There is a gamut of procedures that the courts must follow that encompasses criminal law. First, it is reported that someone has allegedly committed a crime. Second, there must be probable cause to try that individual for that specific crime, and in the justice system, everyone is innocent until proven guilty. Third, the defendant has a choice to enter a plea agreement or proceed forward with a bench trial or a jury trial. If the defendant is found to be guilty, there will subsequently be a sentencing hearing. Now many of you all may be asking, “How does the court determine what kind of sentence it will impose on the defendant?” Well, aside from the mandatory and minimum sentences for each crime, the court may consider a pre-sentence investigation report, especially on all felony convictions. In Indiana a court must require a PSI on any felony where department of corrections is a possibility, there is any open term open to argument, and on any Level 5 felony or higher. At times, the State of Indiana and the Defense can ask to waive the PSI report depending on what sentence will be imposed, however the judge is the ultimate decider of whether a PSI is required or not.
What is it?
A pre-sentence investigation report came about during a transition to evidence based practices for sentencing. Evidence based practiced was implemented to guide judges in determining what sentence are appropriate for each individual defendant and to help decide whether or not a given plea agreement is fair given the circumstances. After all, each defendant should be treated fairly and uniquely given the circumstances. Furthermore, the PSI was implemented to consider mitigating or extenuating circumstances to determine whether those factors will play a vital role in ameliorating and/or increase a defendant’s sentence .
According to the Indian Court of Appeals, “[t]he purpose of pre-sentence report is to assist the judge in individualized sentencing and probation officers have a great deal of freedom in determining what to include in the report, although report must contain only accurate information.” Yates v. State, 429 N.E.2d 992 (Ind. Ct. App. 1982). The Indiana Code § 35-38-1-8 provides:
- Except for provided in subsection (c), a defendant convicted of a felony may not be sentenced before a written pre-sentence report is prepared by a probation officer and considered by the sentencing court. Delay of sentence until a pre-sentence report is prepared does not constitute an indefinite postponement or suspension of sentence.
- A victim present at sentencing in a felony or misdemeanor case shall be advised by the court of a victim’s right to make a statement concerning the crime and the sentence.
- A court may sentence a person convicted of a Level 6 felony without considering a written pres-entence report prepared by a probation officer.
How are they prepared?
Before a defendant is officially sentenced, and often after the guilty plea, the judge will order the defendant to report to probation for preparation of the report. This report is conducted by an assigned probation officer, whom plays an integral part in determining sentencing. The probation officer collects all the pertinent information, evaluates and interprets the information to adequately present to the court upon the hearing. Why does the probation officer have primary control over this and not the defendant’s attorney? When a defendant is released, they have their assigned probation officer that they must report to on a consistent basis. This report allows the probation officer to observe any risk that will be associated with the defendant. However, the attorney can also seek to object to the sentencing report if it is deemed inaccurate or unfair – that is why it is called a sentencing hearing. Further, “it is a reversible error for failure to present a report.” Hinton v. State, 397 N.E.2d 282 (Ind. Ct. App. 1979). Reversible error means that an appellate court can reverse the trial court’s holding to compel them to consider a pre-sentence investigation report.
What should be included in the report?
Now that we have made it over the hurdle of understanding the legal term, we can now discuss the pertinent information that should be included in the report. A few conventional factors that should be included are:
- Family history
- Educational background
- Financial information
- The willingness of the defendant taking ownership of the criminal act
- Prior criminal history
- Community involvement
- Employment history
- Physical and emotional heath
- Any prior substance abuse (alcohol or drugs)
The foregoing factors are vitally significant to determine whether the defendant will get an extremely tough penalty or a milder penalty. Any good criminal defense attorney will discuss the PSI with their client. There is real strategy in how questions are answered — and in fact, an attorney may instruct their client not to answer certain questions as well. The most important thing is that the defendant is courteous and respectful to the probation officer. They are the key to the outcome. Why? Because they will recommend to the judge what to do in the sentencing. Thus, if they like you, they will ask the judge to accept the plea or be lenient. The inverse is true as well…
As anyone can see, the PSI is a crucial instrument in any criminal sentencing. You and your lawyer should have long conversations about how best to handle the questions. Too many times we have seen sentencing hearings crumble by the actions of a defendant and their lawyer in the PSI stage. Don’t make that mistake. Give the experienced Indianapolis criminal defense attorneys at Banks & Brower a call today. Call us 24/7 at (317) 870-0019 or email us at info@banksbrower.com.