MARK L. DYER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
January 9, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-2376-MR
MARK L. DYER
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE CHARLES SINNETTE, SPECIAL JUDGE
ACTION NO. 94-CR-00071
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
ABRAMSON, BUCKINGHAM, and EMBERTON, Judges.
ABRAMSON, JUDGE:
Mark L. Dyer, acting pro se, appeals an order
of the Boyd Circuit Court entered August 13, 1996, denying his
motion to compel production of a copy of a Presentence
Investigation Report (PSI).
We affirm.
On November 18, 1994, Dyer entered a guilty plea under
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), to one felony count of Criminal Possession of a
Forged Instrument in the Second Degree (KRS 516.060), pursuant to
a plea agreement in which the Commonwealth recommended a sentence
of one year.
After conducting the guilty plea hearing, which
included informing Dyer that he was waiving several
constitutional rights, the trial court found that the guilty plea
was entered freely, voluntarily and intelligently.
At that time,
the court postponed sentencing for preparation of a PSI.
On December 16, 1994, Dyer appeared in court with his
attorney for final sentencing.
The trial court provided defense
counsel with a copy of the PSI prepared by the Division of
Probation and Parole.
During the sentencing hearing, Dyer
challenged the accuracy of several entries.
First, he denied the
existence of a 1981 charge for possession of narcotics, which the
PSI indicated was dismissed.
He also denied having committed a
charge for shoplifting and a charge for bail jumping, which he
asserted had been dismissed.
Dyer voluntarily agreed to allow
the sentencing to proceed, but he asked the trial judge to order
Probation and Parole to investigate the alleged errors and
correct the PSI accordingly.
The judge told Dyer that he could
file a motion later if there were any questions about the
inaccuracies.
Dyer also asked the court to strike from the PSI a
reference to a statement by a former employer implicating him in
some possible thefts from the employer.
The court granted this
request and then sentenced Dyer to serve one year in prison.
In February 1995, Dyer wrote a letter to the trial
judge stating that he had been unable to obtain a copy of his PSI
and asking the judge to order a copy be made available.
On
February 24, 1995, the circuit court issued an order denying the
request stating the court did not have a copy of the PSI and Dyer
needed to make a request directly with the Division of Probation
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and Parole.
On May 21, 1996, however, the circuit court entered
an Agreed Order ordering the Probation and Parole Office to
investigate the criminal history portion of the PSI and report to
the court within ten days any changes.
On July 8, 1996, Dyer filed a motion to compel the
Division of Probation and Parole to comply with the May 21, 1996
order of the court.
Dyer also requested a copy of the PSI to
check for any inaccuracies.
On August 13, 1996, the circuit
court denied the motion to compel stating Dyer had not shown any
prejudice and the PSI was available only at the time of
sentencing.
This appeal followed.
Dyer argues the circuit court abused its discretion by
refusing to grant his motion to compel and refusing to allow him
to review a copy of his PSI to see that it had been corrected.
He contends that following the circuit court's February 24, 1995
order, his request for a copy of the PSI was denied by the
Division of Probation and Parole, the prison records custodian
and the Attorney General's Office, although we note there is no
evidence in the record to support this claim.
Dyer asks this
Court to remand the case to the Boyd Circuit Court to allow him
to continue the process of refuting his PSI or remand for a new
sentencing hearing.
The Commonwealth argues that this case is controlled by
the decision in Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987).
Bush, a prison inmate, sought a copy of a PSI (more appropriately
referred to as a post-sentencing investigation report) prepared
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by a probation and parole officer after sentencing for the prison
officials because he alleged it was being used for purposes of
classification and determination of eligibility for involvement
in prison programs.
Bush had initially waived preparation of a
PSI prior to sentencing.
The Kentucky Supreme Court reversed a
Court of Appeals decision that would have permitted receipt of an
edited version of a PSI with the names and sources of
confidential information deleted.
The Supreme Court held that
defendants were not entitled to an actual copy of the PSI at
either presentence or post-conviction stages.
The Supreme Court
stated that in order to protect the sources of confidential
information, and matters of opinion and comments of a personal
and factual nature, an actual copy of the PSI need not be
revealed.
The Court noted that a PSI is explicitly exempt from
disclosure under the Kentucky Open Records Law by KRS
61.878(1)(j), which exempts any records made confidential by the
General Assembly.
The PSI is made confidential by KRS 439.510.1
The Court also relied on KRS 532.050(4), which provided for the
court to "advise the defendant or his counsel of the factual
1
KRS 439.510 states in pertinent part:
All information obtained in the discharge of
official duty by any probation or parole
officer shall be privileged and shall not be
received as evidence in any court. Such
information shall not be disclosed directly
or indirectly to any person other than the
court, board, cabinet, or others entitled
under KRS 439.250 to 439.560 to receive such
information, unless otherwise ordered by such
court, board or cabinet....
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contents and conclusions of any presentence investigation."
The
Court stated in Bush:
Thus, the statute specifies that the
court shall advise of factual contents and
conclusions; not that the court shall release
a copy of the report. "Subsection (4) takes
a middle position between complete disclosure
of the entire report and no disclosure at
all." Commentary to KRS 532.050. (Emphasis in
original).
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Nevertheless, to conform with the "fair
opportunity" afforded a defendant by KRS
532.050(4), Bush is entitled to being advised
by the prison official who has custody of the
PSI of the factual contents and conclusions
therein, and to a reasonable time to
controvert factual information contained
therein.
In order to protect the sources of
confidential information, matters of opinion
and comments of a personal and nonfactual
nature shall not be revealed. Bush is not
entitled to a copy of the report. The type
of censoring suggested by the Court of
Appeals would be difficult if not impossible
to make.
Id. at 944.
The decision in Bush was based primarily on the
following factors: 1) a PSI is exempt from the Open Records law
under KRS 61.870 and KRS 439.510; 2) KRS 532.050(4) only required
that the court advise the defendant of the factual nature of the
PSI, rather than provide a copy; 3) KRS 532.050 expressed a need
to protect sources of confidential information; and, 4) editing
the PSI to delete all references to confidential sources would be
too burdensome.
Subsequent to the Bush decision, however, the
General Assembly amended KRS 532.050 to require the trial court
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to provide a defendant's counsel with a copy of the PSI, subject
to deletions to protect the sources of confidential information.
The pertinent provision, now appearing in subsection (5), states
as follows:
Before imposing sentence, the court shall advise the defendant or
his counsel of the factual contents and conclusions of any
presentence investigation or psychiatric examinations and afford
a fair opportunity and a reasonable period of time, if the
defendant so requests, to controvert them. The court shall
provide the defendant's counsel a copy of the presentence
investigation report. It shall not be necessary to disclose the
sources of confidential information.2
The amendment to KRS 532.050 appears to conflict with
part of the rationale supporting the decision in Bush, especially
the reliance on the requirement that the defendant merely be
advised of the factual contents of the PSI and the burden created
by censoring the report.
Moreover, the concern for protection of
confidential sources and confidential information is alleviated
somewhat if the defendant has already received access to the PSI,
albeit a censored version.
Nevertheless, the other factors
addressed by the court in Bush remain, such as the exclusion from
the Open Records law and a need to protect confidential sources.
Indeed, the amended statute retains the provision stating that
confidential information need not be disclosed.
Consequently,
while the viability of some aspects of the Bush decision is
unclear, even the current statutory law indicates that reports
2
The sentence stating the court shall provide
defendant's counsel with a copy of the presentence investigation
report was added in 1990. In 1996, a new Subsection (4) dealing
with sexual offenders was added, and the contents of former
Subsection (4) became a part of new Subsection (5).
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prepared by the Division of Probation and Parole are not
automatically subject to disclosure, and the trial court retains
discretion under KRS 439.510 whether to provide a defendant a
copy of a PSI/Post-Sentencing report after sentencing as long as
he is provided the factual information in the report and a "fair
opportunity" to challenge it.
In the case sub judice, Dyer has not established that
he was entitled to obtain a copy of the PSI subsequent to
sentencing, and we cannot say the trial court abused its
discretion.
Dyer has demonstrated no actual prejudice at
sentencing because he took advantage of the opportunity to fully
challenge the contents of the PSI at the sentencing hearing, and
the trial court duly considered the alleged inaccuracies prior to
sentencing.
Dyer voluntarily waived further postponement of
sentencing despite the problems with the PSI.
Finally, the trial
court sentenced Dyer consistent with the Commonwealth's
recommendation in the plea agreement.
Therefore, Dyer is not
entitled to a remand for a new sentencing proceeding.
Dyer also contends that the parole board denied him
parole because of the alleged erroneous information in the PSI.
First, we note that Dyer has provided no evidentiary support for
this allegation.
PSI.
The parole board is entitled to consider the
See Aaron v. Commonwealth, Ky. App., 810 S.W.2d 60, 62
(1991); KRS 439.510.
"A parole board has broad discretion in
hearing evidence, including dismissed counts of an indictment,
hearsay evidence, and allegations of criminal activity for which
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the prisoner has not even been charged."
62.
Aaron, 810 S.W.2d at
Given the wide scope of information that may be included in
a PSI, Dyer's four disputed entries include only one - the 1981
charge for possession of narcotics - which is even arguably
subject to expungment from the PSI.
Dyer has not established
that he was not given an opportunity to challenge the PSI before
the parole board.
Thus, Dyer has demonstrated neither any
prejudice related to not being granted parole, nor a compelling
need to obtain a copy of the PSI.
For the foregoing reasons, we affirm the order of the
Boyd Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Mark L. Dyer
Wheelwright, Kentucky
A. B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
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