Defendants has right to access PSI

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A defendant has the right to access his presentence investigation report (PSI), after his attorney files a no-merit brief, the Wisconsin Supreme Court held on Dec. 21.

The court concluded, “To properly respond to the mo-merit report, the defendant must have access to the record in order ‘to raise any points that he chooses’ The PSI report is an essential part of this record (cite omitted).”

Michael J. Parent was charged with a seven-count complaint in 2003, and pleaded guilty to felony escape and two counts of felony theft. A PSI was prepared, and, at sentencing, Parent and his counsel told the court it contained to significant factual inaccuracies.

Parent was sentenced to 11 years initial confinement and 11 years of extended supervision.

Parent’s appointed counsel filed a no-merit brief, stating that there were no non-frivolous issues for appeal. Counsel also requested a copy of the PSI for Parent. Eau Claire County Circuit Court Judge William M. Gabler denied the request.

Counsel then moved the court of appeals for access to the PSI, but the court of appeals denied the motion. Counsel then sought a writ of supervisory control from the Supreme Court, which vacated the court of appeal’s order and remanded the case with instructions to review the circuit court’s order for an erroneous exercise of discretion.

The court of appeals then certified the case to the Supreme Court for clarification as to the procedures and factors to consider.

The Supreme Court accepted certification, and vacated the circuit court’s order denying Parent access to the PSI, in a unanimous decision written by Justice Louis B. Butler, Jr.

The parties had framed the issue as a conflict between the confidentiality provisions of the former sec. 972.15, and the requirements of Rule 809.32(1) that an appellant be served with a copy of the record and be given an opportunity to respond to the no-merit report.

However, the court declined to address any conflict between the two, real or apparent.

Instead, it treated the recent amendments to sec. 972.15 (effective Apr. 21, 2006) as retroactive, because they are procedural rather than substantive, and because they are more readily harmonized with Rule 809.32.

Subsection (4m) of the amended statute provides, in relevant part, “The district attorney and the defendant’s attorney are entitled to have and keep a copy of the presentence investigation report. If the defendant is not represented by counsel, the defendant is entitled to view the presentence report but may not keep a copy of the report.”

The court concluded that permitting a defendant in a no-merit appeal the same access to the PSI as an unrepresented defendant is consistent with both the statute and the no-merit procedure.

The court reasoned, “[Rule 809.32(1)(e)] and [Anders v. California, 386 U.S. 738 (1967)] guarantee a defendant the right to respond to the no-merit report filed by his or her counsel. To have a fair chance to respond to appointed counsel’s conclusion that an appeal in the defendant’s case would be frivolous, and to raise any points that he or she chooses, a defendant is constitutionally and statutorily provided access to all parts of the record not under seal or subject to redaction.”

The court found that the defendant should be treated the same as an unrepresented defendant, with respect to his access to the PSI. As such, he may only view the report but may not keep a copy of it, whereas a defendant’s attorney may keep a copy of it.

The court wrote, “for the limited purposes of determining the procedure for accessing the PSI report under Wis. Stat. sec. 972.15(4m),
a defendant in a no-merit appeal is in the same shoes as a defendant who is ‘unrepresented,’ and should be treated as such.”

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The court also adopted and extended the reasoning of the court of appeals in State v. Skaff, 152 Wis. 2d 48, 447 N.W.2d 84 (Ct. App. 1989), in which the court held that a defendant represented by counsel at sentencing could not be denied access to his own PSI, when an unrepresented defendant has access to his, pursuant to sec. 972.15(2).

The court reasoned, “because a represented defendant under subsection (2) is allowed access to his or her PSI report prior to sentencing, we can discern no reason why a represented defendant is not given comparable access following conviction under subsection (4m)(footnote omitted).”

Turning to the procedures to be followed, the court stated that a defendant who desires to view the PSI must notify the court of that. The circuit court judge then must review the PSI and redact “information that may be confidential under other law.” The court must also give the defendant a meaningful opportunity to view a copy of the report.

However, the court stated that the defendant’s viewing of the PSI must occur under conditions in which the opportunity for copying or disclosure to others is precluded.

Finally, the court addressed the Attorney General’s access to the PSI. The office’s standard procedure has been to file a motion seeking access with the court of appeals. The court stated that, in the future, such requests should instead be directed to the circuit court.

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David Ziemer can be reached by email.