Docket No. 45706.
Decided June 5, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: M.J. KELLY, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.
Defendant, Carl Albert Matzat, appeals as of right from his plea-based conviction and subsequent 20- to 40-year prison sentence for second-degree murder. MCL 750.317; MSA 28.549. On appeal, defendant raises two issues in support of his claim for a remand for resentencing.
Defendant first alleges that two presentence conferences between the sentencing judge and defense counsel, at which the defendant was not present, denied the defendant his right to allocution. GCR 1963, 785.8(2).
This Court has held in several cases that a sentencing conference between the trial judge and defense counsel is not a critical stage of the proceedings, requiring a defendant's presence. People v McIntosh, 101 Mich. App. 422; 300 N.W.2d 584 (1980), People v Briggs, 94 Mich. App. 723; 290 N.W.2d 66 (1980), People v Worden, 91 Mich. App. 666; 284 N.W.2d 159 (1979). Also, defense counsel's presence at the conference prevented the trial court from obtaining "information about [the] defendant, not equally available to the defendant's counsel * * *". People v Oliver, 90 Mich. App. 144, 149; 282 N.W.2d 262 (1979), rev'd on other grounds 407 Mich. 857 (1979). Finally, our review of the sentencing transcript reveals that both defendant and his attorney were "given the opportunity to address the court before sentencing". People v Berry, 409 Mich. 774, 779; 298 N.W.2d 434 (1980), GCR 1963, 785.8(2), 785.9. The defendant's claim that he was denied his right to allocution prior to sentencing is thus without merit.
The defendant next argues that he was denied his right to allocution because neither the defendant nor his attorney were informed of a supplement to the presentence report given to the lower court prior to sentencing. The disputed memorandum recommended that the defendant be sentenced to a term of imprisonment of from 10 to 20 years.
The disclosure of presentence reports and the right of a defendant to controvert factual matters therein is governed by GCR 1963, 785.12, which provides:
"Disclosure of Presentence Reports. The sentencing court shall permit the defendant's attorney, or if the defendant is not represented by counsel, the defendant, to inspect the presentence report. The prosecution must also be shown the report. Both parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report. The court may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality. When a part of the report is not disclosed, the court shall state on the record the reasons for its action and inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure is subject to appellate review. The defendant's attorney on appeal has the right to inspect the presentence report at the county probation department or under the supervision of the Department of Corrections, at the attorney's option."
A cursory reading of the above rule discloses three essential rules regarding presentence report disclosure prior to appeal. Initially, the sentencing court must divulge the contents of the report to the defendant or defense counsel, as well as to the prosecuting attorney. Each side must then be afforded a full opportunity to contest or explain factual assertions contained in the report. Finally, if the sentencing judge deems it advisable to exclude certain factual, opinion, or diagnostic information in the report from disclosure, an explanation of the basis for the exclusion must be provided.
We note Department of Corrections Rule 910(1), 1977 AACS R 791.9910, which provides:
"Rule 910. (1) A presentence report shall contain at least the following information:
* * *
"(g) Recommended disposition, unless prohibited by the sentencing court."
See also People v Books, 95 Mich. App. 500, 504-505, fn 5; 291 N.W.2d 94 (1980).
We cannot conclude that defendant was permitted his full right "to inspect the presentence report" in the instant case. The court rule above does not limit the defendant's right of inspection only to those portions of the report available on the day of sentencing. Rather, the defendant's right of inspection extends to the entire report, with the single exception of those matters properly deleted under the court rule.
We hold, therefore, that the defendant herein was denied his right to inspect his presentence report prior to the imposition of sentence. The defendant's case is thus remanded for a new sentencing at which an updated presentence report will be prepared and the defendant will be permitted to inspect and respond to its contents.
Remanded for a resentencing.
I concur in the result reached by the majority and write separately only to reaffirm my belief that it is error to excuse a defendant from an in-chambers sentencing conference between his counsel and the judge. See People v McIntosh, 101 Mich. App. 422, 423; 300 N.W.2d 584 (1980) (T.M. BURNS, J., dissenting). A criminal defendant cannot exercise adequately his right to allocute unless he is made aware of all factors deemed by the sentencing judge to be pertinent. If a defendant's counsel believes that he better can represent the interests of his client at a private conference with the judge, then he only need get his client to state on the record that he waives his right to be present at the conference.
Therefore, in addition to the remedy granted by the majority opinion, I would hold that on remand no in-chambers conference should be held in the absence of defendant unless he waives on the record his right to be present.