PSI Reports Case Analysis

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The conclusion of the court is rather unremarkable — a defendant cannot respond to a no-merit brief by his attorney in a meaningful way without access to the PSI (at least if he wishes to challenge his sentence).

Nevertheless, the decision is very significant for setting forth the procedures by which a defendant may access the report when his attorney files a no-merit brief.

The one troubling aspect of the opinion is that, although the court’s reasoning seems to suggest that a defendant has a constitutional right to access the report, the ultimate holding stops short, and only goes so far as to say that he has a statutory right.

The very first sentence of the court’s analysis cites the guarantee of the right to appeal in Article I, Section 21(1) of the Wisconsin Constitution.

Later, the court states that the statute and Anders v. California, 386 U.S. 738 (1967), guarantee a defendant the right to respond to the no-merit report, and adds “To have a fair chance to respond to appointed counsel’s conclusion …, a defendant is constitutionally and statutorily provided access to all parts of the record not under seal or subject to redaction (emphasis added).”

The ultimate holding, however, rests solely on its interpretation of sec. 972.15(4m), giving defendants whose counsel file no-merit briefs the same access as those who are unrepresented.

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In a footnote, the court explained, “Because we conclude that the statute grants Parent personal access to his PSI report, we do not address the constitutional questions that were discussed in State v. Skaff, 152 Wis. 2d 48, 53-55, 447 N.W.2d 84 (Ct. App. 1989). See State v. Dyess, 124 Wis. 2d 525, 533, 370 N.W.2d 222 (1985).”

The issue is important because, invariably, some defendants will claim that, although they were given access to their PSIs, the access wasn’t good enough — it did not provide a meaningful opportunity to respond to the no-merit brief: the time was too short; they don’t read the English language and were denied assistance; or some redacted material should not have been redacted.

In such cases, defendants (or their appointed counsel) must continue to frame the issue both as a statutory violation and a constitutional violation — both under the right to appeal in Article I, Section 21(1) of the Wisconsin Constitution, and the federal right to counsel.

Because the court based its decision solely on statutory grounds, lower court review of such issues will largely be limited to determining whether the statute, and the Supreme Court’s directives in this case, were followed.

However, failure to even raise the constitutional issues could prove costly by foreclosing the opportunity for further appellate review in the Wisconsin Supreme Court or federal courts.

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David Ziemer can be reached by email.