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State ex rel. Office of State Public Defender v. Wis. Court of Appeals, 2012AP544-W, rev. granted 6/13/12

on review of petition for supervisory writ; for SPD: Joseph N. Ehmann, Kathleen A. Pakes; case activity

Postconviction Reference to PSI 

Issue (Composed by On Point): 

Whether, before litigating a presentence report-related sentencing issue, postconviction counsel must obtain circuit court permission to “access, discuss, cite to, and quote from a PSI report.”

Fall-out from State v. Parent, 2006 WI 132, ¶45, 298 Wis.2d 63, 725 N.W.2d 915 (“we hold that a defendant subject to a no-merit appeal must notify the circuit court of the defendant’s desire to view the PSI report to permit the judge to review the PSI report and to redact as the judge deems appropriate identifying information of persons who provided information for the report and information that may be confidential under other law not discussed here”). In the present instance, the underlying case is a merits appeal raising a sentencing issue that necessitates reference to the PSI. The court of appeals ordered, as a precondition to briefing this issue, that counsel “move the circuit court for permission to access, discuss, cite to, and quote from the PSI report as needed in its appellate briefs.” The order is premised on Parent but, as the petition argues,  that case dealt with the defendant’s, not counsel’s, right of access. Though the argument is certainly more elaborate than this, the following excerpt pretty well captures its essence: “Because postconviction counsel has a statutory right to access a PSI report and a defendant has a due process right to challenge information contained in a PSI report, imposing a procedure that allows a circuit court at its discretion to limit an appellant’s ability to litigate a PSI sentencing issue ignores established law, creates a wasteful and meaningless proceeding and if that discretion is exercised violates due process.” (The petition isn’t posted on-line; check the case activity link above for the briefs in a couple of months, if you’re interested in the details of the argument.)

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