State v. Raybould

• Decision Date: 03 November 1971
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Raybould, 489 P.2d 1222, 15 Ariz.App. 520 (Ariz. App. 1971)
• Parties: The STATE of Arizona, Appellee, v. William RAYBOULD, Appellant. 261.
• Writing for the Court: PER CURIAM
• Court: Arizona Court of Appeals

Page 1222

489 P.2d 1222

15 Ariz.App. 520

The STATE of Arizona, Appellee, v. William RAYBOULD, Appellant.

No. 2 CA-CR 261.

Court of Appeals of Arizona, Division 2.

Nov. 3, 1971.

As Amended on Denial of Rehearing Dec. 10, 1971.

Gary K. Nelson, Atty. Gen., by Jerry C. Schmidt, Asst. Atty. Gen., Tucson, Richard J. Riley, Cochise County Atty., Bisbee, for appellee.

Richard A. Winkler, Douglas, for appellant.

PER CURIAM.

Appellee has filed a motion for a rehearing of our decision ordering reduction of appellant's sentence from the four to eight years in the Arizona State Prison imposed by the trial judge to a sentence of from one to two years in the Arizona State Prison. Our examination of the motion for rehearing has convinced us that the sentence should not be reduced and we have granted the motion.

Although an appellate court has power under A.R.S. § 13--1717 to review the sentence imposed by the trial court, such review is meaningless if the court does not have before it the presentence report which the judge used in determining the sentence. The power of review of sentences cannot be intelligently exercised by this court by reading that meager part of the record which we usually have on the issue of excessiveness.

Appellee has on its motion for rehearing attached a copy of the presentence report of the probation officer which the trial judge used in his sentencing. ¹ How does one make the presentence report a part of the record on appeal in the face of the case law that has been established in this state? In State v. Nelson, 104 Ariz. 52, 448 P.2d 402 (1968), our Supreme Court held that the divulging of the presentence report was within the Discretion of the trial judge. This decision was followed in State v. Scanlon, 104 Ariz. 187, 450 P.2d 377 (1969); State v. Celaya, 107 Ariz. 175, 484 P.2d 7 (1971); State v. McIntyre, 107 Ariz. 515, 489 P.2d 1195, filed October 28, 1971); State v. Scott, 11 Ariz.App. 68, 461 P.2d 712 (1970) and State v. Williams, 13 Ariz.App. 201, 475 P.2d 293 (1970). We do not, however, view the foregoing cases as being determinative of the issues in the case at hand, since here we are not concerned with the right of the defense attorney to see the presentence report Prior to the time of sentencing. Since the decision by this court allowing the presentence report to become a part of the record on appeal necessarily will result in a divulgence of information on the presentence report to defense attorney we deem it necessary at this time to discuss the rule of law set forth by our Supreme Court in State v. Nelson, supra.

Although McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968), prevents us from overruling our own Supreme Court we feel compelled to express our disagreement with the rule and reasoning set forth in the Nelson case. We do so not out of disrespect, but only in the hope that there may be further discussion and examination of the ruling in that case.

The arguments that we hear most frequently against granting access to presentence reports are: (1) Sources of information will dry up since they know defendant will be aware of their statements; (2) the parties supplying the information may be harmed either physically or otherwise and (3) if the defendant challenges some of the information in the presentence report the result will be another 'trial' prior to sentencing.

Arguments for granting access most frequently advanced are: (1) Allowing defendant access enables him to clarify or refute data; (2) case work relationship will be strengthened and defendant can see that everyone is being above-board with him; ² (3) it lessens the danger that the report will contain erroneous data which will result in an error in sentencing.

The court in State v. Nelson, supra, came to the conclusion that if the names of the witnesses the probation officer interviews are revealed to defendant the sources of information will dry up since the people will be reluctant to give information. We are most impressed by the arguments for Vis-a -vis those against granting access. All legal decisions involve a balancing of conflicting interests. When balancing the arguments against granting access against the possibility that a man may end up in the Arizona State Prison because of erroneous information contained in a presentence report, we have no hesitancy in deciding which interest should prevail over the other. The interest of the defendant is paramount and outweighs the arguments against granting access. We note that in the juvenile court the pre-dispositional report of the juvenile probation officer, since the advent of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), has been made available to the defense attorney without any untoward events. Furthermore, we note that in the U.S. District Court in Tucson, all of the presentence report, except for the summary and recommendation of the probation officer, has been made available to the defense. The approved draft of the American Bar Association on Standards Relating to Sentencing Alternatives and Procedures, 4.4 provides as follows:

'(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of ...