Section 972.15. Presentence investigation.

 

(1)  After a conviction the court may order a presentence investigation, except that the court may order an employee of the department to conduct a presentence investigation only after a conviction for a felony.

(1m)  If a person is convicted for a felony that requires him or her to register under s. 301.45 and if the victim was under 18 years of age at the time of the offense, the court may order the department to conduct a presentence investigation report to assess whether the person is at risk for committing another sex offense, as defined in s. 301.45 (1d) (b) .

(2)  When a presentence investigation report has been received the judge shall disclose the contents of the report to the defendant's attorney and to the district attorney prior to sentencing. When the defendant is not represented by an attorney, the contents shall be disclosed to the defendant.

(2b)  If the defendant is subject to being sentenced under s. 973.01 and he or she satisfies the criteria under s. 302.05 (3) (a) 1. , the person preparing the presentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible to participate in the earned release program under s. 302.05 (3) .

(2c)  If the defendant is subject to being sentenced under s. 973.01 and he or she satisfies the criteria under s. 302.045 (2) (b) and (c) , the person preparing the presentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible for the challenge incarceration program under s. 302.045 .

(2g)  If the defendant is subject to being sentenced under s. 973.01 and a factor under s. 973.017 is pertinent to the offense, the person preparing the presentence investigation report shall include in the report any such factor.

(2m)  The person preparing the presentence investigation report shall make a reasonable attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim.

(2s)  If the defendant is under 21 years of age, the person preparing the presentence investigation report shall attempt to determine whether the defendant has been adjudged delinquent under ch. 48 , 1993 stats., or ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued and, if so, shall include that information in the report.

(3)  The judge may conceal the identity of any person who provided information in the presentence investigation report.

(4)  Except as provided in sub. (4m) , (4r) , (5) , or (6) , after sentencing the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.

(4m)  The district attorney, the defendant's attorney, and, following a conviction for a felony in which an assistant attorney general has original jurisdiction, served at the request of a district attorney under s. 978.05 (8) (b) , or served as a special prosecutor under s. 978.045 , the assistant attorney general are entitled to have and keep a copy of the presentence investigation report. If the defendant is not represented by counsel, the defendant is entitled to view the presentence investigation report but may not keep a copy of the report. Except as provided in s. 950.04 (1v) (p) , a district attorney, the defendant's attorney, or an assistant attorney general who receives a copy of the report shall keep it confidential. A defendant who views the contents of a presentence investigation report shall keep the information in the report confidential.

(4r)  The victim of the crime is entitled to view all sentencing recommendations included in the presentence investigation report, including any recommendations under sub. (2b) or (2c) , and any portion of the presentence investigation report that contains information pertaining to the victim that was obtained pursuant to sub. (2m) . A victim who views any contents of a presentence investigation report may not keep a copy of any portion of the report and shall keep the information he or she views confidential.

(5)  The department may use the presentence investigation report for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment or the intensive sanctions program, placed on probation, released on parole or extended supervision or committed to the department under ch. 51 or 971 or any other person in the custody of the department or for research purposes. The department may make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research. Any use of the report under this subsection is subject to the following conditions:

(a) If a report is used or made available to use for research purposes and the research involves personal contact with subjects, the department, agency or person conducting the research may use a subject only with the written consent of the subject or the subject's authorized representative.

(b) The department or the agency or person to whom the report is made available shall not disclose the name or any other identifying characteristics of the subject, except for disclosure to appropriate staff members or employees of the department, agency or person as necessary for purposes related to correctional programming, parole consideration, care and treatment, or research.

(6)  The presentence investigation report and any information contained in it or upon which it is based may be used by any of the following persons in any evaluation, examination, referral, hearing, trial, postcommitment relief proceeding, appeal, or other proceeding under ch. 980 :

(a) The department of corrections.

(b) The department of health services.

(c) The person who is the subject of the presentence investigation report, his or her attorney, or an agent or employee of the attorney.

(d) The attorney representing the state or an agent or employee of the attorney.

(e) A licensed physician, licensed psychologist, or other mental health professional who is examining the subject of the presentence investigation report.

(f) The court and, if applicable, the jury hearing the case.

1983 a. 102 ; 1987 a. 27 , 227 ; 1991 a. 39 ; 1993 a. 213 ; 1997 a. 73 , 181 , 205 , 283 ; 1999 a. 32 ; 2001 a. 109 ; 2003 a. 33 ; 2005 a. 311 , 434 ; 2007 a. 20 s. 9121 (6) (a) ; 2007 a. 80 , 97 ; 2011 a. 273 ; 2013 a. 108 , 338 , 362 ; 2015 a. 196 . The defendant was not denied due process because the trial judge refused to order a psychiatric examination and have a psychiatric evaluation included in the presentence report. Hanson v. State, 48 Wis. 2d 203 , 179 N.W.2d 909 (1970). It is not error for the court to fail to order a presentence investigation, especially when the record contains much information as to the defendant's background and criminal record. State v. Schilz, 50 Wis. 2d 395 , 184 N.W.2d 134 (1971). Section 48.78 does not prevent a judge from examining DHSS records. Restrictive rules of evidence do not apply to sentencing procedures. Hammill v. State, 52 Wis. 2d 118 , 187 N.W.2d 792 (1971). Refusal to accept a recommendation of probation does not amount to an abuse of discretion if the evidence justifies a severe sentence. State v. Burgher, 53 Wis. 2d 452 , 192 N.W.2d 869 (1972). If a presentence report is used by the trial court, it must be part of the record. Its absence is not error if the defendant and counsel saw the report and had a chance to correct it and if counsel approved the record without moving for its inclusion. Chambers v. State, 54 Wis. 2d 460 , 195 N.W.2d 477 (1972). It is error for the sentencing court to consider pre- Gault , 387 U.S. 1 , juvenile adjudications where juveniles were denied counsel, even to the extent of showing a pattern of conduct. Stockwell v. State, 59 Wis. 2d 21 , 207 N.W.2d 883 (1973). A presentence report, consisting of information concerning the defendant's personality, social circumstances, and general pattern of behavior and a section entitled "Agent's Impressions" contained neither biased nor incompetent material as such reports are not limited to evidence that is admissible in court, and the defendant's report, although recommending imposition of a maximum term, contained material both favorable and unfavorable as to defendant's general pattern of behavior. State v. Jackson, 69 Wis. 2d 266 , 230 N.W.2d 832 (1975). Consideration by the trial court of a presentence report prior to defendant's plea of guilty, in violation of sub. (1), constituted at most harmless error, since the evil the statute is designed to prevent — receipt by the judge of prejudicial information while still considering the defendant's guilt or innocence or presiding over a jury trial — cannot arise in the context of a guilty plea, especially when the trial court had already assured itself of the voluntariness of the plea and the factual basis for the crime. Rosado v. State, 70 Wis. 2d 280 , 234 N.W.2d 69 (1975). The sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. The scope of judicial inquiry prior to sentencing is discussed. Handel v. State, 74 Wis. 2d 699 , 247 N.W.2d 711 (1976). Information gathered in the course of a presentence investigation may not be revealed at a trial following withdrawal of guilty plea. State v. Crowell, 149 Wis. 2d 859 , 440 N.W.2d 348 (1989). Defendants appearing with or without counsel have a due process right to read the presentence investigation report prior to sentencing. State v. Skaff, 152 Wis. 2d 48 , 447 N.W.2d 84 (Ct. App. 1989). A defendant challenging a sentence on due process grounds based upon failure to receive a copy of the presentence investigation report is entitled to a hearing only upon a showing that the court had a blanket policy of denial of access and that the policy was specifically applied to defendant, or that before sentencing the defendant personally sought access and was denied it. State v. Flores, 158 Wis. 2d 636 , 462 N.W.2d 899 (Ct. App. 1990). A public defender appointed as postconviction counsel is entitled to the presentence investigation report under s. 967.06. Access may not be restricted under sub. (4). Oliver v. Goulee, 179 Wis. 2d 376 , 507 N.W.2d 145 (Ct. App. 1993). Although sub. (2s) requires a presentence report to include juvenile adjudications that are less than 3 years old, it does not prohibit the inclusion and consideration of adjudications that are older. State v. Crowe, 189 Wis. 2d 72 , 525 N.W.2d 291 (Ct. App. 1994). Sub. (5) does not provide a defendant with a means to obtain his or her presentence report. Access is provided by subs. (2) and (4). State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419 , 538 N.W.2d 608 (Ct. App. 1995), 94-1861 . A marital relationship between a case's prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki, 208 Wis. 2d 509 , 561 N.W.2d 332 (Ct. App. 1997), 96-1712 . The use of presentence reports from the underlying criminal proceeding in a ch. 980 sex offender commitment is not allowed under the sub. (5) provision for use of the reports for care and treatment, but allowing the state's psychologist to use, and allowing the ch. 980 jury to hear, the reports is within the court's discretion under sub. (4). State v. Zanelli, 212 Wis. 2d 358 , 569 N.W.2d 301 (Ct. App. 1997), 96-2159 . Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel's duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson, 222 Wis. 2d 403 , 588 N.W.2d 75 (Ct. App. 1998), 97-3070 . A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that she had treated the victim in the case justifying modification of the defendant's sentence. State v. Stafford, 2003 WI App 138 , 265 Wis. 2d 886 , 667 N.W.2d 370 , 02-0544 . This section applies only to court-ordered presentence investigation reports and does not refer to memorandum submitted by a defendant at sentencing nor prevent the use of the memorandum submitted at one trial at a subsequent trial. State v. Greve, 2004 WI 69 , 272 Wis. 2d 444 , 681 N.W.2d 479 , 02-2332 . Under Greve , defense counsel's failure to object to the testimony of the court-ordered presentence investigator constituted deficient performance, but failure to object to the testimony of the defense presentence investigator did not. State v. Jimmie R.R. 2004 WI App 168 , 276 Wis. 2d 447 , 688 N.W.2d 1 , 02-1771 . For the limited purposes of determining the procedure for accessing the presentence investigation report under sub. (4m), a defendant in a no-merit appeal is in the same shoes as a defendant who is unrepresented. The defendant is entitled to a meaningful viewing of the report, but may not retain a copy of it, subject to the requirement that the defendant keep the information in the report confidential and the circuit court's prerogative to redact identifying information of persons who provided information for the report. State v. Parent, 2006 WI 132 , 298 Wis. 2d 63 , 725 N.W.2d 915 , 05-0661 . In a no-merit appeal, as the attorney general is often the state's successor to the district attorney for purposes of this section, the attorney general's office after sentencing must make its request to obtain a copy of the presentence investigation report and to disclose its contents in the state's brief with the circuit court. State v. Parent, 2006 WI 132 , 298 Wis. 2d 63 , 725 N.W.2d 915 , 05-0661 . Suchocki does not extend to a situation in which the probation agent who prepared the PSI was married to another probation agent, and the two agents together were responsible for his supervision. Suchocki was based on the conflict of interest between the prosecutor, as an agent of the state and the adversary of the defendant, and the presentence investigator, who must serve as the neutral agent of an independent judiciary. When both the author of the PSI and his or her spouse are probation agents with joint responsibility for supervision, there is no inherent conflict of interest. State v. Thexton, 2007 WI App 11 , 298 Wis. 2d 263 , 727 N.W.2d 560 , 05-3109 . The right to consultation with counsel before a presentence interview does not include a right to be apprised of all lines of questioning before the interview occurs. State v. Thexton, 2007 WI App 11 , 298 Wis. 2d 263 , 727 N.W.2d 560 , 05-3109 . In a merit appeal, parties who are entitled "to have and keep a copy" of a presentence investigation report (PSI) under sub. (4m) need not ask any court's permission to reference the PSI in an appellate brief. Parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal. In the Matter of State v. Michael B. Buchanan, 2013 WI 31 , 346 Wis. 2d 735 , 828 N.W.2d 847 , 12-0544 . Courts do not have either express or implied statutory authority to order the destruction of presentence investigation reports. This section, the administrative code, and Supreme Court Rules on record retention implicate principles of preservation and confidentiality, not destruction. State v. Melton, 2013 WI 65 , 349 Wis. 2d 48 , 834 N.W.2d 345 , 11-1770 . Insuring the accuracy of the presentence investigation report in the Wisconsin correctional system. 1986 WLR 613.