State v. Greve, 02-2332-CR.

• Decision Date: 10 June 2004
• Docket Number: No. 02-2332-CR.,02-2332-CR.
• Citation: 272 Wis.2d 444,2004 WI 69,681 N.W.2d 479
• Parties: State of Wisconsin, Plaintiff-Appellant, v. Thomas A. Greve, Defendant-Respondent.
• Court: Wisconsin Supreme Court

272 Wis.2d 444

2004 WI 69

681 N.W.2d 479

State of Wisconsin, Plaintiff-Appellant, v. Thomas A. Greve, Defendant-Respondent.

No. 02-2332-CR.

Supreme Court of Wisconsin.

Oral argument November 5, 2003.

Decided June 10, 2004.

For the plaintiff-appellant the cause was argued by Shunette T. Campbell, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-respondent there was a brief by Jeffrey J. De La Rosa and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Jeffrey De La Rosa.

¶ 1. PATIENCE D. ROGGENSACK, J.

This case is before us on certification from the court of appeals. The three certified questions arise from an interlocutory appeal filed by the State pursuant to Wis. Stat. § 974.05(1)(d)2 and 3 (2001-02),¹ due to an order of the Walworth County Circuit Court, Michael S. Gibbs presiding, denying the State's motion to admit portions of defendant Thomas A. Greve's sentencing memorandum² into evidence at trial. The certified questions are:

(1) Whether State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), construing Wis. Stat. § 972.15 as limiting the use of a court-ordered presentence investigation report (PSI) to postconviction settings, also applies to a defendant's sentencing memorandum.

(2) Whether a defendant's constitutional right to due process is violated when his sentencing memorandum is used in a subsequent criminal trial.

(3) Whether a defendant's sentencing memorandum should be kept confidential, as a matter of public policy.

¶ 2. The majority opinion concludes that neither Wis. Stat. § 972.15 nor our decision in Crowell applies to a defendant's sentencing memorandum. A plurality of the court concludes that a defendant's constitutional right to due process will not be violated by use of his or her sentencing memorandum in a subsequent criminal trial;³ and the majority concludes that public policy considerations do not support extending a confidentiality requirement to a defendant's sentencing memorandum.

I. BACKGROUND

¶ 3. The State, by amended information, charged Thomas A. Greve with two counts of first-degree sexual assault of a child as a persistent repeater.⁴ Greve later pled guilty to a single charge of first-degree sexual assault of a child, but without the persistent repeater enhancement. In preparation for sentencing, Greve filed a sentencing memorandum, prepared by a clinical social worker, in which he is quoted as making incriminating statements about the crime of which he was convicted.

¶ 4. The circuit court imposed a 40-year sentence, consisting of a 25-year term of confinement followed by a 15-year period of extended supervision. However, the court of appeals reversed Greve's conviction, based on improper involvement of a substituted judge in the circuit court proceeding, and remanded the case for further proceedings.

¶ 5. On remand, the State filed a motion in limine, requesting to use the incriminating portions of Greve's sentencing memorandum at a subsequent trial. The circuit court denied the motion, concluding that Wis. Stat. § 972.15 and Crowell prohibit use of Greve's sentencing memorandum at a subsequent trial. The State appealed, and the court of appeals certified the three questions set out above.⁵ We accepted certification.

II. DISCUSSION

A. Standard of Review

¶ 6. This case requires us to interpret Wis. Stat. § 972.15. The interpretation of a statute is a question of law that we review de novo. State v. T.J. Int'l, Inc., 2001 WI 76, ¶ 20, 244 Wis. 2d 481, 628 N.W.2d 774; State ex. rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729 (1997)

; Stockbridge Sch. Dist. v. Department of Pub. Instruction Sch. Dist. Boundary Appeal Bd., 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996).

¶ 7. We are also required to apply constitutional principles to a set of facts. That too presents a question of law that we review de novo. State v. A.S., 2001 WI 48, ¶ 19, 243 Wis. 2d 173, 626 N.W.2d 712; State v. Pallone, 2000 WI 77, ¶¶ 26-27, 236 Wis. 2d 162, 613 N.W.2d 568; State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 552.

B. Sentencing Background

¶ 8. In order to explain our answers to the questions presented, we first review relevant general principles. At sentencing, the circuit court has a dual responsibility: to the person it is about to sentence and to the public that the criminal laws protect. State v. Heffran, 129 Wis. 2d 156, 163, 384 N.W.2d 351 (1986); Neely v. State, 47 Wis. 2d 330, 334, 177 N.W.2d 79 (1970); State v. Perez, 170 Wis. 2d 130, 140, 487 N.W.2d 630 (Ct. App. 1992); State v. Knapp, 111 Wis. 2d 380, 384-85, 330 N.W.2d 242 (Ct. App. 1983). In order to meet its responsibility, the circuit court accepts information about the defendant, his or her personality, social circumstances and general patterns of behavior to aid it in rendering "an intelligent and informed judgment regarding the appropriate penalty under the circumstances." Heffran, 129 Wis. 2d at 163-64; see also Knapp, 111 Wis. 2d at 385

(noting that "[h]ighly relevant, if not essential, to [the court's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics"); Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (stating that "[i]t is well settled that all information relevant to sentencing should be brought to the attention of the trial judge"). Moreover, "the entire sentencing process is to be a search for the truth and an evaluation of alternatives." Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971); see also State v. McQuay, 154 Wis. 2d 116, 130, 452 N.W.2d 377 (1990).

¶ 9. A PSI is one "means through which the sentencing court receives information" about a defendant, Heffran, 129 Wis. 2d at 163-64, and it is "intended to assist the sentencing court in determining the kind and extent of punishment to be imposed in the particular case." Id. at 163 (citation omitted). See also Wis. Admin. Code § DOC 328.27 (Mar., 2004) (stating the "primary purpose of the presentence investigation report is to provide the sentencing court with accurate and relevant information upon which to base its sentencing decision"); Crowell, 149 Wis. 2d at 868 (explaining that a PSI is prepared to provide the sentencing court with "a reliable information base" in order to assist it in reaching "rational and consistent sentencing").

¶ 10. Wisconsin Stat. § 972.15 provides that, after a felony conviction, the court "may" order a presentence investigation prepared by the department of corrections. Section 972.15(1). However, a PSI is not required prior to sentencing. Bruneau v. State, 77 Wis. 2d 166, 174, 252 N.W.2d 347 (1977) (stating that a PSI is not constitutionally or statutorily required) (citing Weatherall v. State, 73 Wis. 2d 22, 242 N.W.2d 220 (1976) and Sprang v. State, 63 Wis. 2d 679, 218 N.W.2d 304 (1974)). The recommendations in a PSI are not binding on the court. McQuay, 154 Wis. 2d at 131. PSIs, ordered pursuant to § 972.15(1), are prepared by department of corrections staff. Wis. Admin. Code § DOC 328.27(2). The staff member acts on behalf of an independent judiciary, and does not act as an agent of the State. McQuay, 154 Wis. 2d at 133. In order to be reliable, the PSI must be prepared by one who is neutral and independent of both the prosecution and the defense. Perez, 170 Wis. 2d at 140-41.

¶ 11. All court-ordered PSIs contain the same categories of information. Wis. Admin. Code § DOC 328.27. They are required to review the defendant's present offense, prior criminal record, prior correctional institution record, victim's statement, family information and personal history. Id. at (3)(a). A PSI "shall contain information about the offender's present situation," including any pending charges. Id. at (3)(b). It "shall ... include[]" the writer's recommendation for sentencing and the reasoning supportive of that recommendation, unless the court has otherwise stated, id. at (3)(c), and a tentative corrections plan, unless waived by the staff member's supervisor. Id. at (3)(d). The defendant has a right to challenge any statement in the PSI that he or she believes is inaccurate or incomplete. State v. Watson, 227 Wis. 2d 167, 194, 595 N.W.2d 403 (1999).

¶ 12. In recent years, some defense counsel have submitted sentencing memoranda prior to sentencing. Those memoranda are similar in content to court-ordered PSIs. Marcia G. Shein, Sentencing Defense Manual: Advocacy/Practice/Procedure, § 4.2, 4-7 (West Group 1998). However, a defendant's sentencing memoranda has no prescribed format or requisite inclusions, and it is prepared by a person advocating on behalf of the defendant. See John L. Carroll, The Defense Lawyer's Role in the Sentencing Process: You've Got to Accentuate the Positive and Eliminate the Negative, 37 Mercer L. Rev. 981, 1000-01 (1986) [hereinafter The Defense Lawyer's Role in the Sentencing Process].

C. Greve's and the State's Positions

¶ 13. Greve contends that the contents of his sentencing memorandum cannot be used in a subsequent trial. In order to prevail, he must establish either a statutory or a constitutional right that precludes the use of his statements. Greve raises both theories. He contends that Wis. Stat. § 972.15 is the statutory basis because in Crowell we concluded that a PSI prepared under § 972.15 could not be used in a trial subsequent to Crowell's plea withdrawal. Greve argues that because we concluded in Crowell that § 972.15 prevents the subsequent use of a court-ordered PSI, and a defendant's sentencing memorandum serves the same purpose as a court-ordered PSI, § 972.15 protects his sentencing memorandum too. The State argues that both the statute and Crowell apply only to court-ordered PSIs.

¶ 14. To support his constitutional argument, Greve contends that at sentencing, a defendant has a due process right: (1) to be sentenced on the...