Buchea v. Sullivan

• Decision Date: 01 June 1972
• Citation: 497 P.2d 1169,262 Or. 222
• Parties: Joseph Marshall BUCHEA, Petitioner, v. G. E. SULLIVAN, Superintendent Oregon State Correctional Institution, Respondent.
• Court: Oregon Supreme Court

Page 1169

497 P.2d 1169

262 Or. 222

Joseph Marshall BUCHEA, Petitioner, v. G. E. SULLIVAN, Superintendent Oregon State Correctional Institution, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 6, 1971.

Decided June 1, 1972.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

James L. Carney, Asst. Atty. Gen., Salem, argued the cause for respondent.

HOLMAN, Justice.

Consideration of this case was taken on a petition for review from the denial of post-conviction relief by the Court of Appeals. Or.App., 92 Adv.Sh. 1501, 485 P.2d 1244 (1971). The petitioner pleaded guilty to attempted burglary in a dwelling. The trial judge ordered a presentence investigation report to be prepared for his consideration which the petitioner, through his attorney, requested permission to see prior to his being sentenced. The request was denied, and, thereafter, the trial judge sentenced petitioner to the maximum sentence authorized.

The sole question involved is whether a person who is convicted of a crime has a right under the Sixth ¹ and the Fourteenth ² Amendments to the United States Constitution and Article I, Section 11, ³ of the Oregon Constitution to see a presentence report considered by a judge in his determination of sentence. The trial court and the Court of Appeals held that such person does not.

ORS 137.080 provides for a summary hearing on aggravation or mitigation of punishment. ORS 137.090 then provides as follows:

'The circumstances which are alleged to justify aggravation or mitigation of the punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken out of court at such time and place, and upon such notice to the adverse party, and before such person authorized to take depositions, as the court directs. The court may consider the report of presentence investigation conducted by probation officers pursuant to ORS 137.530. ⁴ A copy of such report may be made available to counsel for the defendant and the state a reasonable time before pronouncement of sentence.' (Emphasized material was the subject of amendment by Oregon Laws 1965, ch. 400, § 1.)

The Minutes of the House and Senate Judiciary Committees of the 1965 Legislative Assembly and the recommendation of the Practice and Procedure Committee of the Oregon State Bar ⁵ disclose that the language of the amendment was used because some trial judges thought that they could not disclose Any information contained in the presentence report. The language was intended to make plain that trial courts could make information available, not that they had to make it available or be guilty of an abuse of discretion, as has been suggested. ⁶

The question of a defendant's right to be informed of the contents of his presentence investigation report has recently stimulated much debate. ⁷ The purpose of presentence investigations must be kept in mind as well as the arguments for and against the compulsory disclosure of such reports. The theory behind the use of presentence investigations is that the sentence should be individualized to the offender: it should fit him, not merely the crime. If criminal correction is intended to effect reformation and rehabilitation, as well as to provide protection to the public, the sentence should be tailored to the defendant's life history and personal characteristics.

The proponents of mandatory disclosure of the contents of the reports simply say that the intolerable possibility exists that without such disclosure a defendant will be required to serve an unjustifiably harsh sentence because he has no opportunity to learn of, or to rebut, inaccuracies in his presentence report. They argue that a procedure which permits such a possibility does not afford due process or effective representation by counsel. ⁸

The opponents of mandatory disclosure say that such disclosure would: (1) dry up the best sources of information because confidentiality could not be promised to relatives and intimates who are relied on to provide critical information about the defendant's life and character; (2) under some circumstances, endanger those who furnish information; (3) alienate defendant from family and close friends who have provided information and whose continued close relationship with defendant may be necessary to his rehabilitation; (4) make adjustment and treatment of the defendant more difficult than it otherwise would be because of the trauma generated by abrupt disclosure of the diagnoses of his mental and emotional conditions; (5) proliferate and unduly protract the sentencing process.

The Supreme Court of the United States has not directly decided if the United States Constitution requires disclosure of presentence information to a defendant or his lawyer. Moreover, its opinions which relate to the subject are somewhat difficult to reconcile.

In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the defendant pleaded guilty and was sentenced without benefit of counsel by a judge who was under the misapprehension that defendant had previously been found guilty of several crimes. The fact was that one of the charges mentioned by the judges as influencing his decision had been dismissed and the defendant had been found not guilty of two others. In holding that defendant had not received due process, the Court stated:

'We believe that on the record before us, it is evident that this uncounseled defendant was either overreached by the prosecution's submission of misinformation to the court or was prejudiced by the court's own misreading of the record. Counsel, had any been present, would have been under a duty to prevent the court from proceeding on such false assumptions and perhaps under a duty to seek remedy elsewhere if they persisted. Consequently, on this record we conclude that, while disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.' 334 U.S. at 740--741, 68 S.Ct. at 1255.

If a sentence based upon a false premise which the defendant has no opportunity to correct does not afford due process, an argument can be made that any procedure which has no safeguard against such an occurrence does not afford due process and that it is immaterial whether the misinformation came from a presentence investigation or from other sources. However, in assessing the impact of Townsend, it should not be overlooked that there were no countervailing public interests or values which would have been threatened by affording Townsend an opportunity to correct the judge's misapprehension about Townsend's prior criminal record.

A year later, the Court decided Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). A jury convicted Williams of first-degree murder and recommended life in prison. The judge, however, not being bound by the recommendation, sentenced Williams to death. The death sentence was imposed by reason of additional information concerning the defendant's background and character which was obtained by the judge from a presentence investigation. This information was recited by the judge at the time of sentence and no effort was made by the defendant or by his lawyer to refute it. The defendant contended that he was sentenced without constitutional due process because the sentence was based upon information which he had no opportunity to refute and which was supplied by witnesses whom he had no opportunity either to confront or to cross-examine. The Court held that the defendant was not deprived of due process and that different evidentiary rules applied during trial than at sentencing. Mr. Justice Black stated for the Court:

'In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction.

In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.' 337 U.S. at 246--247, 69 S.Ct. at 1083.

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'* * * We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant...