The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5476

March 30, 1979

DEPARTMENT OF CORRECTIONS:

Right of prisoner acting as own attorney on appeal to inspect pre-sentence report

ATTORNEYS:

Right of prisoner acting as own attorney on appeal to inspect pre-sentence report

PRISONS AND PRISONERS:

Right of prisoner acting as own attorney on appeal to inspect pre-sentence report

A prisoner sentenced after September 1, 1973, acting as his own attorney in taking an appeal, has a right to inspect his or her pre-sentence report at the county probation department or under the supervision of the Department of Corrections. In inspecting the pre-sentence report, the prisoner is only entitled to review those portions not deleted by the court.

Perry M. Johnson

Director

Department of Corrections

Stevens T. Mason Building

Lansing, Michigan 48913

You have requested my opinion as to whether a prisoner acting as his own attorney on appeal has a right to inspect his pre-sentence report.

Const 1963, art 2, Sec. 8 provides:

'A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by attorney.'

If this constitutional provision is to be given full effect, a prisoner or any other person acting as his own attorney must have the same rights of discovery and inspection as a licensed attorney.

GCR 1963, 785.12 provides in part as follows:

'. . . The defendant's attorney on appeal has the right to inspect the pre-sentence report at the county probation department or under the supervision of the Department of Corrections, at the attorney's option.'

Thus, as a defendant's attorney appeal has a right to inspect the pre-sentence report, it follows that the defendant has the same right. However, an attorney's right to inspect an unexpurgated version of the pre-sentence report is not absolute.

GCR 1963, 785.12 supra, has been amended a number of times. Prior to September 1, 1973, neither the defendant nor his attorney had a right to see the pre-sentence report. However, the court rule was amended on September 1, 1973 to give the defendant or his attorney a limited right to see the pre-sentence report and the court rule currently provides:

'Both parties shall be given an opportunity at time of sentencing to respond to the pre-sentence report and to explain or controvert any factual representations disclosed. 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. In all cases where parts of the report are not disclosed under such authority, the court shall state for the record the reasons for its actions and inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure shall be subject to appellate review.' (emphasis added)

The meaning of the court rule, as amended, was examined in People v Sallee, 63 Mich App 146; 234 NW2d 180 (1975), wherein defendant wanted his appellate counsel provided with a copy of the pre-sentence report or given the right to examine the pre-sentence report prepared to assist the trial judge in determining the appropriate sentence to be imposed.

In Sallee, the court held that a defendant sentenced prior to September 1, 1973 was not entitled to inspect his pre-sentence report and that an appellate attorney, while not entitled to receive a copy of the pre-sentence report, should be entitled to inspect the report during regular court hours if the defendant was sentenced after September 1, 1973.

Also, the provision of GCR 1963, 785.12, emphasized above, authorizing the court to except from disclosure parts of the report, creates two kinds of fact situations.

The first is the situation where the pre-sentence report was afforded to defendant or his counsel prior to sentence and it would be presumed that any exempt material would have been deleted by the sentencing judge. Therefore, in this case the Department of Corrections is able to furnish the abridged version of the report as approved by the court or, if no abridgements were made, the entire pre-sentence report.

Where, however, the pre-sentence report was not inspected by the defendant or his trial counsel, a determination must be made of which parts of the report should not be disclosed. This determination must be made by sending the pre-sentence report back to the sentencing judge as required by GCR 1963, 785.12.

In summary, a defendant on appeal has a right to inspect the pre-sentence report at the county probation department or under the supervision of the Department of Corrections only if sentenced after September 1, 1973, and then only as to those portions of the pre-sentence report not deleted by the court. If the pre-sentence report has not been reviewed by the sentencing judge as provided by GCR 1963, 785.12, it should be returned to the judge for that purpose before being made available to the prisoner.

Frank J. Kelley

Attorney General