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Presentence Report: Authority to Order Destruction

State v. Brandon M. Melton, 2012 WI App 95, WSC review granted 11/14/12(recommended for publication), supreme court review granted 11/14/12; case activity

Under “unique facts,” the circuit court possessed inherent authority to order destruction of a PSI: the PSI contained uncharged offenses irrelevant to sentencing whose inclusion was improper under DOC rules; and, though sealed, it coexisted with a second PSI in the court file:

¶22      The circuit court did not articulate any public policy reasons for rejecting Melton’s request to destroy the entire PSI report, nor does the record reveal any.  Rather, the circuit court concluded only that it lacked inherent authority to order the PSI report destroyed.  We do not agree.[6]  The circuit court has the authority to destroy the first PSI report to prevent confusion as to which PSI report in the file should be used for sentencing.  Courts exercise inherent authority “to ensure the efficient and effective functioning of the court, and to fairly administer justice.”  See Henley, 328 Wis. 2d 544, ¶73.

¶23      It is true that at the time the circuit court modified the order to destroy the first PSI report, and instead ordered that the report be sealed, the original sentencing was completed.  However, Melton’s appeal was still pending and the potential existed for resentencing.  There were two sealed PSI reports in the file, the first report that had been ordered destroyed, and the second report, on which the sentencing court relied. The existence of two PSI reports in a file presents an opportunity for confusion and injustice.  Even if clearly labeled, the possibility exists that at resentencing the “wrong” PSI report would be used.  Even without considering the DOC’s subsequent use of the PSI reports, it would be reasonable for a circuit court to conclude that the “wrong” PSI report should be 
destroyed to prevent misuse.  That is certainly a matter of efficient judicial administration and fairness at a potential resentencing, and as such, is within a circuit court’s inherent powers.  See id.

State v. Bush, 185 Wis. 2d 716, 519 N.W.2d 645 (Ct. App. 1994) (“policy principles and considerations of judicial administration dictate that courts should not exercise their jurisdiction to correct PSIs for reasons solely related to the Department of Corrections administration”), distinguished):

¶18      Here, the State relies on the above language from Bush to argue that the circuit court lacked inherent authority to destroy the first PSI report because Melton’s sentencing was completed.  However, Bush is distinguishable for several reasons.  While holding that the presentence investigation statute conveyed no express authority to strike a PSI report, we explicitly stated in Bush that we were not reaching the issue of whether the court had the inherent authority to do so.  Id. at 722.  Furthermore, we affirmed the circuit court’s refusal to strike the PSI report in Bush on entirely different grounds than those presented here, namely, the circuit court’s proper exercise of discretion to refuse jurisdiction on public policy grounds.[5]  Id. at 722-23 (“‘[A] court having jurisdiction can decline to exercise it if there are sufficient policy reasons to do so.’”) (brackets in Bush; citation omitted).  And unlike Melton, Bush requested modification of the PSI report for the purposes of DOC programming, not sentencing.  Id. at 720-21.

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