People v. Malkowski

• Decision Date: 07 July 1971
• Docket Number: No. 20,A,20
• Citation: 188 N.W.2d 559,385 Mich. 244
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Richard MALKOWSKI, a/k/a Lee Richard Decair, Defendant-Appellant. pril Term.
• Court: Michigan Supreme Court

Page 559

188 N.W.2d 559

385 Mich. 244

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Richard MALKOWSKI, a/k/a Lee Richard Decair, Defendant-Appellant.

No. 20, April Term.

Supreme Court of Michigan.

July 7, 1971.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Arthur N. Bishop, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Defenders' Office, Legal Aid and Defender Assn. of Detroit by Arthur J. Tarnow, Detroit, for defendant-appellant.

Before the Entire Bench.

ADAMS, Justice.

Defendant Lee Malkowski plead guilty to unlawfully driving away an automobile on April 8, 1969. Two days later he was sentenced to from 2 to 5 years in prison. Defendant's attorney asked to see the presentence report before sentencing and again at the sentencing. The trial judge, in denying the request to see the report, commented that '* * * the statute which authorizes these reports also requires the confidentiality of these reports for the purposes that they are prepared and used and delivered to the court in connection with the sentences.' A requirement of confidentiality does not appear on the face of the statute authorizing presentence reports. (M.C.L.A. § 771.14; Stat.Ann.1954 Rev. § 28.1144). ¹

Defendant appealed. The Court of Appeals affirmed. (25 Mich.App. 195, 181 N.W.2d 6). We granted leave to appeal 'limited to the sole issue of failing to allow defendant's counsel to examine the presentence report.' (383 Mich. 818).

Defendant argues that if the right to counsel at sentencing is to have any value, counsel must be able to see the presentence report and correct any mistakes in it. Gadsden v. United States, 96 U.S.App.D.C. 162, 165;223 F.2d 627, 630 (1955); People v. Dye, 6 Mich.App. 217, 219, 148 N.W.2d 501 (1967).

The people argue that, in the absence of a statute granting defense counsel access to presentencing reports, such access is discretionary with the trial judge and this should continue to be the case because such reports frequently contain confidential psychiatric evaluations, or other material which, if seen by defendant, might adversely affect his rehabilitation.

We take judicial notice of the fact that the practice with regard to presentence reports among the trial judges of this State is not uniform. Some judges allow counsel to examine the report as a matter of course; other judges, upon request, will permit or deny access to the report depending upon the facts and circumstances in a particular case; while still other judges, as a matter of fixed policy, always deny access to the report.

The sentencing of a defendant who has been convicted, or has plead guilty to a crime, is a critical stage in the proceedings for him. Mempa v. Rhay, 389 U.S. 128; 88 S.Ct. 254; 19 L.Ed.2d 336 (1967); People v. Dye, 6 Mich.App. 217, 148 N.W.2d 501 (1967). The trial judge, and the trial judge alone, makes the decision as to what his sentence shall be. The length of sentence is not subject to review if within the limits of the lawful penalty. (M.C.L.A. § 769.24; Stat.Ann.1954 Rev. § 28.1094). ²

In Cummins v. People, 42 Mich. 142, 144, 3 N.W. 305 (1879), this Court commented upon the restricted scope of review:

'The sentence was not in excess of that permitted by statute, and when within the statute this court has no supervising control over the punishment that shall be inflicted. The statute gives a wide discretionary power to the trial court, upon the supposition that it will be judicially exercised in view of all the facts and circumstances appearing on the trial.'

See also: People v. Kelly, 99 Mich. 82, 86, 57 N.W. 1090 (1894); People v. Connor, 348 Mich. 456, 463, 83 N.W.2d 315 (1957); and Lane v. Parole Board, 383 Mich. 50, 60--61, 173 N.W.2d 209 (1970).

The problems which arise out of sentencing have been a matter of concern by this Court over the past several years. ³

Numerous legal articles have dealt specifically with the problem of a defendant's access to presentence reports. ⁴

It is vitally important to the defendant and to the ends of justice that the sentence be based upon accurate information. The great majority of defendants plead guilty. For those defendants, probation or determination of the length of time they will be in prison are the only significant decisions to be made by the Judge. One commentator points out:

'Basic fairness to the accused would seem to require the same opportunity to rebut evidence against him at sentencing as at trial. The stakes at sentencing may be just as high, and the justification for non-disclosure no more, than at the time of guilt determination.' Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225, 251 (1969).

In this case, the prosecutor obtained and printed as a part of the People's Appendix the presentence report for Lee Richard Malkowski. Upon oral argument before this Court, defendant's attorney took exception to only two items contained in the report.

The first was the statement: 'The defendant attended school from his 5th to his 17th year, and Claims to have completed the 11th grade * * *.' (Emphasis added.) As to this statement, it was argued that the use of the word 'claims' carries an unfair imputation which could have been overcome if defendant's attorney had had an opportunity to establish definitely whether or not defendant had completed the eleventh grade.

The second item was the statement: 'The Police are opposed to liniency.' As to this item, it was claimed that it might have been softened if defendant's attorney had had an opportunity to establish by letters from teachers, employers and others that leniency should have been shown befendant.

An examination of the entire report, together with the fact that defendant was represented by counsel at the time of sentencing and was given an opportunity to make a statement on his own behalf, convinces us that no useful result would be achieved if defendant's sentence were to be 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 recommendations on the two controversial items was not so prejudicial as to result in a miscarriage of justice. (M.C.L.A. § 769.26; Stat.Ann. § 28.1096). ⁵

The Court of Appeals is affirmed.

T. M. KAVANAGH, C.J., and BRENNAN, T. G. KAVANAGH, SWAINSON and WILLIAMS, JJ., concurred with ADAMS, J.

BLACK, Justice (concurring separately).

My disagrement with the majority opinion is total. Resting upon what I regard as wholly unreal reasons, that opinion is pointed in the ultimate at retroactive banning of the regularly necessary confidential control by sentencing judges of presentence reports that are received by them. Despite contrary representations it is sure to provide yet another way by which the professional criminal may obtain still another 'trial,' and still more 'appellate review,' and still more outright releases when there can be no such additional 'trial'; all Nunc pro tunc as of the respective dates of his respective sentences for felony or felonies committed.*

Is there to be no end of this judicial dandling of convicts, each having been accorded an overflowing cup of due process of law and appellate reviewof right? For my part, I stand with the several judges of the Court of Appeals whose successive rulings negate what today's majority would force upon a harried People's already shackled effort to enforce their laws against crime. I stand also with the forcefully restraining letters we are receiving almost daily now--from veteran trial judges. Their practically experienced opposition to today's proposed new rule of Court (see footnote 5, ante at 562) ought to persuade every Justice that the steadily needed cooperation of law-abiding citizens, inherent as it is in the principle and value of presentence investigation, will upon declared effect of proposed new Rule 785.4, be gone with the wind.

With the criminal encouraged as he now is, either by these ever-mounting technicalisms appellate courts are inventing or by longtime release on bail, few will care to risk his emboldened ire by providing presentence information when the court's officer requests such information. Slowly but surely, all law-abiders are learning that the judicial system is providing for them no protection from crime; that they must take care of themselves, their lives, their property, their all.

Adopting and applying that which Division 1 wrote to conclude its opinion, I would affirm. The conclusion thus adopted and applied reads (25 Mich.App. 195, 196, 181 N.W.2d 6, 7):

'As to the second, this Court has ruled before on the availability of review of presentence reports. People v. Camak (1967), 5 Mich.App. 655, 147 N.W.2d 746; People v. Beard (1969), 17 Mich.App. 409, 169 N.W.2d 509; People v. Williams (1969), 19 Mich.App. 544, 172 N.W.2d 897. Review of those reports is not of right, but within the sound discretion of the trial court. Defendant has not shown an abuse of that discretion in the instant case.'

1 M.C.L.A. § 791.229 (Stat.Ann.1954 Rev. § 28.2299), provides that reports of investigations by probation officers are 'declared to be privileged or confidential communications not open to public inspection.' In addition to providing for access by judges, probation officers and law enforcement agencies, the statute concludes by stating: 'The legislative intent is that the relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.' In view of the legislative intent, this provision should not be construed to deny access by either a defendant or his attorney to presentence reports.

2 Standards Relating to Appellate Review of Sentence (Approved Draft 1968), American Bar Association Project on Minimum Standards for Criminal Justice, recommends that review of sentences should be available on the same basis as review of...