded Appellant 

the time-credit he sought.

Notwithstanding this error, the illegality of Appellant’s Sullivan County 

sentence was rectified when he was sentenced on February 19, 2020, in the 

Lycoming County case (docketed at CP-41-CR-1156-2018). The 

Commonwealth states (and our search of the public docket confirms) that in 

the Lycoming County case, Appellant received credit for 583 days of time 

served, which covers the time between March 12, 2019 and January 7, 2020. 

Therefore, the time Appellant seeks credit for in this Sullivan County case has 

been applied to his sentence in Lycoming County. He is not entitled to doublecredit for that time served. See Commonwealth v. Merigris, 681 A.2d 194, 

195 (Pa. Super. 1996) (interpreting section 9760(4) “as barring a defendant 

from receiving credit against more than one sentence for the same time 

served”).
J-S44009-20

- 5 -

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/2020