228 A.3d 913
Pa. Super. Ct.2020Background
- In May 2016 Mulkin sold furanylfentanyl (a fentanyl derivative) to Jordan Whitesell; Whitesell overdosed and later died.
- Mulkin was convicted after a three-day jury trial of delivery of a designer drug, delivery of a non-controlled substance, criminal use of a communication facility, and involuntary manslaughter.
- At sentencing the trial court imposed an aggravated-range term (18–36 months) for involuntary manslaughter and standard-range terms on other counts, citing Mulkin’s knowledge that the batch had caused recent overdoses and a prior in-prison drug infraction.
- Mulkin filed post-sentence motions and appealed, arguing the court relied on an impermissible factor (the prison infraction) and ignored mitigating evidence.
- The Superior Court found the challenge to reliance on the prison infraction waived for lack of developed authority, rejected the claim that mitigating evidence was ignored (PSI presumed considered), but identified a separate legality defect: the court postponed determination of restitution/fines/costs to a later hearing.
- Because restitution cannot be left for later determination, the Superior Court held the sentencing order illegal, vacated the sentence, and remanded for resentencing with restitution and fines fixed at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court abused discretion by relying on impermissible factors and ignoring mitigation when imposing aggravated-range sentence | Court properly weighed factors (knowledge of dangerous batch, prior misconduct) and had PSI; sentence reasonable | Mulkin argued court relied on impermissible factor (prison drug infraction) and failed to consider mitigating evidence | Reliance claim waived for lack of authority; mitigation claim rejected—court considered PSI and mitigation; aggravated sentence not manifestly unreasonable |
| Whether postponing determination of restitution/fines/costs renders sentence illegal | Commonwealth provided preliminary costs/restitution figures and sought separate hearing | Mulkin contended restitution/fines must be fixed at sentencing | Superior Court held postponing restitution/fines unlawful; restitution-to-be-determined-later taints sentence; vacated sentence and remanded for resentencing with restitution/fines determined at sentencing |
Key Cases Cited
- Commonwealth v. Ramos, 197 A.3d 766 (Pa. Super. 2018) (postponing restitution determination at sentencing is improper and can taint sentence)
- Commonwealth v. Muhammed, 219 A.3d 1207 (Pa. Super. 2019) (order deferring restitution invalid; vacatur required)
- Commonwealth v. Mariani, 869 A.2d 484 (Pa. Super. 2005) (an order of restitution to be determined later is ipso facto illegal)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (when court reviews a PSI it is presumed to have considered relevant mitigating and aggravating information)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (appellate deference to sentencing court and treatment of reasonableness inquiry)
- Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (what constitutes a substantial question for discretionary sentencing review)
- Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (issues not developed with legal authority are waived on appeal)
- Commonwealth v. Smith, 863 A.2d 1172 (Pa. Super. 2004) (sentencing court must proffer adequate reasons to justify departure from guidelines)
- Commonwealth v. Roden, 730 A.2d 995 (Pa. Super. 1999) (reliance on impermissible sentencing factor raises a substantial question)