*1 3, argued on review for November Petition review allowed aside, case remanded December sentence set re-sentencing June Petitioner, v. BUCHEA, JOSEPH MARSHALL Respondent. SULLIVAN, 497 P2d *2 Hadley, Deputy Ken Public C. Defender, Salem, argued petitioner. cause for him With on the brief Gary was D. Public Babcock, Defender, Salem. Carney, Attorney L. Assistant
James General, Sa- argued respondent. the cause lem,
HOLMAN, J. petition case taken on was
Consideration post-conviction for review from the denial of relief App Appeals. P2d the Court Or pleaded guilty petitioner at- The dwelling. judge burglary tempted in a The trial investigation report pre- presentence to be ordered a petitioner, pared for which the his consideration attorney, through requested permission see his request being was denied, and, to his sentenced. petitioner sentenced thereafter, the trial maximum sentence authorized. person question involved whether a
The sole Sixth ‹ of a under the crime has who is convicted Fourteenth › Amendments the United States 11, fi Oregon Section I, and Article Constitution considered to see a Constitution *3 of sentence. The trial in determination his person Appeals held such of that and the Court court does not. summary hearing provides on for 137.080
OES mitigation punishment. of aggravation OES 137.090 or provides : as follows then alleged punishment justify to are circumstances “The mitigation the shall aggravation or of testimony by of presented 'witnesses exam- the
be except open that when a witness is so court, in ined deposi- his attend, as be unable to to taken out infirm sick may such time and of court tion ‹ enjoy prosecutions, shall the the accused all “In * criminal * * right for his of Counsel defense.” have the Assistance * * * › * * “* person any deprive any of State shall nor * * * * * law; process of *.” liberty, due without fi prosecutions, the accused shall have the all “In criminal * * * * * counsel; by himself and heard to be party, place, to the adverse and such notice deposi person authorized to take and before such tions, may consider as court directs. The court the investigation report conducted 137.530.[ fl ] by pursuant probation to OBS officers may copy report A be made available such the state counsel and a reasonable (Empha pronouncement sentence.” time before by subject sized material was of amendment Oregon 1.)§ Laws ch Judiciary 1. The Minutes of and Senate the House Legislative Assembly Committees of the and the recommendation the Practice and Procedure Com Bar (cid:176) Oregon mittee lan State disclose that the guage of the amendment was used because some trial judges thought they any that could not disclose infor presentence report. mation contained The lan guage plain was intended to make trial courts they could make information had available, guilty make available or be of an abuse discretion, suggested. – as has been fl ORS 137.530: by officers, fully court, “Probation when directed shall investigate writing and on the circum- offense, history record, stances social and present any defendant; condition and environment cases,
unless the court directs otherwise in individual no de- placed probation fendant investigation shall be on until of such presented has been considered desirable, court. Whenever investigation and facilities therefor, exist physical shall include and mental examinations of such defendants.” (cid:176) Oregon Reports Bar State Committee 68. – dissenting opinion by Tongue, J., pointed In the it is out 32(c) P
Fed Crim has been construed R § some federal courts judicial granting judges discretion to federal trial to disclose *4 presentence investigation part and, all of a thus, the discretion judicial subject Knupp, U. S. v. 412, review. 448 (4th F2d 413 1971); Dockery, App 9, U. S. 145 US Cir v. 1178, DC 447 F2d 1183 denied, (DC Cir), 950; 299, cert. 404 US 92 S Ct L30 Ed 2d 266
226 informed question to he of a defendant’s
The investigation report of his of the contents much debate. † purpose recently The stimulated has (5th 1969), cert. 1217, Cir (1971); U.S., 1221 F2d 410 Good (1970). 1131, A fed- denied, 1002, 2d 413 25 L Ed US 90 S Ct 397 say course, We are means, courts does. federal of what eral rule Oregon Legislature. dealing enacted here with a statute † pre complete, opposed disclosure of automatic Authorities include: reports to their counsel to defendants sentence and/or Investigative Report Pre Must Be Parsons, The Presentence J. B. Probation, Document, March 28 Federal served aas Confidential Confidentiality Thompsen, Presentence p. 3; 1964, R. C. 1964, Probation, Report: Position, March 28 Federal A Middle Confidentiality Gronewold, p. 8; Barnett and D. H. B. J. 1962, p. 26; Report, Probation, C. C. March 26 Federal Presentence Hincks, Proposed 34(c)(2), Opposition Rules Federal to Rule October-December, Probation, Procedure, 8 Federal Criminal 1944, KEVE, p. 3; OFFICER INVESTI THE PROBATION P. 14-15 THE PRESENTENCE REPORT A GUIDE TO GATES: Confidentiality Roche, Pre (1960); The Position A. Albany Investigation Report, (1965); L. J. L Rev 206 sentence Reports, 5 Cath Sharp, olic UAL Rev Nature Presentence The Confidential very compulsory or, least, supporting and total Authorities practices PRESIDENT’S COMMISSION ON are: liberal disclosure JUSTICE, OF AND ADMINISTRATION ENFORCEMENT LAW The Society (1967); Challenge in Free 144-45 PRESI- of Crime AD- LAW ENFORCEMENT AND ON DENT’S COMMISSION Report: JUSTICE, Task Force The Courts OF MINISTRATION 20 ASSOCIATION, Project (1967); on Minimum AMERICAN BAR Sentencing Justice, Alternatives and Pro- for Criminal Standards 1968); (Approved draft COMMITTEE ON RULES cedures 200-28 OF PRACTICE THE AND PROCEDURE OF JUDICIAL CON- Advisory Note, STATES, THE UNITED Committee FERENCE OF Proposed Rules, to Criminal 48 FRD 616-18 Amendments Lehrich, (1970); Use Presentence Re- S. Disclosure R. States, (1969); ports United 47 FRD 225 PAPERS DELIV- in the SENTENCING, Rubin, INSTITUTE ON S. AT THE Sen- ERED Rationally Explained, (1968); 42 FRD tences Must CIVIL TO RULES ON PROCEDURE —ADMIR- AMENDMENTS ALTY PROCEDURE WITH AND MARITIME —CRIMINAL RE- CONFERENCE, Douglas, W. THE JUDICIAL O. Mr. PORT OF Douglas’ (dissenting promulgation from Statement Justice Federal 32(c)(2)), Procedure of Criminal 39 FRD § Rules AN, CRIME, JUSTICE, (1966); AND TAPP P. W. CORRECTION (1960); INSTITUTE, Code, AMERICAN LAW Model 553-59 Penal
237
(Tentative
54-55;
2, 1954)
7.07(5),
M. N.
Comment
Draft No.
§
Reports,
Right
4
Bach,
to
Access
Presentence
The Defendant’s
of
Right
Schaffer,
(1968);
The
Crim L
160
B.
Bull
of
Defendant’s
Note,
Reports,
(1967);
L
674
Access
Presentence
3 Crim Bull
to
Right
Reports:
to Rebut
Disclosure
Presentence
A Constitutional
Rutgers-Camden
by Cross-Examination,
Adverse
3
Information
Response
Albany
Roche,
(1971);
Higgins,
L
L
to
29
J 111
J. P.
(1965);
Higgins, Confidentiality
Re-
Rev
ports,
Presentence
225
J. P.
Right
Albany
(1964); Note,
De-
L
12
Criminal
28
Rev
Challenge Report
Determining Sentence,
49
Used
fender
(1949); Note,
Due
Colo L
567
Procedural
Process
Judicial
Rev
Sentencing
(1968);
Wyzanski,
Felony, 81
821
Harv L Rev
C. E.
Judge’s
Jr.,
Responsibility,
A Trial
Freedom and
65 Harv L Rev
(1952);
Guzman,
1281
R.
Access to Presentence Re-
Defendant’s
ports
Courts,
(1966);
in Federal Criminal
Lorensen,
52
L Rev
Iowa
161
Reports
W. D.
The Disclosure to
Presentence
Defense of
Virginia,
(1966-67).
in West
69 Va LW
Rev 159
The debate has been carried to the courts. Federal cases which
sought
have
discretion
curtail
not
to release the
under
32(c) (2)
Federal
Rules
Criminal Procedure §
are: United States
Rundle,
(3d
1969);
ex rel Brown v.
417
282
F2d
Cir
Baker v.
(4th
States,
1968);
931
States,
United
388 F2d
Cir
Smith v. United
(5th
1955);
Stephan
223
States,
F2d 750
Cir
v. United
(6th Cir),
denied,
781,
858,
133 F2d 87
cert.
318 US
63 S Ct
87 L
granting
(1943).
Ed 1148
State cases
the defendant
to the
access
Harmon,
125,
(1960);
include State v.
147 Conn
well as the for and reports. theory of such use disclosure behind the presentenee investigations is that the sentence should to the offender: should fit be individualized merely him, crime. If correction as intended effect reformation and rehabilitation, public, provide protection well to the the sen- *6 history tence the life should be tailored to defendant’s personal and characteristics. proponents mandatory disclosure of the
The of simply say reports that the intolerable contents of the possibility a de exists that without such disclosure unjustifiably required to an harsh fendant will be serve opportunity to or of, no learn sentence because he has They presentence report. in his inaccuracies rebut, argue permits possibility procedure a such a which that representation process or effective does not afford due by counsel. ‡ say mandatory opponents of disclosure
The
dry
(1)
up
of
the best sources
would:
disclosure
prom-
confidentiality
could
be
information because
are relied on
intimates who
and
ised to relatives
life
provide
about the defendant’s
information
critical
‡
only
interesting
it is
those who are advocates
to note
It is
position. Except
who
the
take
of
individual
of the
standards, no one has
minimum
Bar Association’s
the American
pre
position
prosecutors should be entitled to see
taken the
they
reports
can
favorable
correct misinformation
so that
sentence
to
supplement
the
with relevant
information
defendant
damaging
and
has been omitted. If
to defendant
which
which is
made, it
seem that it should be made available
would
disclosure is
to the
defendant,
public
prosecution
to the
as
as
because the
well
dangerous
protected
persons
from
particularly
also
might
to be
who
would be entitled
large.
This
true in view of
be at
otherwise
non-discovery
omission
of the
because
the
of correct unfavorable
the
that the chances
fact
greater
information would seem to be
than
the inclusion
incorrect
information.
chances
endanger
(2)
circumstances,
under some
character;
and
(3) alienate defendant
information;
those who furnish
provided
family
in-
who have
from
and close friends
relationship with
continued close
formation and whose
may
necessary
(4)
rehabilitation;
to his
defendant
adjustment
of the defendant more
and treatment
make
otherwise would be because
than
difficult
diag-
by abrupt
generated
disclosure of
trauma
(5) pro-
and emotional conditions;
noses
his mental
sentencing process.
unduly protract
liferate
Supreme
has not
United States
Court
directly
re-
States Constitution
decided if
United
quires
information
disclosure
opinions
lawyer.
its
Moreover,
or his
defendant
subject
difficult to reconcile.
are somewhat
relate to
Burke,
US
S Ct
In Townsend v.
pleaded
(1948),
guilty
defendant
A later, decided Court Williams v. New York, 337 US 69 S Ct L Ed jury first-degree A convicted Williams murder and prison. judge, recommended life however, not being by recommendation, bound sentenced Wil- imposed by The death sentence liams death. was concerning reason of additional information the de- background and character fendant’s which was ob- by judge presentence investigation. from a tained by was information recited This the time by no was made of sentence effort the defendant lawyer refute it. The his contended without was sentenced he constitutional due was process the sentence based because informa- opportunity to he had no refute and which tion oppor- supplied witnesses whom he had no was *8 trinity or to cross-examine. confront either to deprived of was not defendant held Court evidentiary ap- rules process that different due and sentencing. Black plied during Mr. Justice than trial stated for the Court: for different historical basis to “In addition sentencing evidentiary governing trial rules practical
procedures reasons for there sound are is issue In a trial before verdict the distinction. having engaged guilty in is whether a defendant spe- has been of which he certain criminal conduct cifically been fash- of evidence have accused. Rules narrowly confine trials which ioned for the trial contest to the strictly relevant to evidence that charged. particular rest offense These rules consuming necessity prevent part a time a on to They confusing issues. were trial of collateral and also with the issue solely prevent designed concerned tribunals guilt particular from of a offense being for that offense influenced convict habitually engaged had evidence in other is sentencing judge, A however, misconduct. guilt. narrow issue His task confined statutory or constitutional limits is to within fixed type punishment and extent after determine guilt Highly been determined. has the issue his selection not essential —to of an relevant —if appropriate possession sentence is fullest concerning possible the defendant’s life information concepts And modern characteristics. individ- punishment ualizing have made all the more sentencing judge necessary not be denied an pertinent opportunity to obtain information rigid requirement adherence restrictive rules properly applicable to the trial.” 337 of evidence 246-47. at US
formation
“*
**
intelligent imposition of sentences
now relied
We must
[*****]
recognize that
by judges
most
guide
would
the in-
them
*9
if
unavailable
information were restricted to that
given
by
open
subject
in
court
witnesses
to cross-
probation report
examination. And the modern
concerning
aspect
every
draws on information
of a
type
life.
defendant’s
The
and
of
extent
this infor-
totally impractical
impossible
mation make
if not
open
a
testimony
with cross-examination. Such
procedure
endlessly delay
could
criminal ad-
in
ministration
a retrial of collateral issues.
“The considerations we
out
have set
admonish
against treating
due-process
us
clause as a uni-
throughout
form command that courts
the Nation
age-old practice
seeking
abandon
of
their
informa-
guide
judg-
tion from out-of-court sources to
their
enlightened
just
ment toward a more
sentence.
* * * p]ie due-process clause should not be treated
freezing
procedure
as device
sentencing
treat
the evidential
procedure.
in the mold of trial
toSo
due-process
clause would hinder if not
preclude all courts—state and federal —from mak-
ing progressive
improve
efforts
the administra-
justice.”
tion of criminal
v. 1337; York, New 337 69 241, US L 1079, S Ct 93 Ed §
16A CJS Constitutional Law 683, 593.” 227 Or at 375.
In v. 229 Gladden, Or 366 99, P2d 171 Coffman (1961), objected defendant the use of unsworn statements of his criminal record at the time of proper. his sentence. We held that such use was Also v. see Barber Gladden, 143, Or 363 P2d 140, (1961), denied, cert. 369 US L 82 S Ct 7 Ed 2d 843 (1964), Scott,
In 237 Or P2d State objected the defendant of a the use requested nor because neither he the state had one. He also contended that contained statutory ag- material which was inadmissible in a gravation mitigation hearing. Specifically, and he objected to the inclusion list of arrests as distin- guished objected from convictions. He also to the report. hearsay evidence in the We held the arrest reports properly sentencing were considered an indication character associates hearsay and that the defendant evidence could be sentencing purposes. We said: used objected generally “The the hear- report. say in the evidence v. Gladden, Coffman (1961), P2d 171 99, 102, 366 229 Or earlier de- we cited held therein, cisions unsworn statements considering the trial be received court in could *11 imposed. the sentence to be Williams v. New York, (1949), 1079, 69 93 L 241, S Ct ed 1337 337 US is proposition hearsay for the now cited evidence sentencing procedure. in the is admissible v. United Hoover (10th 1959). F2d States, 268 787 Cir accuracy case, however, the Williams of the hearsay disputed, was not statements as the court pointed out. Oregon requires probation statute
“The
of the of-
‘circumstances
officer to
fense,
on the
history
present
social
record,
any defendant’
of
ORS
and environment
condition
137.530.
of a similar
said
The
California
any
probation
not make
‘A
officer could
statute:
required
investigation
Penal
report of
nature
if restricted to the rules
section
Code,
history
record and
of evidence. Much
of
as circumstances surround-
as well
defendant,
hearsay
investigated
ing
are
and can
crime,
only by
hearsay
reported upon
in-
use
and
formation.
contemplates
Code,
It
clear that Penal
section
is
hearsay
matter in the
the inclusion of
probation
report.’ People Valdivia,
officer’s
(1960).
Rptr
App2d 145, 148, 5 Cal
It was
Cal
hearsay
not error for the trial court to consider the
report.”
statements in the
Since the use evidence has been of confrontation must follow that the and cross- receipt of examination is vital to the all informa- sentencing process. tion bears opinion which most recent touches on the Our problem Gladden, ns now is before Gebhart v. 243 Or granted probation was P2d 29 145, 412 Gebhart later revoked. He was at a which was sentenced hear ing without services of he was counsel. We held where sentencing part process was the trial and that representation Avasentitled to counsel approval quoted Avith from Martin v. time. We (5th F2d 20 ALR2d 1236 States, Cir United 1950): “ proceeding very nature at the time ‘The presence imposition makes the of sentence necessary at that time if the counsel defendant’s constitutional requirement tois be met. There advisability of an counsel. a real need
then shortly, be determined. appeal then, must Then *12 opportunity presentation
is the afforded for the in Court facts extenuation of or in the offense, explanation of the defendant’s conduct; to correct any reports errors or mistakes in of the defendant’s past appeal equity in record; and, short, to the of the of in Court its administration and enforcement
penal Any Judge experi- laws. with trial Court acknowledge ence must that such disclosures fre- quently mitigation, suspension, result in or even penalty. That it is also true that such discussion contrary sometimes has a result, does not detract possibilities from the fact the nature and of are such important stage proceedings presum- as make the absence of counsel at this time ” ably prejudicial.’ 243 Or 148-49. at Certainly, lawyer services the time of they sentence cannot asbe effective as otherwise would lawyer be when the has been informed the basis sentencing his client. He can- any call to the court’s attention claimed errors or report. mistakes in the questions consequence
No constitutional are requires cut weighing and dried. Their solution competing question interests; constitutional exception. this case is no The interests of both the public promoted by are a full history past sentencing judge. of the defendant’s to the judgment It that in some is our considerable measure by requiring would such information be curtailed com plete of all information disclosure used in sen tencing process. completely hold We value of informing judge outweighs the admitted risk sentencing developed on a defendant misinformation investigation. in the We make this decision, significant empirical noting there are no studies guide us. presentenee if the information However, readily identi can affect his sentence and it is public in and none of the reasons for fiable, nature, apply non-disclosure can constitutional fairness it, *13 requires provides its 137.530 the disclosure. OKS “* * * presentence report shall contain the circum history the social record, stances of criminal offense, present any and condition and environment of defend * * Certainly, argument no ant; can be made for pre in information non-disclosure of contained concerns a sentence which defendant’s contact way prior with law trials and con arrests, generally referred as which are all to his victions, record and which information comes from police and records sources such as court records reports. given None of the reasons for non-disclosure type any application to information. The have dry pre up would not to source of such information regu investigators if information were sentence larly is to defendants. This information which disclosed protection already developed without the has been confidentiality public and which has become either knowledge public that it has in the sense been col agency. reposes public with a It is our lected deprivation process opinion a would be due that it to withhold of counsel such infor services and of the countervailing public no interest inasmuch mation requires its non-disclosure. depriva- a is that it is of Townsend thrust process on base a sentence erroneous
tion due to has the defendant no when, because coun- information point opportunity out court’s mis- no sel, he has was Court concerned apprehension. In Townsend public nature. presentence On with information primary thrust Williams v. New hand, the other Tori, 337 US (1949), S Ct 93 L Ed was a normally concern information which would except through “unavailable” report. implies Therefore, whatever Williams as to the lack only disclosure, is relevant to informa- already tion public which is not in nature. It is our belief that Toionsend must still be heeded when sen- tencing judges dealing are with information which readily any identifiable and under circumstances not susceptible dangers guarded which the Court against in Williams. other words, when information concerning a defendant’s contact ivith the law already is relied public has become police nature in agency the sense that some court or repository, is its the defendant and his counsel must opportunity point have any an out error They that is involved. cannot be deemed to have such opportunity they unless know what that information is. *14 interesting parade
It is
note that the
to
of “hor
by
proponents
ribles” used
the
of unlimited disclosure
n —-thosecases in which obvious
miscarriages
justice
sentencing
in
have occurred because of a misinformed
judge mainly include
in
those which the misinforma
—
record. · It
may
tion concerned the defendant’s
·
Pohlabel,
Super
most notorious
The
case is State v.
61 N.J.
242,
(App
1960),
It has been suggested one of conse- hold the matter is constitutional to to a trial disclose in order quence require Kunz, A2d v. State 128, such information. NJ of New held that Jersey Court Supreme 895 (1969), and “as matter fairness” a “as a matter of fundamental to was entitled fairness” a defendant rudimentary concerning to be heard presentence report see “rudimentary” fairness it. “fundamental” Though to was not “prepared the court disclosure, required contributing charges report suggested oí the delin- several exchange guilty quency dropped for his had in of a minor been charges against plea. delinquency defendant were erro- filed alleged stemming rape; neously by from an treated they but, fact, of a much related to circumstances less were Supreme The Arizona Court was moved reduce serious nature. years. term three to five Keve, OFFICER in THE PROBATION INVESTI- Professor 19, A TO THE PRESENTENCE REPORT GATES: GUIDE attorney pro- an an was informed relates incident where had bation the defendant been arrested elsewhere officer years forgery earlier; attorney check of few made his own forgery belonged able show that arrest record and was quoted person A of the same name. similar another Reports Lehrich, R. S. The Use and Disclosure Presentence States, (1969), 47 FRD 243-44 who asserts the United frequently. occur errors Burke, S 334 US Ct 92 L Ed Townsend See *15 (1948), Myers, and United rel Jackson v. 374 F2d States ex (3d judges 1967), trial Cir for two cases in which indicated at sentencing they record information on were relying which information later was discovered to be erro- but misinterpreted or have the court. neous been [such find fairness] that propor is of constitutional only disagree tions.” Not do we Jersey with the New concerning the extent to which disclosure is re quired illogical but, deny also, it seems to us to magnitude. matter is one of constitutional Infor mation which can be erroneous and which is vital to being extent the defendant’s sentence is withheld any countervailing from public him without interest being by any served. “That which we call a rose other name would smell as sweet.” (cid:181)
It has been inferred review of the trial judge’s permitted by discretion as certain federal eases 32(c) n interpreting § Fed E P Crim consid without eration way of constitutional issues would in some simplify appellate why review. We fail to see appear scope should be so. It would that the of review judicial under a discretion criterion would be broader than one limited to a claim defendant was rights denied Ms constitutional because he was not appeared informed of Ms criminal record it presentence report. in the require public Because we disclosure of such in require it should not be inferred formation, that we proof supporting it. Nor do we formal intend that the testimony to take defendant shall have con troverting adequate pro information. We believe tection will be furnished to the defendant if he is point to the trial court allowed to out those factual presentence part required matters in to him which he considers to be be disclosed untrue leaving misleading, to the trial or to ascertain proper such means as he bAr deems falsit}7 truth (cid:181) Juliet, II, Act scene 2. Romeo n supra. in note 6 cited See cases
241 challenged or, if he matter from chooses, remove the his consideration. provisions previously held of have
We 137.110, n require the examina OES 137.090and aggravation open tion in in an or of witnesses court hearing, mitigation punishment apply to not of do reports presentence and information furnished in way, reports in addition another such are testimony, by fur can direct which information be proceedings. Scott, 330, 237 Or nished in State Following (1964). 137.090 Scott, P2d 397, 390 ORS was amended n provi of the the inclusion therein presentence reports allowing sions consideration of mitigation hearings aggravation of sentence in or discretionary permitting of the disclosure contents reports However, defendant. to counsel history nothing legislative in oí there is apply to the an intention amendment which indicates presentence in the information included public requiring provisions testi the statute mitigation mony aggravation or in the witnesses hearings. to furnish a defend not it is error hold that
We part copy of a ant with record. n By so prior to his which relates n 137.110: ORS any kind, testimony representation of or affidavit or “No written, to or received can be offered or verbal in vided except pro- punishment, mitigation as aggravation 137.100.” 137.080 to in ORS n 400, Oregon 1965, 1. ch § Laws n given decision, here, anticipate will that this doWe finally application which have been
retrospective other cases opinion. Woods, De Stefano v. of this See the date as of decided (1968) Schaeffer, L Ed 2d 1308 Ct 88 S 392 US The Control Techniques Prospective Over “Sunbursts”: ruling, Rev 638-39 NYU L
holding, good dowe not mean to indicate that it is not practice for a trial to disclose the balance of the presentence report, opinion, if, his there no are confidentiality. valid reasons for its imposed upon The sentence set aside and the matter is remanded to the trial court of resentencing petitioner, conviction for the after that court has first furnished him the information presentence report in his which relates to his *17 criminal record. concurring part; dissenting
McALLISTER, J., part. portion opinion I concur in that of the which holds that the is entitled a matter of defendant constitu- right any “public tional the disclosure of informa- presentence report. tion” in his which is contained right will of no value that be unless the However, challenge accuracy permitted to defendant is the portion I from information. dissent that that opinion right which holds that the defendant has no “public prove portion information” the or some that false. thereof is concurring. J.,
TONGUE, by majority, agree result reached with the I upon majority disagree with the basis but result. has reached say fair to is while it some
I believe intimated that the refusal of a have trial other courts defendant to a criminal judge contents disclose may, under some circum- of a rights constitutional violate de- stances, may decision be the first which would fendant, my judgment; good there is hold. squarely so reason that a for the hesitance other courts hold right to know criminal defendant has a constitutional any report. part pre-sentence of a contents Once opened, slightly, may that door no matter how distinguish extremely the consti- between difficult right statements in a tutional of a to see pre-sentence relating to his convictions any and his to see and all statements included report. in such a
This
has often stated the rule that a case
by holding
adopted
will
decided
statute
not be
legislature to be unconstitutional unless
necessary
proper disposition
to a
determination is
Franzone, 243
Or
415 P2d
the case. See State
(1966);
Acc. Com.,
State Ind.
211 Or
Dodd v.
(1957);
ex rel
State
Bushman v.
310 P2d
Van
(1955), among
denberg,
326, 329,
ORS not to whether or make available the discretion any part pre- all of a for the defendant to counsel *18 my opinion, report. however, the In discretion sentence by judge upon the trial that statute is a conferred subject judicial to and is thus reversal for discretion abuse. my opinion it would be an abuse of that is also
It refuse to for trial dis- judicial a discretion majority the defendant what for the to counsel close pre-sentence report part of a which “that as describes Accordingly, prior criminal record.” I his relates to by majority, the but on agree result reached the with unnecessary it makes one which basis a different constitutionality of OES 137.090. upon the pass 2M majority opinion rejects
The
that
contention
providing
pre-sentence
that information included in
reports “may
made
available to counsel for de-
upon
fendant” OES 137.090 was
intended
confer
judicial
subject
trial courts a
which
discretion
is
by
may
review
this court
This
abuse.
be because
majority apparently
construes
statute
con-
as
ferring upon
judges
trial
an
discretion,
absolute
not
subject
by
majority
to review
Thus,
court.
says (at p 1695)
language
that “The
was intended to
plain
make
trial
courts could make information
they
not that
make
available,
had to
it available or be
guilty
suggested.”
of an abuse of
has
been
discretion,
my opinion,
all discretion
however,
conferred
judge,
a trial
whether
statute or
of
rule
judicial
subject
common law,
a
is
discretion
is thus
to review
for abuse
that discretion. Cf.
Guedon
Rooney,
621, 645,
245
procedure (Fed
similar rule of criminal
R
Grim
32(c)),
provided
P
under which it is also
that the trial
judge “may
part
pre-sentence
disclose” all
or
re-
port.
Dockery,
App
United States v.
145 US
DC 9, 447
(DC
1971),
F2d
cert
1178,
den,
1183
Cir
courts statute it does. areWe here with a by Oregon legislature.” enacted question Aside from the whether a statute or, may indeed, a constitution mean also what “courts say (ORS the statute does,” involved in this case 137.080), by providing pre- the contents of reports “may sentence be made available to counsel clearly upon for the defendant” confers discretion court to do so. may
It be that the of a criminal defendant to pre-sentence reports subject information in is a precisely provided should be more defined and specific statute proposals rule of court. Indeed, have been made for the revision of state and federal procedure statutes rules on this sub- ject, study based considerable of this most problem. majority opinion, par- serious See note 6. In § Relating TV, 4.4, see Part ticular, Standards to Sen- tencing and Procedures, Alternatives American Bar Project on Association Minimum Standards for Crim- (1968). also inal See discussion in Justice State v. 259 A2d Kuntz, 55 NJ *20 subject proper
Thus, this is a most for consid- by present Oregon eration Law Criminal Revision studying proposals which is for a Commission, now complete Oregon’s procedure revision completed statutes. has its that commission Until report, con- and until has been however, by Oregon legislature, opinion I am sidered subject should that judicial this is a be left judge, presently discretion of the trial subject by provided by this to review 137.090, ORS court.
the result I agree reached with the majority it does “not mean in its statement [*] * * good practice for a trial to disclose it is opinion, pre-sentence in his if, balance of the confidentiality.” for its there not valid reasons are opinion Again, that under however, I am of provisions is a matter within this of ORS 137.090 subject judicial to review court, of the trial discretion possible of that discretion. abuse court for