J-S68026-19

                                   2020 PA Super 30



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OAKLEY ZEDDY MULKIN                        :
                                               :
                       Appellant               :   No. 740 WDA 2019

          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


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

OPINION BY LAZARUS, J.:                             FILED FEBRUARY 10, 2020

        Oakley Zeddy Mulkin appeals from the judgment of sentence, entered

in the Court of Common Pleas of Potter County, following his conviction for

delivery of a designer drug,1 delivery of a non-controlled substance,2 criminal

use of a communication facility,3 and involuntary manslaughter.4 After careful

review, we vacate the judgment of sentence and remand for resentencing.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(36).

2   35 P.S. § 780-113(a)(35).

3   18 Pa.C.S.A. § 7512(a).

4   18 Pa.C.S.A. § 2504(a).
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       On May 11, 2016, Mulkin sold furanylfentanyl5 to a friend, Jordan

Whitesell, who overdosed on the drug hours later. Following a three-day jury

trial, Mulkin was found guilty of the above-mentioned crimes on April 3, 2019.

On April 10, 2019, after considering a pre-sentence investigation (PSI) report,

the trial court sentenced Mulkin to 18-36 months’ imprisonment for

involuntary manslaughter, an aggravated-range sentence,6 and imposed

standard-range sentences of 9-18 months’ imprisonment for delivery of a

designer drug7 and 9-18 months’ imprisonment for criminal use of a

communication facility.         The trial court stated on the record that an

aggravated-range sentence on the involuntary manslaughter count was

justified because Mulkin delivered drugs he knew to have recently caused

others to overdose,8 and because Mulkin had previously been caught with

controlled substances while incarcerated for drug possession.
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5Furanylfentanyl is a derivative of the synthetic opioid, Fentanyl. N.T. Trial,
6/20/19, at 200-23. Fentanyl is 80 to 100 times more potent than morphine,
and furanylfentanyl is slightly less potent than Fentanyl. Id.

6 With an offense gravity score (OGS) of 6 for involuntary manslaughter and
Mulkin’s prior record score (PRS) of 0, the standard-range minimum sentence
at that count was 3-12 months’ imprisonment, and the aggravated range
minimum was 18 months’ imprisonment. See 204 Pa.Code § 303.16(a).

7 For sentencing purposes, Mulkin’s conviction for delivery of a controlled
substance merged delivery of a designer drug.

8 In May of 2016, Mulkin purchased several baggies of furanylfentanyl, which
he thought contained heroin, for himself and Whitesell. N.T. Trial, 4/1/19 at
121-22. At the time of purchase, Mulkin was told that other drug users had
recently overdosed after ingesting that particular batch of drugs. Id. at 121.



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       On April 18, 2019, Mulkin filed a timely motion to modify sentence which

the trial court denied on May 2, 2019. On May 11, 2019, Mulkin filed a timely

notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. He presents the following issue

for our consideration: “Did the [s]entencing [c]ourt abuse [its] discretion by

relying on inappropriate factors and by ignoring mitigating evidence when it

aggravated [Mulkin’s] sentence beyond the standard range?” Brief for

Appellant, at 5.

       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) (en 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 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see Pa.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.

                                          ***

____________________________________________


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.

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       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 sentencing 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 Rule 2119(f). Additionally, Mulkin

raises a substantial question by asserting the sentencing court relied on an

impermissible factor and ignored mitigating evidence when imposing an

aggravated-range        sentence       for     involuntary   manslaughter.   See

Commonwealth v. Roden, 730 A.2d 995 (Pa. Super. 1999) (sentencing

court relying on impermissible factor raises substantial question); see also

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003)

(imposition of aggravated-range sentence without considering mitigating

factors raises substantial question).

       We, therefore, address Mulkin’s claim, which 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

____________________________________________


9  Mulkin contends that the court failed to consider, inter alia, (1) positive
character references from his mother, former employer, and lifelong family
friend; (2) that he graduated from high school; (3) his strong work ethic; (4)
his sincere remorse; and (5) that his criminal history is limited to non-violent
drug offenses. See Brief of Appellant, at 14-17.

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      We note that when imposing sentence, the trial court is granted broad

discretion, as it is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2017). We are

also cognizant of the fact that the trial court considered a PSI before imposing

Mulkin’s sentence. Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.

Super. 2009) (sentencing court informed by PSI presumed aware of relevant

factors).

      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 a reason to aggravate his sentence.

Brief of Appellant, at 13; see Pa.R.A.P. 2119(b) (party must direct court’s

attention to specific authority relied upon); Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any meaningful fashion capable of review, that claim is waived.”).

We, therefore, consider only the portion of Mulkin’s claim relating to the

sentencing court’s alleged failure to “consider the mitigating evidence

presented at the sentencing hearing.” Brief of Appellant, at 12.

      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.

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Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). As the

sentencing judge considered a PSI before imposing sentence, Mulkin’s

argument that the court ignored mitigating evidence is without merit.

Moreover, this argument is belied by the record, as the sentencing judge noted

after hearing all of the mitigating evidence that Mulkin had been a “good young

m[a]n” before his involvement with drugs. N.T. Sentencing, 4/10/19, at 35.

      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 court’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

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banc). Our standard of review, therefore, is de novo and the scope of our

review is plenary. Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super.

2013).

       At Mulkin’s sentencing hearing, 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 hearing[10] 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 the 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


____________________________________________


10On April 17, 2019, the court ordered a hearing on “restitution, fines and
costs” to be held on May 14, 2019. Trial Court Order, 4/17/19, at 1.

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of these penalties until after sentencing, and was divested of jurisdiction

before reaching a resolution. Id.; see also Commonwealth v. Klein, 781

A.2d 1133, 1135 (Pa. 2001) (except in limited circumstances, filing notice of

appeal divests trial court of jurisdiction). We appreciate the court bringing

this to our attention. We will, first, delineate among restitution, costs, and

fines, and second, clarify the requirement that restitution be determined at

sentencing.

      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. Commononwealth v. Harriott, 919 A.2d 234,

238 (Pa. Super. 2007); 42 Pa.C.S. § 9754(c)(8) (authorizing restitution as a

condition of probation); 42 Pa.C.S. § 9763(b)(10) (authorizing restitution as

a   condition   attached   to   intermediate   punishment); 204   Pa.Code     §

303.14(c)(2) (restitution may be imposed as a direct sentence or as a

condition of probation or intermediate punishment).          Fines are also a

component of a defendant’s sentence; costs, on the other hand, are always

incidental to judgment.    See 42 Pa.C.S. § 9721 (sentencing alternatives

include fines); Commonwealth v. Soudani, 165 A.2d 709, 711 (Pa. Super.

1960) (direction to pay costs in criminal proceeding not part of sentence).

      Section 1106 of the Crimes Code governs the imposition of restitution

as a direct sentence, providing, in relevant part, as follows:

      (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:

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            (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 accordance with
            paragraph (4) and such other matters as it deems
            appropriate.
                                     ***

      (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 restitution to
      be ordered.        This recommendation shall be based upon
      information solicited by the district attorney and received from the
      victim.

18 Pa.C.S. § 1106(c) (emphasis added). We note that under Pennsylvania

law, “an order of restitution to be determined later is ipso facto illegal.”

Mariani, supra at 487.

      Section 9721(a) of the Sentencing Code sets forth a trial court’s

sentencing alternatives; a fine is one of those alternatives. See 42 Pa.C.S. §

9721(a)(5). Fines may either be imposed as a defendant’s sole sentence or

as an additional sentence when the defendant has derived a pecuniary gain

from the crime or the court opines that a fine is “specially adapted to

deterrence of the crime involved or to the correction of the defendant.” 42

Pa.C.S. § 9726(a), (b)(1)-(2). A court shall not sentence a defendant to pay

a fine unless the record demonstrates that: “(1) the defendant is or will be

able to pay fine; and (2) the fine will not prevent the defendant from making

restitution” to the victim. 42 Pa.C.S. § 9726(c).




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        In addition to the sentencing alternatives under section 9721(a), the

Sentencing Code provides for mandatory restitution to the victim11 and

mandatory payment of costs.12 Unlike restitution imposed under 42 Pa.C.S.

§§ 1106, 9721(c), and unlike fines, which are both part of a defendant’s

sentence, 42 Pa.C.S. § 9726(a), (b)(1)-(2), “a direction to pay costs in a

criminal proceeding is not part of the sentence, but is an incident of the

judgment. Costs do not form a part of the penalty imposed by the statutes

providing for the punishment of criminal offenses[.]” Soudani, supra at 711.

Furthermore, a court order is not required for a defendant to incur liability for

costs under section 9721. See 42 Pa.C.S. § 9721(c.1). “In the event the

court fails to issue an order for costs pursuant to section 9728, costs shall be

imposed upon the defendant under this section.” Id. If, however, the trial

court determines, after a hearing, that the defendant is unable to pay costs

immediately, the trial court has authority under Pa.R.Crim.P. 706 to determine

the amount and method of payment. Pa.R.Crim.P. 706(a)-(c). The trial court

may also provide that a defendant shall not be liable for costs under Rule 706.

Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013).

        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
____________________________________________


11   42 Pa.C.S. § 9721(c).

12   42 Pa.C.S. § 9721(c.1).


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is restitution of $3,125 for funeral costs and there is also some outstanding

counseling fees to [Whitesell’s wife] that we don’t have final bills on at this

point.” N.T. Sentencing, 4/10/19, at 2. On April 17, 2019, the court ordered

a hearing on “restitution, fines and costs” to be held at a later date.

      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 illegal, 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;

18 Pa.C.S. 1106(c)(3).      If any fines are owed, they must be imposed at

sentencing as well.

      Judgment of sentence vacated.            Case remanded for resentencing

consistent with the dictates of this Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2020

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