Opinion
Docket No. 77258.
Decided September 18, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Susan J. Smith), for defendant on appeal.
After pleading guilty as charged to breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, defendant was sentenced to 10 to 15 years' imprisonment. He appeals his sentence as of right.
At defendant's sentencing, the trial judge indicated that he had engaged in an ex parte conversation with two police officers the day before sentencing.
" The Court: I just want to indicate a couple of things on the record. Then I will give you an opportunity to speak on behalf of your client, as I will Mr. Vroman.
"First, I want to indicate that yesterday Sergeant Bunch and Sergeant Law of the Dearborn Police Department came to see me. They indicated they wanted to make certain that I knew a couple of things about Mr. Vroman, and I want that on the record. I will give you an opportunity to contest them, and if they are improper I won't consider them. But I think you should know about them.
"They indicated that Mr. Vroman was charged with CSC as a juvenile. In fact, that is indicated in the presentence report. They also indicated a belief that Mr. Vroman is involved in a number of breaking and enterings in his neighborhood. They indicated to me that he, his brother and his father have a Detroit Free Press route, and that since he has been arrested on the last breaking and entering there has been a noticeable decline in breaking and enterings in the neighborhood.
"I think it is appropriate for officers involved in a case to come and discuss it with me, and whatever they know I think is important for me to know in terms of sentencing. But I want you to have an opportunity to respond to that.
"I should indicate that I am not going to consider their claims with respect to the fact that B E's have decreased. There is absolutely no way you could respond to that. But it was said to me, and I want you to know about that."
Defendant's initial contention is that he should be resentenced because he was denied effective assistance of counsel when the sentencing judge discussed the case with the officers outside the presence of defendant's attorney. We agree.
In People v Oliver, 90 Mich. App. 144; 282 N.W.2d 262 (1979), rev'd on other grounds 407 Mich. 857; 283 N.W.2d 502 (1979), the sentencing judge met with a probation officer in the absence of defendant or defense counsel. This Court stated:
"Defendants are entitled to the assistance of counsel at those stages of criminal proceedings at which substantial rights may be affected. Sentencing is one such proceeding. Mempa v Rhay, 389 U.S. 128; 88 S Ct 254; 19 L Ed 2d 336 (1967). Counsel is needed to present to the court extenuating facts, explain conduct, correct errors in reports of defendants' past conduct, and appeal to the equity of the court. People v Dye, 6 Mich. App. 217, 219; 148 N.W.2d 501, 502 (1967). Our Supreme Court has commented on the critical need for accurate facts as a basis for sentencing, and the consequent need for a procedure to allow defendants to rebut inaccurate information. People v Malkowski, 385 Mich. 244, 249; 188 N.W.2d 559, 562 (1971). Where, as here, the trial court obtains information about a defendant, not equally available to the defendant's counsel, there is no opportunity for effective rebuttal, and inaccurate information may creep into the proceedings. Whether the trial court's conference with the probation officer is viewed as a part of the sentencing proceeding at which counsel was excluded, or a separate proceeding, it was a critical stage at which substantial rights of defendant may have been affected." 90 Mich. App. 149-150. (Footnote omitted.)
In People v Black, 103 Mich. App. 109; 302 N.W.2d 612 (1981), a majority of the panel concluded that the defendant was presumed to have been denied effective assistance of counsel where the sentencing judge held an ex parte discussion with a probation officer, irrespective of whether the judge actually received during such discussion any information not contained in the presentence report. The holding in Black was subsequently limited in People v Crawford, 115 Mich. App. 516; 321 N.W.2d 717 (1982), and People v Beal, 104 Mich. App. 159; 304 N.W.2d 513 (1981). In Crawford, supra, the presumption of prejudice enunciated in Black was held to be rebuttable. In Beal, this Court concluded that " Oliver should be limited to prohibiting any presentence conference where the sentencing judge is given `information about a defendant, not equally available to the defendant's counsel * * *'". 104 Mich. App. 159, 167.
Taken together Oliver, Black, Crawford, and Beal stand for the proposition that a defendant whose counsel is not given an opportunity to represent the defendant at a sentencing conference is rebuttably presumed to have been denied effective assistance of counsel. If the presumption is not rebutted by the facts of the case, including the fact that the information discussed in the conference was available to defendant, then resentencing is required. See also People v Jeffrey Thompson, 117 Mich. App. 210; 323 N.W.2d 656 (1982), lv gtd 418 Mich. 946 (1984). It is important to note, however, that those cases all involved discussions between a judge and a probation officer acting as presentence investigator.
In People v Von Everett, 110 Mich. App. 393; 313 N.W.2d 130 (1981), a sentencing conference took place between the sentencing judge and the prosecutor without the presence of the defense attorney. This Court held that the defendant had "a right at least to have his attorney present at the sentencing conference", and that prejudice would be presumed since without defense counsel it could not be determined what actually transpired in the judge's chambers. Von Everett, supra, pp 396-397. Citing Oliver and Beal, the Court further held that the ex parte conference deprived defendant of his right to counsel. This Court observed:
"We believe that an even greater danger of prejudice exists when the prosecutor is permitted to confer privately in chambers with the sentencing judge. The prosecutor, unlike a presentence investigator, plays an adversarial role in the judicial system. Moreover, he may have information about a defendant's links to other crimes that might not be available to a presentence investigator. The danger of prejudice is great. Accordingly, we hold that a sentencing judge's private conference with the prosecutor in this case violated the defendant's right to counsel." Von Everett, supra, p 397. Cf. People v Sexton, 113 Mich. App. 145; 317 N.W.2d 323 (1982).
We find the reasoning of Von Everett to be dispositive of this case. Even more so than in Von Everett, the conference at issue in the instant case was with persons in an adversarial role in the proceedings. Those persons not only "may have information about a defendant's links to other crimes that might not be available to a presentence investigator", Von Everett, supra, p 397, but were apparently impelled to contact the judge because they believed they possessed such information. We realize that the information conveyed by the officers was either contained in the presentence report or was not considered by the court when imposing sentence. Nevertheless, we cannot condone ex parte discussions between the sentencing judge and police officers regarding a defendant's sentence. The situation invites prejudice. A police officer is not a resource person available to the court for consultation in sentencing. To place our imprimatur on such discussions is to invite information which defendant could not rebut "to creep into the proceedings", Oliver, supra, p 150, as the sentencing judge in this case recognized. Accordingly, we remand for resentencing before another judge.
Defendant also argues that the sentencing judge erred in imposing sentence by considering a psychiatric report prepared by the Recorder's Court Psychiatric Clinic. Defendant contends that the report could not be used for sentencing purposes because he was not informed before he submitted to psychiatric evaluation of his right to remain silent and that information he gave to the clinic could be used against him at sentencing.
We initially note that the propriety of the report was not objected to at sentencing or by motion to vacate sentence. In fact, the contents of the report were relied on by defense counsel in urging a lenient sentence. This precludes appellate review of the issue. See, e.g., People v Hart, 129 Mich. App. 669; 341 N.W.2d 864 (1983), lv den 419 Mich. 860 (1984). However, because we remand for resentencing, we register our disagreement with defendant's contention. As opposed to a sentencing conference, a defendant's presentence interview is not an adversarial proceeding, but a diagnostic and rehabilitative procedure. Accordingly, the right against self-incrimination or to have counsel present does not attach. People v Shively, 45 Mich. App. 658; 206 N.W.2d 808 (1973), People v Burton, 44 Mich. App. 732; 205 N.W.2d 873 (1973), lv den 389 Mich. 795 (1973). Likewise, psychiatric evaluation is a diagnostic procedure to which we believe the privilege against self-incrimination is not applicable. The purpose of the privilege is to assure that no one will be convicted upon his own coerced confession. Burton, supra, p 735, citing Malloy v Hogan, 378 U.S. 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), and Murphy v Waterfront Comm of New York Harbor, 378 U.S. 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964). We do not believe that the privilege should be extended to clinical interviews which take place after a guilty plea has been entered and which have a purpose quite different from the determination of guilt. We therefore conclude that the results of the psychiatric report may be considered by the judge when imposing sentence.
Vacated and remanded for further proceedings consistent with this opinion.