Com. v. Mulkin, O.
2020 Pa. Super. 30
| Pa. Super. Ct. | 2020Background
- In May 2016, Oakley Mulkin purchased and sold furanylfentanyl (a fentanyl derivative) to Jordan Whitesell; Whitesell overdosed and died hours later.
- After a three-day jury trial, Mulkin was convicted of delivery of a designer drug, delivery of a non-controlled substance, criminal use of a communication facility, and involuntary manslaughter.
- At sentencing the court imposed an aggravated-range term of 18–36 months for involuntary manslaughter (standard range minimum would have been 3–12 months) and standard-range terms on related counts.
- The court explained the aggravated sentence by citing Mulkin’s knowledge that the batch had caused recent overdoses and a prior drug-related prison infraction.
- Mulkin filed a post-sentence motion and timely appeal arguing the court relied on an impermissible factor and ignored mitigating evidence; the court had considered a PSI and stated it had heard mitigating evidence.
- The trial court postponed determination of restitution/fines/costs to a later hearing; the Superior Court held that deferring restitution at sentencing rendered the sentence illegal, vacated the judgment of sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court abused its discretion by relying on an impermissible factor and ignoring mitigation when imposing an aggravated-range sentence | Mulkin argued the court relied improperly on a drug-related prison infraction and failed to weigh mitigating evidence (character references, remorse, nonviolent record) | Trial court/Commw. argued it had broad discretion, considered the PSI and mitigation, and provided valid reasons (knowledge of potent batch; prior infraction) for aggravation | Appellate court found the impermissible-factor claim waived for lack of authority; rejected the ignored-mitigation claim because the PSI was considered and the record shows mitigation was weighed; aggravated sentence not manifestly unreasonable |
| Whether postponing determination of restitution/fines/costs until after sentencing is permissible | Mulkin contended (and the court recognized sua sponte) that deferring restitution tainted the sentence and is illegal | Trial court had delayed restitution due to complexity and intended a separate hearing; but appeal divested it of jurisdiction before correction | Court held that deferring restitution violates the restitution statute and precedent; the sentencing order was illegal, so judgment of sentence was vacated and case remanded for resentencing with restitution/fines determined at sentencing |
Key Cases Cited
- Commonwealth v. Ramos, 197 A.3d 766 (Pa. Super. 2018) (postponing restitution at sentencing renders sentence tainted/illegal)
- Commonwealth v. Muhammed, 219 A.3d 1207 (Pa. Super. 2019) (reaffirming that an order to determine restitution later is illegal)
- Commonwealth v. Mariani, 869 A.2d 484 (Pa. Super. 2005) (order of restitution to be determined later is ipso facto illegal)
- Commonwealth v. Gentry, 101 A.3d 813 (Pa. Super. 2014) (procedural requirements for restitution and victim notice)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (deference to trial court’s sentencing discretion and reasonableness inquiry)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (where court reviews a PSI, it is presumed the court considered relevant mitigating information)
- Commonwealth v. Soudani, 165 A.2d 709 (Pa. Super. 1960) (payment of costs is incident to judgment and not part of the sentence)