*1 Mich 244 MALKOWSKI PEOPLE Opinion the Court Reports Confidentiality—Stat- — Criminal Law —Presentence 1.
utes. confidentiality appear A does not on the face requirement authorizing reports (MCLA 711- statute § .14). Law —Presenten ce —Judicial Notice. 2. Criminal practice is fact Judicial notice taken of the regard presentence reports among judges the trial of Mich- uniform; igan is counsel to some allow examine the judges, upon course, request, as a matter other deny report depending upon to the access the facts and particular case; judges, in circumstances while still other policy, always deny reports. as a of fixed matter access to the Sentencing—Critical Stage Proceedings. 3. Criminal Law — convicted, of a who has been or has pled guilty crime, stage proceedings to a is a critical for him. Sentences—Appeal 4. Criminal Law — and Error. judge, judge alone, The trial and the trial makes the decision as to what a convicted defendant’s shall and the sentence length subject of sentence is not to review if within limits penalty (MCLA 769.24). of the lawful § Guilty. 5. Criminal Law —Sentences—Plea vitally important It to the defendant and to the ends justice that the sentence be based on accurate information and, great majority as the plead guilty, defendants References for Points Headnotes 1, 2, 6, 2d, 21 Am Jur Criminal Law 7] 303. § 2d, seq. et 29 Am Jur Evidence 3] § 2d, Appeal 5 Am Jur and Error 4] § seq. 2d, 21 Am et Jur Law 5] length of time probation or determination them only significant made prison are the decisions to be will be judge. *2 Reports. Law —Presentence 6. Criminal judge’s opportunity denial of an for defendant’s Trial sentencing presentence report and at the to see the before present and to additional facts and recommendations prejudicial so on two controversial items was not as to result miscarriage justice, in a where those items were whether report stating in the word “claims” used that de- grade completed “claims” to have fendant certain school imputation police opposed an unfair carries and that the were leniency (MCLA 769.26). Concurring Opinion Black, J. 7. Law —Presentence —Review of Presentence Report —Discretion. presentenee reports right Review is not within hut sound discretion the trial court and defendant failed show an aMise that discretion. from Appeal Court of Division Appeals, Y. J. P. J., and J. H. Brennan, Gillis and O’Hara, JJ., affirming Wayne, Thomas J. Roumell, Submitted May 5, (No. 1971. 20 April Term Docket No. 52,941.) Decided 7, 1971. July App affirmed.
Lee Richard Malkowski, also known as Lee Rich- ard De Cair, was on his convicted, plea of guilty, of unlawfully driving away automobile. Defend- ant appealed to the Court of Appeals. Affirmed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor William General, L. Cahalan, Prosecuting Dominick Attorney, R. Carnovale, Mich Arthur N. Bish- Chief, Appellate Department, op, Assistant for the Prosecuting people. Attorney, Legal
Arthur (Defenders’ J. Tarnow Aid Office — Detroit), Association defend- Defender ant on appeal. pled Defendant Lee Malkowski guilty J.
Adams, an automobile away to unlawfully driving April later he was sentenced to days Two in prison. two to five Defendant’s at years asked to see the before torney at the The trial again sentencing. com judge, request to see denying report, * * “ mented that statute authorizes these also requires confidentiality *3 reports these the purposes pre pared and and delivered used to the court con nection the A requirement with sentences.” confidentiality does not face of appear statute authorizing presentence reports. (MCLA 28.1144]) 771.14 Ann § 1954 Rev [Stat § 1 appealed. Defendant The Court of af- (25 firmed. Mich 195.) App granted We leave to “limited appeal to the sole issue of failing to allow defendant’s counsel to examine the presentence re- port.” (383 818.)
Defendant argues that if the right to counsel at is to have any counsel value, must he (Stat MCLA 791.229 Ann 1954 28.2299), provides Rev § § investigations by probation officers are “declared to be privileged or open confidential public communications not inspec to In providing by tion.” addition to judges, probation access offi agencies, cers and law enforcement by stating: the statute concludes legislative “The intent is that the relation of confidence between the probation probationer officer and or investigation defendant under shall remain inviolate.” legislative intent, pro view of the this vision should deny construed to access either a defendant or his presentence reports. People any report presentence and correct to see
able (1955), v. United States in it. Gadsden mistakes App (223 630); F2d v. 162, 165; DC Dye App (1967), Mich 219. people argue a that, absence of statute presentencing
granting re- counsel access to defense discretionary ports, with trial such access is judge and should continue to be the case be- this reports frequently cause contain confidential such psychiatric if material evaluations, which, or other might adversely seen affect defendant, rehabilitation. prac- judicial the fact that the notice of
We take reports among regard tice judges uniform. Some trial state is not this judges allow to examine the as a counsel judges, request, course; matter other deny report depending upon or access to the particular a case; the facts and circumstances in judges, policy, still a matter of fixed while other always deny access to the sentencing of a has been con who pled guilty a crime, critical victed, stage Mempa Rhay proceedings in the for him. (1967), (88 336); 389 US S 19 L Ed 2d Ct People Dye (1967), App The trial judge, judge trial the decision alone, makes length as to what shall his sentence be. The subject sentence is not review if within the limits penalty. (MCLA § [Stat the lawful 769.24 Ann 28.1094].)2 Rev *4 People (1879), 42 Mich 142, v. Cummins scope upon the restricted this Court commented 144, of review: Relating 2 Appellate (Approved Review Sentence Standards of 1968), Project on Minimum Stand- American Bar Association
Draft Justice, recommends that review of sentences should ards Criminal basis as review the same of conviction. be available on Mich 244 “The sentence was not of permitted excess hy and when statute, within the statute, this court has no supervisory control over punishment shall be inflicted. The statute a wide gives discre- tionary power to the trial court supposi- tion that it will be judicially exercised in view of all and facts circumstances appearing on the trial.” People Kelly (1894), 99 Mich 86; See also: Connor 348 Mich 463; (1957), Corrections, Parole Department Lane Board of 50, 60, (1970), problems arise out of have sentencing
been a matter of concern this Court over the past several years.3
Numerous legal articles have dealt specifically with of problem defendant’s access to presentence rep orts.4 Michigan The animal Judicial sponsored by Conference this Court following programs dealing held the policies: Acceptance 1970: of Sentencing (Panel Plea and Procedures Discussion); 1969: in Sentencing Disparity Problems Sentencing Report — — Moody, Jr., Survey Judges’ Sentencing (Hon. Blair Judge); Circuit Court Indigent 1968: Counsel for Pleas, Sentencing Defendants and Insanity (Panel Discussion); Procedures Sentencing Post-Sentencing 1965: (Address Procedures Hon. Skelly Wright, J. for the Judge, United States Court Columbia, Discussion); District and Panel 1961: Techniques Sentencing (Panel Demonstration Dis- —A cussion) ; Sentencing 1959: (Address by Persons Convicted of Crimes Hon. George Edwards, Justice, Michigan Supreme Court, and Discussion). Panel 4 See: Legal Kadish, Sentencing Norm and Discretion in the Police and Processes, 75 L (1962); Harv Rev 919-925 Guzman, Reports Access to Presentence in Federal Defendants’ Courts, 52 Iowa L (1966); Rev 161 Lorensen, Disclosure Virginia, Presentence in West (1967) ; W VaL Rev 159 Rubin, Privacy What Reports, Presentence Fed Prob (1952); Sharp, The Reports, Nature Presentence 5 Catholic Confidential (1955);
ULRev 127 *5 249 op Opinion the Court to the defendant and to the important It is vitally be the based of sentence justice ends de- The great majority information. accurate defendants, proba- For fendants those plead guilty. of time length tion or determination of the to be decisions prison significant be in are the only points One commentator out: made the judge. to would seem “Basic fairness to accused to rebut evidence opportunity same require him at at trial. The stakes sentencing as against at the justification as sentencing may just high, guilt at time of for than more, non-disclosure no Disclosure The Use and determination.” Lehrich, States, United 47 Reports in the Presentence 225, FRD 251 (1969). and printed obtained prosecutor In this case, appendix part people’s ar- Upon Richard Malkowski. oral Lee took defendant’s Court, before this gument contained two items exception only Defendants, Reports he Shown to Should Presentence Knowlton, (1956) j 409 NJ LJ 79 Defendants, he Shown 79 Should Presentence Gaulkin, (1956); 421 NJ LJ Investigation Report Preserved Parsons, The Must he Presentence Document, ; as a (1964) 28 Fed 3 Prob Confidential on Law Enforcement Administration President’s Commission Society Challenge (1967); The Crime in a Free Justice, 144, 145 and Administration President’s on Law Enforcement Commission Report: The (1967) ; TaslcForce Courts 20 Justice, Reports in the Lehrich, Presentence Use and Disclosure of States, United (1969); FRD 225 47 Reports, Confidentiality Albany 28 L Presentence Higgins, Rev (1964); 12 Judge’s Responsihility, 65 Wyzanski, A Freedom and L Trial Harv 1291, ; 1281, (1952) 1292 Rev Note, (1968); 81 L 835-843 Harv Rev Note, (1958) ; 58 Colum L 702 Rev Report: Thomsen, Confidentiality Middle A the Presentence Position, (1964); 28 8 Fed Prob Response Roche, ; (1965) Higgins, Albany L Rev Confidentiality Investi the Presentence Eoehe, Position gation Report, (1965). L Albany Rev 222-224 The first was the statement: “The defendant at tended school from his 5th to 17th year, * * *." claims have completed 11th grade (Emphasis added.) As to this it statement, was *6 argued that use of the word “claims” carries an unfair imputation which could have been overcome if defendant’s had had an attorney opportunity establish or whether not defendant definitely had completed the eleventh grade.
The second item was the statement: “The Police are opposed to item, As to this it was leniency.” claimed that it might have been softened if defend- ant’s had had attorney an opportunity to establish letters from by and teachers, others that employers should have leniency been shown defendant. An examination of the report, entire with together the fact that defendant was represented counsel at the time of and sentencing given was oppor tunity to make a statement on his own con behalf, vinces us that no useful result would be if achieved defendant’s sentence were vacated and the case remanded for the imposition of a new sentence. The denial of an opportunity to see the presentence report and to present additional facts and recom mendations on the two controversial items was not so prejudicial as to result a miscarriage jus tice. (MCLA 769.26; Ann Stat § 28.1096.)5 5 Sentencing procedures have been the concern of an American Bar project Association on Minimum Standards Criminal Justice relating to “Sentencing Alternatives and In Procedures.”* in 4.4(a) (b) Section and of the American Bar project Association on Minimum Standards relating “Sentencing Justice Procedures,” Alternatives and reads: “(a) Fundamental fairness requires to the defendant derogatory substance of all adversely information which his affects interests and which has not open otherwise been disclosed court should be called to the defendant, attorney attention of the his others who acting on his behalf. J. Opinion Black, Concurring Court affirmed.
The T. M. T. T. J., C. E. G. Kavanagh, Brennan, Kavanagh, Swainson JJ., concurred Williams, J. Adams, J. (concurring My disagree separately).
Black, ment with the majority is total. opinion Resting achieving a terests of presentence poses, by fair and uniform standard for the use of reports in State, pro the trial courts of this this Court rule, adopt project’s court the American Bar Association standards with modifications as herein set forth: fairness requires Fundamental to the defendant the sub- derogatory appearing any of all stance report information adversely which affects his interests and open otherwise been disclosed in shall court be called to the at- defendant, attorney, acting tention of behalf. and others on his court shall the defendant’s inspect presentence report. defendant to prose- shall extraordinary eases, cution also be shown the may except parts Court disclosure which are *7 proper sentence, diagnostic not relevant to a opinion might which seriously disrupt program a rehabilitation, of or of sources infor- promise mation which have been obtained on a confidentiality. of parts report In all eases where of the are not disclosed under such authority, the court shall state for the record the reasons for its the attorney action inform his that information has formation been excepting disclosed. The action of the court in- subject appellate disclosure shall be to review. respectfully that, pursuant The bench and bar are advised to GCR 1963, 933, day secretary has this the Court notified the the of State Michigan Bar of and the Court Administrator of the of intent the consider, adoption, Court to with a an view toward amendment of 1963, 785, by adding GCR provision a new to known 785.4, be as GCR reading as above set forth. “(b) This principle implemented by be requiring should that the attorney, court defendant’s the defendant attorney, inspect he prosecution himself if should also be shown the has no to report is if it shown to the defense. from In extraordinary cases, permitted except should to court be dis- parts report closure of proper which are not relevant to a sen- tence, diagnostic opinion might disrupt seriously program a rehabilitation, or sources of information which has been obtained promise on a confidentiality. parts all cases where are authority, required not disclosed under such the court should be to state for the record the reasons for its action and to inform the defendant and his The that information has not been disclosed. excepting action of the court information from disclosure subject appellate should be review.” Black, J. Concurring Opinion reasons, unreal wholly regard I what upon at retroactive ultimate in the pointed opinion con confidential necessary the regularly banning of presentence sentencing judges trol by repre Despite contrary them. received by that are way another yet provide it is sure to sentations may obtain still criminal professional which the more review,” “trial,” “appellate and still another can be releases there more when outright and still tunc as of “trial”; pro all nunc additional such no sentences respective dates of respective committed. felony or felonies dandling of this judicial Is there to no end accorded overflowing each been convicts, having review of of law process appellate due cup For I with the my part, judges stand several right? rulings the Court of whose successive upon what would negate today’s majority force harried effort people’s shackled enforce already I their against laws crime. stand also we letters forcefully restraining receiving al- most now —from daily veteran trial Their judges. experienced practically opposition today’s pro- new rule of ante posed (see Court footnote at p ought 251) persuade Justice every needed steadily cooperation law-abiding citizens, it is inherent as the principle present- and value ence effect of investigation, pro- declared posed Rule new gone 785.4 be wind. with the either now encouraged is, the criminal as he
With *8 technicalisms ever-mounting appellate these by release by longtime bail, courts are inventing providing few will care to risk his emboldened ire by promise (382 prospectivity Cole Mich Consider made Hampton 721) repudiation and its months later arrant (384 669). 1971] A. Wole, Walch Abner Inc. presentence information when the court’s officer re- quests Slowly surely, such information. but all law- learning- judicial system pro- abiders viding protection crime; them no must take prop- care of their themselves, lives, their erty, their all.
Adopting applying that which Division opinion, wrote to I conclude its would affirm. The adopted applied (25 conclusion thus reads Mich App 196): “As to the this ruled second, Court has before on availability presentence reports. of review of
People (1967), App People v. Camak 5 Mich 655; (1969), App Beard 17 Mich 409; v. Charles (1969), App Williams 544. Review of those right, is not of but within the sound discre tion of the trial court. Defendant shown an abuse of that discretion the instant case.”
ABNER A. WOLF, INC. WALCH Equity Judgment—Jury—Constitutional Equity — Ju- Law — risdiction. right duty of the trial court to hear and determine equity case to judgment, decretal any with or without advisory jury, is constitutionally and, sound law unlike the practice, Federal Michigan Supreme Court determines prop- erly Michigan under Constitution equity’s extent of jurisdiction, powers. duties and Reference for Points in Headnotes [1, seg_. et 27 Am Jur 2d, Equity