COMMONWEALTH OF PENNSYLVANIA v. OAKLEY ZEDDY MULKIN
No. 740 WDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED FEBRUARY 10, 2020
2020 PA Super 30
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.* OPINION BY LAZARUS, J.:
J-S68026-19. Appeal from the Judgment of Sentence Entered April 10, 2019. In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000142-2018.
Mulkin‘s claim represents a challenge to the discretionary aspects of his sentence. Commonwealth v. Prestidge, 539 A.2d 439, 441 (Pa. Super. 1988). An appeal raising the discretionary aspects of sentencing is not guaranteed as of right; rather, it is considered a petition for permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-87 (Pa. Super. 1989) (еn banc). In order to reach the merits of a discretionary aspects claim, we must engage in a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, seePa.R.Crim.P. [720] ; (3) whether appellant‘s brief has a fatal defect,Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
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Accordingly, Mulkin advised Whitesell upon delivering the drugs not to inject them intravenously “because [he] was told that it was a potent batch of heroin.” Id. at 124.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sеntencing judge‘s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations and quotations omitted).
Here, Mulkin filed a post-sentence motion to modify his sentence, a timely notice of appeal, and included in his brief a concise statement of reasons relied upon for appeal pursuant to
We, therefore, address Mulkin‘s claim, whiсh raises two arguments: first, that the court erred by relying on an impermissible factor, and second, that the court erred by ignoring mitigating evidence.9
Mulkin‘s first argument is waived, as he fails to reference any legal authority for the proposition that the sentencing court abused its discretion by impermissibly relying on his drug-related prison infraction while incarcerated on unrelated drug possession charges as а reason to aggravate his sentence. Brief of Appellant, at 13; see
We have repeatedly held that where a sentencing court has the benefit of a PSI, the court is presumed to have weighed all relevant information regarding the defendant‘s character against any mitigating factors.
It is well-settled that where “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable, the sentence will be upheld.” Commonwealth v. Smith, 863 A.2d 1172, 1177-78 (Pa. Super. 2004). See Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (noting difficulty of defining inquiry into reasonableness of sentence). Based on the record, we cannot conclude that Mulkin‘s sentence is manifestly unreasonable. The sentencing court proffered sufficient reasons indicating why it decided to sentence Mulkin in the aggravated range on the involuntary manslaughter count.
We, however, sua sponte examine the legality of Mulkin‘s sentence with respect to the сourt‘s decision to determine the amount and method of payment of restitution at a later date. See Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa. Super. 2018) (court‘s authority to impose restitution implicates legality of sentence); Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (this Court may consider legality of sentence sua sponte). A challenge to the legality of sentence raises a question of law. Commonwealth v. Smith, 956 A.2d 1029, 1033 (Pa. Super. 2008) (en
At Mulkin‘s sentencing heаring, the court ordered Mulkin to “pay the costs of court [sic] as determined in a separate hearing.” N.T. Sentencing, 4/10/19, at 39. In a supplemental Rule 1925(a) opinion, the sentencing judge noted:
Right before sentencing, the Commonwealth filed for a large amount of costs and restitution and furnished a large packet of documents relating to those claims. Much of the amount claimed related to expert witness costs and fees. The [c]ourt erroneously, and without objection from either party, decided to set a separate restitution hearing10 due to the complexity and amount of restitution claimed and inability of the defense to then evaluate and contest the amounts claimed. In view of [Commonwealth] v. Gentry, 101 A.3d 813 (Pa. Super. 2014)[,] and [Commonwealth] v. Mariani, 869 A.2d 484 (Pa. Super. 2005)[,] this was error at least [as] to the restitution claims of the victims. A restitution hearing was originally scheduled for May 14[, 2019], but was continued to June 11, at the request of the Commonwealth. Upon realizing its error, it was the intention of this court to vacate the original sentence and deal with the restitution claims before entering an appropriate final sentencing order. In the meantime, the defense appealed thе original sentence on other grounds on May 11, 2019, such that this court could no longer correct the situation.
Supplemental 1925(a) Opinion, 9/11/19, at 1.
As the above-referenced statement indicates, the court conflated restitution, fines, and costs of prosecution, delayed a hearing resolving each
In brief, the Crimes Code provides for restitution as a direct sentence, while portions of the Sentencing Code allow it as a condition of probation or intermediate punishment. Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007);
Section 1106 of the Crimes Code governs the imposition of restitution as a direct sentence, providing, in relevant part, as fоllows:
(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:
(i) Shall consider the extent of the injury suffered by the victim, the victim‘s request for restitution as presented to the district attorney in accordancе with paragraph (4) and such other matters as it deems appropriate.
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(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of rеstitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.
Section 9721(a) of the Sentencing Code sets forth a trial court‘s sentencing alternatives; a fine is one of those alternatives. See
Instantly, the Commonwealth provided a preliminary assessment of costs and restitution at sentencing, explaining: “just as a starting point it appears that as far as the costs of prosecution it is $21,288.19 and then there
Here, “the court‘s order at the initial sentencing, postponing the imposition of restitution until a later date, [fails] to meet the criteria of the restitution statute and taints the entire sentence.” Commonwealth v. Muhammed, 219 A.3d 1207, 1215 (Pa. Super. 2019) (quoting Ramos, supra at 770). Accordingly, the sentencing order is illеgal, the entire sentence must be vacated, and this matter must be remanded for resentencing. See Ramos, supra at 770-71; Muhammed, supra at 1213.
During resentencing, the trial court shall determine what, if any, restitution is owed pursuant to section 1106. Muhammed, supra at 1213;
Judgment of sentence vаcated. Case remanded for resentencing consistent with the dictates of this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2020