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…. By Colorado Criminal Defense Lawyer – H. Michael Steinberg
A Colorado judge who must pass sentence in any criminal case want as much information as possible I his or her hands before imposing the sentence. Many courts do not accept stipulations between the DA and the defense lawyer as regards the sentence. Therefore the presentence reprt takes on critical importance.
In most criminal cases, guilty pleas are rapid and rote, and do not provide much information to the judge about the criminal defendant, his merits or his shortcomings. Perhaps because of this, most jurisdictions authorize a continuance between the plea sentencing for court officers (usually representatives of the probation department) to conduct a pre-sentence investigation of the defendant and report to the judge and the parties.
Judges then use the presentence investigation report (“PSIR”) to arrive at an appropriate sentence, and the correctional authorities rely upon it to determine the defendant’s security classification and institutional placement. If you or a loved one is facing sentencing on criminal charges, here is some important information you need to know about this critical stage of the sentencing process:
The preparation of the PSIR does not involve much investigation, other than interviewing the prosecutor and the defendant and gathering records. Presentence investigators usually do not canvass the neighborhood to ascertain the defendant’s reputation and good or bad deeds.
The PSIR will cover at least the following areas:
•The underlying facts of the offense. The investigator usually relies upon the prosecutor or case agent for this, but might ask for the defendant’s version.
•The defendant’s health and medical and psychiatric background. The investigator will have the defendant sign releases for records, but will not know of special needs unless the defendant’s criminal trial lawyer tells the investigator. Among the topics covered here will be illegal drug use.
•Family background. The investigator will start with the defendant’s description of his family background, but may contact a sibling or parent to confirm the information.
•Educational and employment history. Be accurate. The investigator will seek corroboration.
•Assets, income and expenses. This becomes important where a fine or forfeiture is likely, or where the crime calls for restitution.
•Educational, treatment and rehabilitative programs available for the defendant. PSIRs often fall short in this respect, but seek recommendations that might help keep the defendant from becoming a repeat offender (e.g., job training, drug and alcohol treatment, anger management classes and counseling for gamblers).
•Sentencing calculations according to the level of the crime at issue.
•Sentencing recommendation. The probation officer often will recommend a specific sentence to the judge. Unlike the rest of the report, this recommendation often remains secret from the criminal defense team and the prosecution.
In most misdemeanor cases, the parties will have an agreement or at least a relatively certain expectation regarding the sentence, and there is only one institution in which to serve custodial sentences (the county jail) so a presentence report serves little purpose and may not be required.
With a conviction on a felony criminal charge, however, a presentence investigation may be mandatory, but the applicable Colorado rule or statute may leave some room for the parties and trial judge to waive it.
The defendant should waive (i.e., bypass) a presentence investigation and report when the judge or prosecutor has guaranteed a favorable sentence. When the judge can sentence-bargain, a PSIR may provide the judge an out from a favorable promise. When the judge does not participate in bargaining and the prosecutor can make only non-binding recommendations, the trial judge likely will follow that recommendation, reasoning that the prosecutor and the criminal defense lawyer know best the defendant’s conduct and background, and the proper dose of punishment.
Remember, at the time of plea, the judge has heard nothing more than the brief plea discussion, which merely sketches the criminal offense conduct and says nearly nothing about the defendant’s background. The presentence investigator might excavate sordid details of the crime and the defendant’s background, which might justify a more severe sentence.
The weight of legal authority holds that a presentence interview is not a critical stage of the proceedings at which the criminal defendant has a right to counsel. These rulings are premised on the belief that the investigator acts as an arm of the court, not an adversary.
Colorado does not permit an attorney to attend.
Whether or not defense counsel is present, the defendant should follow these general guidelines for the interview:
•Criminal history questions
The defendant should not answer questions about his criminal history. Defendants often deny guilt of crimes to which they pleaded guilty, and sometimes in good faith assert that a case that resulted in a conviction and time served was “dismissed.” These inaccuracies can lead the presentence investigator to characterize the defendant as dishonest. Further, the defendant may inform the investigator about crimes that never would have been discovered (e.g., crimes in other states or convictions in local courts or before the minor judiciary). When asked, the defendant must answer questions about his criminal history honestly. Accordingly, the best strategy is an across-the-board refusal to address the topic.
•Crime of conviction questions
Questions about the criminal offense charged may similarly entangle the defendant. The defendant might add otherwise unknown damning facts or dishonestly minimize his guilt. If the investigator demands a statement, on the threat that silence will lose the defendant credit for accepting responsibility for his crime, the defense attorney should provide a written statement authored in consultation with the defendant.
•Drug use questions
Questions about drug use should be handled on a case-by-case basis, depending on the defendant, the nature of the criminal charges, and the judge. Some judges consider drug use to be a mitigating factor, and reference in the PSIR to the defendant’s drug use may facilitate entry into treatment programs, which could reduce the sentence. Drug dealers who sell to support their habit seem less culpable than those who sell out of greed. However, drug use is criminal conduct, and it may disturb some judges, especially if the defendant was on probation or parole while using drugs. Many probation officers demand that the defendant give a urine sample at the interview. The defendant should be warned to clean up or to confess to his drug use so he is not caught in a lie. If it is a foregone conclusion that the sample will be positive, the criminal defense lawyer should notify the probation officer in advance.
The defendant’s criminal trial lawyer may submit information about the defendant, the defendant’s version of the criminal offense, and any mitigating factors as soon as possible to increase the likelihood that the probation officer will include the information in the report. The officer’s endorsement of the information cloaks it with a credibility that defense counsel’s post-report sentencing memorandum will not have. Information submitted to the investigator should be specific and be accompanied by supporting documentation to which the officer can refer.
With respect to the defendant’s personal background, one family member should be designated as the ambassador to the presentence investigator. This should be someone who is responsible and sympathetic to the defendant, who can assemble pertinent information, share it with the investigator and support it with corroborating details and documents.
It is important to challenge inaccuracies in the PSIR and to ask the judge to order inaccurate allegations be redacted from the PSIR because:
•The trial judge will rely upon unchallenged factual assertions in the PSIR.
•Prison officials rely heavily on the PSPIR to arrive at a security classification. Inaccuracies about the defendant’s drug use, flight risk or history of violence may result in placement in a higher security prison or in more restrictive conditions of confinement, even if the inaccuracies do not affect the sentence.
The defendant’s criminal trial lawyer should obtain, if possible, the report far enough in advance of sentencing to review it with the defendant, investigate its inaccuracies, research any legal issues on merger, concurrency of sentences and guidelines calculations, and file written objections. On many issues, such as the facts underlying prior convictions, family history, and drug use, the defendant is an essential starting point for any challenges.
A criminal defendant has a right to receive the PSIR in sufficient time to review and challenge it.
If the materials are received late, the criminal defense lawyer should request a continuance and justify the request with an explanation of what investigation and research needs to be done.
(1) (a) Following the return of a verdict of guilty of a felony, other than a class 1 felony, or following a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, or upon order of the court in any misdemeanor conviction, the probation officer shall make an investigation and written report to the court before the imposition of sentence.
Each presentence report shall include a substance abuse assessment or evaluation made pursuant to article 11.5 of this title and, unless waived by the court, shall include, but not be limited to, information as to the defendant’s family background, educational history, employment record, and past criminal record, including the defendant’s past juvenile delinquency record, if any, if the defendant has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), an evaluation of the alternative dispositions available for the defendant; the information required by the court pursuant to article 18.5 of this title; a victim impact statement; and such other information as the court may require. A victim impact statement shall be prepared by the district attorney’s office on and after September 1, 1985.
The department of human services shall provide the district attorney’s office with the information necessary for the preparation of a victim impact statement. In addition, the court, in cases that it deems appropriate, may require the presentence report to include the findings and results of a professionally conducted psychiatric examination of the defendant. No less than seventy-two hours prior to the sentencing hearing, copies of the presentence report, including any recommendations as to probation, shall be furnished to the prosecuting attorney and defense counsel or to the defendant if he or she is unrepresented. A copy of the presentence report shall be transmitted to the department of corrections together with the mittimus.
(b) Each presentence report prepared regarding a sex offender, as defined in section 16-11.7-102 (2), with respect to any offense committed on or after January 1, 1996, shall contain the results of an evaluation and identification conducted pursuant to article 11.7 of this title. In addition, the presentence report shall include, when appropriate as provided in section 18-3-414.5, C.R.S., the results of the risk assessment screening instrument developed pursuant to section 16-11.7-103 (4) (d). Notwithstanding the provisions of subsection (4) of this section, a presentence report shall be prepared for each person convicted as a sex offender, and the court may not dispense with the presentence evaluation, risk assessment, and report unless such a report has been completed within the last six months and there has been no material change that would affect the report in the past six months.
(c) (I) The state court administrator may implement a mental illness screening program to screen defendants for which the court has ordered an investigation pursuant to this section. If the state court administrator chooses to implement a mental illness screening program, the state court administrator shall use the standardized mental illness screening instrument developed pursuant to section 16-11.9-102 and conduct the screening in accordance with the procedures established pursuant to said section. The findings and results of any standardized mental illness screening conducted pursuant to this paragraph (c) shall be included in the written report to the court prepared and submitted pursuant to this subsection (1).
(II) Prior to implementation of a mental illness screening program pursuant to this paragraph (c), if implementation of the program would require an increase in appropriations, the state court administrator shall submit to the joint budget committee a request for funding in the amount necessary to implement the mental illness screening program. If implementation of the program would require an increase in appropriations, implementation of the mental illness screening program shall be conditional upon approval of the funding request.
(1.5) A victim impact statement may include the following:
(a) An identification of the victim of the offense;
(b) An itemization of any economic loss suffered by the victim as a result of the offense, including any loss incurred after the offense and after criminal charges were filed formally against the defendant. The victim impact statement shall be prepared by the district attorney’s office at the time the offense is filed and shall be updated to include any loss incurred by the victim after criminal charges were filed.
(c) An identification of any physical injury suffered by the victim as a result of the offense, including information on its seriousness and permanence;
(d) A description of any change in the victim’s personal welfare or familial relationships as a result of the offense;
(e) An identification of any request for psychological services initiated by the victim or the victim’s family as a result of the offense;
(e.5) An evaluation of the victim’s and the victim’s children’s safety if probation is granted;
(f) Any other information related to the impact of the offense upon the victim that the court requires.
(1.7) Each presentence report shall also include information from the offender and any other source available to the probation officer regarding the offender’s estate, as defined in section 18-1.3-701 (5) (b), C.R.S., and other pertinent financial information, for the purpose of determining whether such offender or juvenile has sufficient assets to pay all or part of such offender’s or juvenile’s cost of care, as defined in section 18-1.3-701 (5) (a), C.R.S. The financial information obtained from the offender shall be submitted in writing and under oath.
(1.8) Upon the request of either the prosecution or the defense, each presentence report prepared regarding a youthful offender, as defined in section 18-1.3-407, C.R.S., who is eligible for sentencing to the youthful offender system pursuant to section 18-1.3-407.5, 19-2-517 (6), or 19-2-518 (1) (d) (II), C.R.S., shall include a determination by the warden of the youthful offender system whether the youthful offender is acceptable for sentencing to the youthful offender system. When making a determination, the warden shall consider the nature and circumstances of the crime, the circumstances and criminal history of the youthful offender, the available bed space in the youthful offender system, and any other appropriate considerations.
(1.9) Each presentence report shall also:
(a) Include the results of an actuarial assessment of the offender’s criminological risks and needs;
(b) Provide sufficient information to allow the court to consider:
(I) Whether the offender is a suitable candidate for a sentencing option that does not involve incarceration or a combination of sentencing options that does not involve incarceration; and
(II) The appropriate conditions to impose if a defendant is sentenced to probation;
(c) Describe the projected costs, if known, that are associated with each sentencing option that is available to the court; and
(d) Set forth the purposes of title 18, C.R.S., with respect to sentencing, as such purposes are described in section 18-1-102.5, C.R.S.
(2) The report of the probation officer and the procedures to be followed at the time sentence is imposed and final judgment is entered shall be as required by the Colorado rules of criminal procedure. In addition to the requirements of such rules, the report shall include a statement showing the amount of time during which the defendant was imprisoned awaiting trial upon the charge resulting in conviction.
(3) The court, upon its own motion or upon the petition of the probation officer, may order any defendant who is subject to presentence investigation or who has made application for probation to submit to a mental and physical examination.
(4) The court, with the concurrence of the defendant and the prosecuting attorney, may dispense with the presentence examination and report; except that the information required by section 18-1.3-603 (2), C.R.S., and a victim impact statement shall be made in every case. The amount of restitution shall be ordered pursuant to section 18-1.3-603, C.R.S., and article 18.5 of this title and endorsed upon the mittimus.
(5) After receiving the presentence report and before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment. The prosecution also shall be given an opportunity to be heard on any matter material to the imposition of sentence. The court shall then sentence the defendant pursuant to the provisions of this article and section 18-1.3-401, C.R.S.
(6) Following the return of a verdict of guilty of a felony, or a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, the district attorney may file with the court identification photographs and fingerprints of the defendant or defendants, and such identification photographs and fingerprints shall become part of the court record. Such identification photographs and fingerprints of the defendant or defendants shall constitute prima facie evidence of identity under section 18-1.3-802, C.R.S.