State v. Lipsky

• Decision Date: 26 February 1980
• Docket Number: No. 16389,16389
• Citation: 608 P.2d 1241
• Parties: STATE of Utah, Plaintiff and Respondent, v. Leonard LIPSKY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1241

608 P.2d 1241

STATE of Utah, Plaintiff and Respondent, v. Leonard LIPSKY, Defendant and Appellant.

No. 16389.

Supreme Court of Utah.

Feb. 26, 1980.

Sheldon R. Carter, Provo, for defendant and appellant.

Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

Defendant Lipsky appeals from a judgment entered against him for committing aggravated assault in violation of § 76-5-103(1)(b). ¹ The only issue on appeal is whether the defendant at the time of his sentencing was unlawfully denied access to the pre-sentence report.

The defendant entered a plea of guilty to aggravated assault. The trial court, at the defendant's request, ordered a pre-sentence investigation and report from the Adult Probation and Parole Department. The defendant filed a motion for disclosure of the report submitted. When the defendant appeared for sentencing, the trial judge, referring to the defendant's motion, indicated that he had instructed Adult Probation and Parole to turn over to the defendant "any derogatory information that was in the file." Defense counsel stated that he had not received any information. The court then verbally summarized the contents of the report.

Defense counsel requested that the court commit the defendant to a treatment facility instead of the State Prison. The court delayed sentencing and ordered a ninety-day diagnostic evaluation and report pursuant to § 76-3-404. Upon completion of that report, the defendant reappeared for sentencing, at which time the court denied defense counsel's request that the defendant be placed in the State Hospital. The court then sentenced the defendant to a term in the Utah State Prison not to exceed five years and ordered him to pay $100 in restitution to the victim of the assault. The defendant does not challenge the accuracy of the pre-sentence report.

There is no specific statutory provision in Utah law dealing with pre-sentence reports. Section 76-3-404, which authorizes a trial court to order a ninety-day psychiatric evaluation and report for the purpose of assisting in sentencing in felony cases, refers in passing to the kind of pre-sentence report which is the subject matter of this appeal. ² However, a psychiatric report prepared pursuant to § 76-3-404 is different from a pre-sentence report. Clearly, a defendant is entitled to receive a copy of the psychiatric report. Section 76-3-404 mandates that a copy of the diagnostic valuation be given to "the court, prosecutor and the defendant or his attorney."

This Court has several times addressed the issue of a defendant's right to receive a copy of his pre-sentence report. In each case this Court has held disclosure to be subject to the discretion of the trial court. The leading case is State v. Cunico, 23 Utah 2d 325, 462 P.2d 720 (1969). ³ The defendant in Cunico contended that §§ 77-35-12 and 77-35-13 require that when a trial court has discretion as to the extent of punishment, the court may consider any circumstances either in aggravation or mitigation of the punishment and that the evidence in aggravation or mitigation of the punishment may be presented to the court only by the testimony of witnesses in open court. Sections 77-35-12 and 77-35-13 read as follows:

77-35-12. When discretion is conferred upon the court as to the extent of punishment, the court, at the time of pronouncing judgment, may take into consideration any circumstances, either in aggravation or mitigation of the punishment, which may then be presented to it by either party.

77-35-13. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so ill or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, shall be offered to or received by the court or a judge thereof in aggravation or mitigation of the punishment, except as provided in this section.

Cunico declined to adopt the defendant's argument, holding that where the law specifies the sentence which must be pronounced, i. e., an indeterminate sentence, the trial court does not have discretion as to the extent of punishment. Under this rationale, it is the Board of Pardons that has the discretion to determine the extent of punishment. The conclusion was reached that the trial court is free to take into consideration materials other than those presented by the testimony of witnesses in open court for the purpose of sentencing.

State v. Doremus, 29 Utah 2d 373, 510 P.2d 529 (1973), followed Cunico and held that disclosure of a pre-sentence report is within the discretion of the trial court. Accord, State v. Dowell, 30 Utah 2d 323, 517 P.2d 1016 (1974); Reddish v. Smith, Utah,

576 P.2d 859 (1978). See also State v. Harris, Utah, 585 P.2d 450 (1978). ⁴

However, in Reddish v. Smith, supra, the Court divided over the issue of whether the trial court has discretion in imposing punishment and on the applicability of §§ 77-35-12 and 77-35-13 to pre-sentence reports. Justices Maughan and Wilkins expressed the view that the trial court has substantial discretion in sentencing and that those two provisions therefore apply and require disclosure of the pre-sentence report. See also State v. Harris, supra, and the separate opinion by Justice Wilkins, concurred in by Justice Maughan.

Although it is true that a trial court has no discretion in sentencing a defendant to a certain number of years in prison under Utah's indeterminate sentencing laws, it is hardly contestable that, from a broader viewpoint, the court in fact has very wide discretion in sentencing. A court may sentence a defendant to a prison term, impose a fine, enter judgment for a lower category of offense pursuant to § 76-3-402, place him on probation, disqualify him from public or private office pursuant to § 76-3-201, sentence the defendant to serve prison terms concurrently or consecutively, order the defendant to pay restitution, or suspend a prison sentence. As pointed out in the dissent of Justice Wilkins in Reddish v. Smith, supra, this wide variety of alternatives not only permits, but absolutely requires, the exercise of discretion.

However, it does not follow that § 77-35-13 encompasses the pre-sentence report. On the contrary, we hold, for the reasons discussed below, that the trial court may receive information concerning the defendant in the form of a pre-sentence report without the author of the report necessarily personally appearing and testifying in open court, as would be required by § 77-35-13, but that the report should be disclosed to the defendant. If the defendant thinks the report inaccurate, he should then have the opportunity to bring such inaccuracies to the court's attention.

Section 77-35-13 was enacted in 1888 and has remained unchanged since the days of its inception. See 2 Comp.Utah Laws 1888, § 5112. Subsequently, in 1923 the Legislature enacted § 77-35-17 which provides, inter alia, for probation, ⁵ and in 1953 § 76-3-404 was enacted which provides for the psychiatric diagnostic evaluation and report. According to § 77-35-17, the sentencing judge may receive information concerning the status of a probationer through a "report of the probation agent in charge of the defendant, or otherwise . . .," and § 76-3-404 authorizes the trial judge to receive a written report of the ninety-day diagnostic evaluation. Neither § 77-35-17 nor § 76-3-404 indicates that the Legislature intended that the probation report or the ninety-day diagnostic evaluation be presented to the sentencing court "by the testimony of witnesses examined in open court" pursuant to § 77-35-13.

Utah is not alone in having a statutory scheme with no express legislative guidance as to whether pre-sentence or probation reports should be disclosed to the defendant. The Supreme Court of Oregon faced a situation nearly identical to the instant case in State v. Scott, 237 Or. 390, 390 P.2d 328 (1964). As in the case at hand, a trial court having discretion as to the extent of punishment was precluded by Oregon state law from receiving evidence in mitigation or aggravation other than according to statutory provisions substantially similar to §§ 77-35-12 and 77-35-13. ⁶ However, the Oregon Legislature had enacted a later statute providing for a report to the trial court by probation officers. In Scott, the court held that the later statute, pertaining to the probation officers' reports, amended by implication the earlier statute which stated that all aggravating and mitigating evidence had to be received by the Court according to its terms. Therefore, the court held that Oregon's statutes limiting the evidence considered by a court for sentencing purposes to testimony of witnesses in open court did not control pre-sentence reports. The court stated:

It is obvious that the later statute, ORS 137.530, amended by implication ORS 137.110. Amendment of statutes by implication is recognized when the matter is clear. State ex rel. Medford Pear Co. v. Fowler, 207 Or. 182, 195, 295 P.2d 167 (1956). The information the probation officer is directed to obtain by ORS 137.530 is information which can be in aggravation or mitigation. The statutes now authorize the presentation of such information in two ways: by testimony in open court or by the presentence report. The latter is at the sentencing court's discretion. (390 P.2d at 331-32.)

California also has a statute like Utah's which was construed in People v. Giles, 70 Cal.App.2d Supp. 872, 161 P.2d 623 (1945). Section 1204 of the California Penal Code, referring to circumstances which may either aggravate or mitigate the punishment, states:

The circumstances must be presented by the testimony of witnesses examined in open Court . . .. No affidavit or...