State v. Pulgini

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Vv. ) ID No. 1712012254
) Cr. A. Nos. IN18-10-0337, etc.
KELLIE A. PULGINI, )
Defendant. )
Submitted: July 1, 2020
Decided: July 23, 2020
ORDER
Upon the State’s Request for a Restitution Order,
GRANTED.
This 23% day of July, 2020, upon consideration of the State of Delaware’s
Request for a Restitution Order, the Commissioner’s Report and Recommendation
that State’s Request should be GRANTED, and the record in this case, it appears to
the Court that:
(1) In January 2019, Kellie A. Pulgini pleaded guilty at her final case
review to one count of Theft of an Amount in Excess of $100,000 (Theft=$100,000),
a class B felony, and to two counts of Theft of an Amount in Excess of $50,000
(Theft=$50,000), both class D felonies.'! She was sentenced several months later, to
serve: (a) for Theft>$100,000—25 years at Level V suspended after serving two
' Plea Agreement and TIS Guilty Plea Form, State v. Kellie A. Pulgini, 1.D. No. 1712012254
(Del. Super. Ct. Jan. 7, 2019) (D.I. 19).
years at Level V for one year of Level III supervised probation; (b) for
Theft>$50,000—eight years at Level V suspended in whole for concurrent Level III
supervised probation; and (c) for Theft=$50,000—two years at Level V suspended
in whole for another term of concurrent Level III supervised probation.” But because
there was disagreement at the sentencing hearing as to whether a restitution order
should be entered as part of this sentence, the Court retained jurisdiction over the
sentence for the parties to brief that issue.
(2) After preliminary review of the parties briefing, that matter was referred
to a Superior Court Commissioner in accordance with 10 Del. C. § 512(b) and
Superior Court Criminal Rule 62 for proposed findings of fact, conclusions of law,
and recommendations for disposition of the restitution claim. More specifically, the
Commissioner was to issue a report and recommendation on the following:
(a) Whether pursuant to 11 Del. C. §§ 841(d) and/or 4106(d) the Court
must enter a restitution order in this case?
(b) Ifnot mandatory, should the Court exercise its sentencing discretion
to enter a restitution order in this case?
(c) If the Court should enter a restitution order, what is the proper
restitution amount under the circumstances of this case? *
2 Sentence Order, State v. Kellie A. Pulgini, 1.D. No. 1712012254 (Del. Super. Ct. Apr. 26,
2019) (D.I. 22).
> Id.
* Order of Reference, State v. Kellie A. Pulgini, I.D. No. 1712012254 (Del. Super. Ct. July 22,
2019) (D.L. 38).
(3) After further briefing and hearings, the Commissioner docketed her
Report and Recommendation on April 30, 2020.° The Commissioner recommended
that the State’s request for a restitution order be granted and, inter alia, that Ms.
Pulgini be ordered to make restitution in the amount of $93,118.72.°
(4) “Within ten days after filing of a Commissioner’s proposed findings of
fact and recommendations . . . any party may serve and file written objections.”’
Neither Ms. Pulgini nor the State filed an “objection” to the Commissioner’s Report
under Criminal Rule 62(a)(5)(ii).®
(5) The Court accepts, in part, the findings of fact and recommendations
made by the Commissioner. ? After a thorough review of the record in this case, the
Court finds that entry of the restitution order in the amount of $93,118.72 payable to
5 DIL. 36.
6 State v. Pulgini, 2020 WL 2121467 (Del. Super. Ct. Apr. 30, 2020).
7 Super. Ct. Crim. R. 62(a)(5)(ii).
8 The Court notes that the suspension of court-rule deadlines ordered by the Chief Justice via
the judicial emergency declaration caused by the COVID-19 pandemic expired on July 1, 2020.
See ADMINISTRATIVE ORDER NO. 7—EXTENSION OF JUDICIAL EMERGENCY, Jn Re COVID-19
Precautionary Measures, at 16 (Del. June 5, 2020) (.. . “deadlines in court rules . . . that expire
between March 23, 2020 and June 30, 2020 are extended through July 1, 2020.”) (available at
https://courts.delaware.gov/rules/pdf/COVID-19AdminOrderNo7.pdf - last visited July 21, 2020).
And so the Court has assured that Rule 62(a)(5)(ii)’s ten-day deadline from July 1, 2020, has now
passed for Ms. Pulgini and the State. See Super. Ct. Crim. R. 45(a) (governing method of
computing any period of time prescribed or allowed by this Court’s criminal rules).
° Super. Ct. Crim. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or in part,
the findings of fact or recommendations made by the Commissioner.”).
-ai_
Wealth Guardians, Inc., is appropriate. And the Court finds that amount and that
payee appropriate based on the assumption that the allocation of payments from the
proceeds of the sale of the home Ms. Pulgini owned with her mother—as
contemplated by the October 2017 Settlement Agreement entered between Ms.
Pulgini, the Flanigans, and Wealth Guardians—will occur in the manner and
amounts recommended by the Commissioner.'° But the Court does not find it can,
via a criminal restitution order, “direct” such allocation be made under the civil
Settlement Agreement. So the Court will reject that specific recommendation made
by the Commissioner.
NOW THEREFORE, after careful and de novo review of the record in this
case, and for the reasons stated in the Commissioner’s Report and Recommendation
of April 30, 2020, the State’s request for a restitution order in this matter is
GRANTED and a modified sentencing order shall issue forthwith.
Lex »
Paul R. Wallace, Judge
IT IS SO ORDERED.
Original to Prothonotary
cc: Hon. Janine M. Salomone
Joseph E. Gibbs-Tabler, Deputy Attorney General
Patrick J. Collins, Esquire
19 Pulgini, 2020 WL 2121467, at * 8.