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Presentence Report – Independent Nature of Process of Preparation Limits Party’s Ability to Attempt Ex Parte Influence

State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding:

¶32. We must also note that the inappropriate nature of the contact between the district attorney’s office and the Division of Community Corrections borders on ex parte communications. Our supreme court has acknowledged the importance of the PSI to the sentencing process. State v. Suchocki, 208 Wis. 2d 509, 518, 561 N.W.2d 332 (Ct. App. 1997). The securing of a PSI is an integral part of the sentencing function and is solely within the judicial function. Young v. State, 49 Wis. 2d 361, 368, 182 N.W.2d 262 (1971). The purpose of a PSI is to assist the judge in selecting the appropriate sentence for the individual defendant. State v. Knapp, 111 Wis. 2d 380, 384, 330 N.W.2d 242 (Ct. App. 1983). The Division of Community Corrections does not function as an agent of either the State or the defense in fulfilling its role but as an agent of the trial court in gathering information relating to a specific defendant. Suchocki, 208 Wis. 2d at 518.¶33. The preparer of the PSI is to be a neutral and independent participant in this sentencing process. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990). Presentence reports are designed to gather information concerning a defendant’s personality, social circumstances and general pattern of behavior so that the judge can make an informed sentencing decision. Knapp, 111 Wis. 2d at 386. In Wisconsin, the entire sentencing process is to be a search for truth and an evaluation of alternatives and any advance understanding between the prosecutor and defendant must not involve any persons conducting a presentence investigation for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971).

¶36. The integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective. Id. at 518. A defendant’s cooperation and openness depend upon the objectivity of this report; a cooperative and open relationship would be impossible if the defendant perceives the probation officer to be a mere puppet of the district attorney’s office. Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecution or the defense. Id.

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