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Presentence Report — Defense-Prepared — Confidential Character of Defendant’s Statements

State v. Thomas A. Greve, 2004 WI 69, on certification
For Greve: Jeffrey J. De La Rosa

Issue: Whether State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), construing Wis. Stat. § 972.15 as limiting the use of a court-ordered presentence investigation report (PSI) to postconviction settings, also applies to a defendant’s sentencing memorandum.


¶17. The confidentiality afforded to court-ordered PSIs under Wis. Stat. § 972.15 that Greve seeks for his sentencing memorandum is contained within subsection (4). It provides that “the presentence investigation report shall be confidential . . . .” …

¶20 … (In) order to arrive at the conclusion Greve asks that we reach, we would have to conclude that subsection (4) refers to documents in addition to those described in the other subsections of § 972.15. However, nothing in the plain wording of subsection (4) or of any other subsection of § 972.15 indicates that is what the legislature intended. Accordingly, we conclude that the plain language of § 972.15 refers only to court-ordered PSIs and does not refer to a defendant’s sentencing memorandum.

¶21. Greve also argues that even if the legislature did not intend that privately prepared sentencing memoranda should be included with the PSIs described in Wis. Stat. § 972.15, our decision in Crowell should be extended to defendants’ sentencing memoranda because they serve the same purpose as court-ordered PSIs. Greve argues that Crowell is broadly written, and therefore is elastic enough to be expanded to apply its concepts to a defendant’s sentencing memorandum. We conclude that Crowell is a statutory interpretation case and cannot be expanded to a defendant’s sentencing memorandum not described in the statute.

The court goes on to say that public policy considerations don’t require that a defendant’s statements in a defense-commissioned PSI be confidential, ¶¶36-40. Take careful note of the split on the separate issue of whether the right of allocution is constitutional, or merely statutory (§ 972.14(2)). For discussion of federal treatment of this issue, see U.S. v. Reyna, 5th Cir. No. 01-41164, 1/28/04 (itself concluding that though the right to allocution is neither constitutional nor jurisdictional, its unobjected-to denial is nonetheless presumptively prejudicial, at least where the sentence isn’t “at the bottom of the guideline range or if the court rejected arguments by the defendant that would have resulted in a lower sentence”). Compare People v. Evans, Cal SCt No. S141357, 7/24/08 (California limitation of allocution to sworn statement subject to cross-examination is constitutional). Wisconsin case law has long recognized that allocution is afforded as a matter of due process. E.g., Bruneau v. State, 77 Wis. 2d 166, 174, 252 N.W.2d 347 (1977). However, a plurality of 3 would reverse that line of authority, and make the right purely statutory. ¶¶29-35. They lose the decisive fourth vote on this point, Justice Crooks, who concurs to say that though he wouldn’t reach the issue in this case, there’s “a strong possibility” allocution will be supported by the Wisconsin Constitution. ¶¶41-44. As a result, the court’s holding is limited to a view that defense-prepared PSIs have no statutory support safeguarding evidentiary use. The implications are all too obvious, and the dissent usefully summarizes them:

¶60. As I read the lead opinion, a defendant cannot repeat word-for-word to a person preparing his sentencing memorandum what he told the person preparing the PSI, without losing the protections of the PSI statement recognized in State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989). Correspondingly, a defendant cannot (1) expand his discussion of the offense; (2) personally clarify error in the PSI’s description of the offense; (3) explain his motivation for the offense; or (4) personally express apology and remorse for the offense without putting himself in jeopardy. The logic of the lead opinion strips a defendant of use immunity even if he only quotes from his statement in the PSI because, unlike the PSI, the sentencing memorandum is not a confidential document. In short, the majority sharply curtails a defendant’s right to make his own case at sentencing.

¶61. The State reassures us that the defendant can say everything he wants to say in the PSI and receive immunity for it. This does not explain what the defendant should do if there is no PSI,18 or if the defendant forgets something until after he sees the written PSI, or if the PSI leaves something out or gets something wrong. In State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), this court acknowledged that “some of the information in a PSI may be unverified and some of it may be inaccurate.” Id. at 194. A defendant is entitled to be sentenced on the basis of true and correct information.

¶62. In essence, the State contends that the defendant has no right to make the case for himself at sentencing in the way he wants to make it, unless he is willing to surrender his rights against self-incrimination if there is a second prosecution.

¶63. The majority forces a defendant to choose between preserving the immunity for statements made in the PSI, or making the most effective case he can in his own sentencing memorandum. He cannot do both. If the defendant chooses to preserve his immunity, he must restrict the range and candor of his sentencing memorandum. This will limit the defendant’s right to make his case to the court, and it may deprive the court of information. If the defendant speaks candidly about the offense in his sentencing memorandum, he must give up the protections afforded to his statements under Wis. Stat. § 972.15. This severely undermines the Crowell decision.

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