State, ex rel. Russell v. Jones

• Citation: 647 P.2d 904,293 Or. 312
• Parties: STATE of Oregon, ex rel. Kenneth Kollman RUSSELL, Plaintiff-Relator, v. The Honorable Robert E. JONES, Chief Criminal Circuit Court Judge of the FourthJudicial District of the State of Oregon, Defendant. SC 28198. *
• Decision Date: 30 June 1982
• Court: Supreme Court of Oregon

Page 904

647 P.2d 904

293 Or. 312

STATE of Oregon, ex rel. Kenneth Kollman RUSSELL, Plaintiff-Relator, v. The Honorable Robert E. JONES, Chief Criminal Circuit Court Judge of the FourthJudicial District of the State of Oregon, Defendant.

SC 28198.

Supreme Court of Oregon, In Banc ^*.

Argued and Submitted Dec. 8, 1981.

Decided June 30, 1982.

Lawrence Baron, Metropolitan Public Defender, Portland, argued the cause for plaintiff-relator. With him on the brief were Gail Baron, Christopher Cournoyer, Mark Kramer, and Kenneth Lerner, Metropolitan Public Defenders, Portland.

James E. Mountain, Jr., Deputy Sol. Gen., Salem, argued the cause for defendant. With him on the brief were David B. Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

TANZER, Justice.

This is a proceeding in mandamus. We take the facts from the alternative writ and supporting documents. Plaintiff is the defendant in an underlying criminal prosecution. (Hereafter he is referred to as "defendant.") He entered a no contest plea to a felony charge of sexual abuse in the first degree. Apparently a presentence investigation was ordered to be performed by the Multnomah County Diagnostic Center. That agency requested the defendant to appear for interviews, including a psychological interview, but refused as a matter of practice to permit the defendant's attorney to attend the interviews. Defendant then moved to allow his attorney to attend the interviews. The motion was denied by the circuit judge, the successor of whom is defendant in this proceeding. The court stated its reasoning:

"I recall very well, Mr. Baron (defense counsel), that I accepted the plea of no contest with reluctance, and only after the importuning of yourself regarding the unique circumstances of this crime and your client's attitude towards the criminal justice system. The thrust of your argument is not so much to urge the necessity of legal counsel as a legal advisor but that this man needs someone with whom he trusts and would feel more comfortable and ask that you be there. You have not made any argument, at least convincing me, that your legal services are necessary."

The trial court concluded that because there was no need for legal services, due process did not require the presence of counsel. The writ would require that the order of denial be vacated and that the trial court allow defense counsel to be present at presentence interviews.

Defendant asserts three constitutional bases for a right to the presence of his attorney at the presentence investigation interviews. His first contention is under the right to counsel provisions of Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. Second, he asserts a right to the presence of counsel as ancillary to his right not to be compelled to testify against himself in any criminal prosecution, rights guaranteed under Article I, section 12, of the Oregon Constitution, and under the Fifth Amendment to the United States Constitution. His third contention is that, under the circumstances of this case, "fundamental fairness," as embodied by the Due Process Clause of the Fourteenth Amendment, mandates the presence of his attorney to insure his right to a fair trial. Finally, the defendant contends that the trial court abused its discretion in denying the defendant's motion to have counsel present at the presentence interview. We issued the alternative writ of mandamus to consider whether criminal defendants have a right to have counsel attend the presentence interviews.

Article I, section 11, states that the accused shall have the right "to be heard by himself and counsel" in "all criminal prosecutions." The term "criminal prosecution" includes sentencing, a stage at which a judicial decision affecting a defendant's future liberty is made. Obviously, then, a defendant is entitled "to be heard by himself and counsel" at sentencing. A short answer, therefore, is that counsel cannot be excluded from any stage of the criminal prosecution at which a defendant is to be "heard," including the sentencing stage, whether this is wholly performed by the judge or shared with non-judicial persons.

Beyond this short answer, we have the benefit of decisions of the United States Supreme Court under the Sixth Amendment, which, as is demonstrated by the excellent historical review in the dissent, was intended to assure similar protection to that stated in Article I, section 11. Under those decision, insofar as they affect this case, a criminal defendant's guarantee of the assistance of counsel exists at least at all court proceedings from arraignment through probation revocation as well as all post-indictment out-of-court critical stages where, without the assistance of counsel, the legal interests of the defendant might be prejudiced. Specifically, sentencing is a critical stage of a criminal prosecution at which a defendant is guaranteed counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Gebhart v. Gladden, 243 Or. 145, 412 P.2d 29 (1966). We agree with the dissenters as to the nature of those principles, but our application of them differs from that of the dissent because of our different view of the nature of a presentence investigation, to which we now turn.

Before pronouncing sentence, a trial court will wish to be informed of such relevant information as the circumstances of the offense and the criminal record, social history and present condition and environment of the defendant. Before presentence reports were common, this information was generally provided at the sentencing hearing by the prosecutor, the defendant, defense counsel and other sources. Today, ORS 137.530 provides an alternative method of gathering such information. Instead of the court doing so directly, it may direct probation officers to perform the initial task on behalf of the court, and to report back to the court:

"Probation officers, when directed by the court, shall fully investigate and report to the court in writing on the circumstances of the offense, criminal record, social history and present condition and environment of any defendant; and unless the court directs otherwise in individual cases, no defendant shall be placed on probation until the report of such investigation has been presented to and considered by the court. Whenever desirable, and facilities exist therefor, such investigation shall include physical and mental examinations of such defendants." ORS 137.530.

The court may also designate a person other than a probation officer to conduct the investigation. ORS 137.090.

Defendant alleges that the presentence investigator, the diagnostic center, "told (him) to report for a psychological interview" as well as for a "general interview." Defendant does not dispute that the authority of the court to designate one other than a probation officer to make a presentence investigation, ORS 137.090, includes authority to designate the diagnostic center and that an interviewer may be a psychologist as well as anyone else.

A judge's election to gather sentencing information through the agency of a probation officer or another makes the process no less a judicial procedure than when the judge does so directly. The investigation is simply an out-of-court inquiry and hearing on behalf of the judge. When the information has been gathered for the judge, the information in the report may be challenged and supplemented at the sentencing hearing. The information in the presentence report, other than certain diagnostic or confidential reports, may be disclosed to the state and the defendant, ORS 137.079, see also, Buchea v. Sullivan, 262 Or. 222, 497 P.2d 1169 (1972), and either party may complete the fact-gathering by offering evidence in aggravation or mitigation, ORS 137.080-137.100. ¹ In other words, the investigator informally performs for the judge a function, in part, which would otherwise be performed by the judge as part of the formal sentencing hearing. Functionally, the investigation is a part of the sentencing procedure.

A defendant is entitled to the assistance of counsel to the same degree when the judge seeks sentencing information from him in open court and when the judge does so indirectly through the out-of-court agency of a probation officer. Therefore we conclude that just as a sentencing hearing to determine a defendant's future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is a presentence interview. The order barring counsel was unauthorized.

We do not suggest that every defense attorney is duty bound to accompany his or her client at the probation office. Often, little purpose would be served by the presence of counsel at a presentence interview and a conscientious defense attorney would not necessarily feel obliged to attend to protect his client's interests. After guilt is no longer in issue, the inquiry is into defendant's background, present situation and attitude. At the hearing, the report of information given by the defendant is subject to disclosure and defense counsel can make objections and present evidence and additional statements by defendant. Given these procedural opportunities, rarely would there be risk of irremediable harm from the absence of counsel at the presentence interview. Yet, circumstances are conceivable where the presence of counsel would be helpful. We do not hold that the presence of counsel is required at every presentence interview or that his absence would constitute ineffective assistance of counsel. Rather, we hold only that Article I, section 11, and the Sixth Amendment require that counsel may not be barred from attendance at a presentence interview.

Defendant's contentions under the self-incrimination provisions of Article I, section 12, and the Fifth Amendment, if material at all, are premature. Other than ORS 137.100, discussed below, we find no...