State of Louisiana v. Aaron S. Stogner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1272

STATE OF LOUISIANA

VERSUS

AARON STOGNER

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT
PARISH OF ST. LANDRY NO. 99D4348D
HON. DONALD W. HEBERT

**********

EN BANC

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D.
Saunders, Billie Colombaro Woodard, Oswald A. Decuir, Jimmie C. Peters, Marc T.
Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell,
Arthur J. Planchard*, Judges.

MOTION TO VIEW PROFFERED EXHIBIT #1 DENIED; MOTION TO
VIEW PRESENTENCE INVESTIGATION REPORT REMANDED WITH
INSTRUCTIONS.

Cooks, J., dissents in part and assigns written reasons.

Hon. Earl B. Taylor
District Attorney - 27th JDC
P. O. Drawer 1968
Opelousas, LA 70571
Counsel For State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P.O. Box 80006
Lafayette, LA 70598
Counsel For Aaron Stogner

*Judge Arthur J. Planchard, Retired, participated in this decision by
appointment of the Louisiana Supreme Court as Judge Pro Tempore.

PICKETT, JUDGE.

Presently before this court is a Motion to View Pre-Sentence Investigation

Report and Proffered Exhibit #1 filed by the Defendant, Aaron Stogner, with this

court on September 29, 2003. By Order signed by one judge acting on behalf of the

court, defense counsel was granted permission to review the documents (the

presentence investigation was to be amended to delete any confidential information).

The presentence investigation report was amended and counsel was permitted to

examine the documents on the afternoon of October 2, 2003.

The District Attorney sought relief in the Louisiana Supreme Court, contesting

this court’s Order granting the motion for inspection. Specifically, the State asserted

that it was denied the opportunity to respond to the motion, that the issues should have

been assigned as error in the Defendant’s appellate brief instead of raised by motion,

and that the Defendant should not have been permitted to view the documents without

remanding the case to the trial court for its consideration of the motion.

The Louisiana Supreme Court granted the State’s writ on October 13, 2003,

stating:

Writ granted. Because it appears that defendant’s Motion to View Pre-
Sentence Investigation Report and Proffered Exhibit #1 was granted by
order of a single judge of the court of appeal, it is ordered that the action
be vacated and this matter remanded to the court of appeal for
consideration of the motion by a three judge panel, after providing the
parties with an appropriate opportunity to brief the issue. State v. Will,
02-2363 (La. 9/13/02), 824 So.2d 1192; Gootee Const. Inc. v. Amwest
Sur. Ins. Co., 2000-2341 (La. 11/13/00), 775 So.2d 1044. Briefing on
the merits of the appeal is stayed pending the court of appeal’s resolution
of the defendant’s motion.

State v. Stogner, 03-2817 (La. 10/13/03), 855 So.2d 742.

On remand, this court has chosen to consider this motion en banc.

1

PRE-SENTENCE INVESTIGATION REPORT

After remand, this court gave both parties an opportunity to submit a brief

addressing the motion before the court. In brief, defense counsel argues that, by

permitting viewing of the documents, this court has preserved the Defendant’s

constitutional right to the effective assistance of counsel.

Louisiana Code of Criminal Procedure Article 877 provides:

A. The presentence and postsentence investigation reports shall
be privileged and shall not be disclosed directly or indirectly to anyone
other than the sentencing court, the victim or the victim's designated
family member as defined in R.S. 46:1842, the prosecutor, members of
the division of probation and parole within the office of adult services,
the officer in charge of the institution to which the defendant is
committed, the Board of Parole, the probation or the parole officer if the
defendant is placed on probation or released on parole, medical
authorities directly involved in the defendant's rehabilitation or treatment
if the defendant is committed to a hospital or a substance abuse program,
the Board of Pardons, and the governor or his representative. However,
this Article shall not require the disclosure of sources of confidential
information.

B. Before imposing sentence the court may advise the defendant
or his counsel of the factual contents and conclusions of any presentence
investigation report. The sources of confidential information shall not,
however, be disclosed. If the defendant contests any information
contained in the presentence report, the court shall provide the district
attorney the same access to the report as was given to the defendant or
his counsel. The district attorney may respond to the defendant's
contentions concerning the information in the presentence report.

C. The presentence investigation report, edited to protect sources
of confidential information, shall be made a part of the record if the
defendant seeks post-conviction relief only on the grounds of an
excessive sentence imposed by the court.

Louisiana Code of Criminal Procedure Article 877 does not list counsel for

defendant as a party who is entitled to view the presentence investigation. However,

the trial court may “advise the defendant or his counsel of the factual contents and

conclusions” contained in the report. Section B of Article 877 provides that, prior to

the imposition of sentence, the trial court may advise counsel or the defendant of the

contents of the presentence investigation report. Section C requires the inclusion of

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the PSI as part of the record in those cases where the defendant seeks post conviction

relief on the grounds of an excessive sentence imposed by the trial court; however, the

presentence investigation report is to be edited to delete the sources of confidential

information. Therefore, the Legislature has recognized that a defendant is entitled to

limited information contained in a presentence investigation report under certain

circumstances. We find access to information in a presentence investigation report

would be important in situations where the trial judge relies on the information

contained in the report to impose sentence and that information is false. We also

recognize that a majority of counsel that represent criminal defendants before this

court were not counsel of record at the time of sentencing. Therefore, even though the

judge may have made defense counsel privy to the information in the report prior to

sentencing, this information may not have been passed on to appellate counsel, who

has the responsibility to review the record for errors which should be raised on appeal.

Failure to permit appellate counsel to be privy to the same information provided to

defense counsel at sentencing could result in appellate counsel’s failure to pursue

sentencing issues which, if raised, are meritorious.

The fourth circuit reviewed a defendant’s right of access to the information in

a presentence investigation report at length in State v. Simmons, 466 So.2d 777

(La.App. 4 Cir. 1985). The court stated:

Article 877 of the Code of Criminal Procedure declares that the
report is privileged and shall not be disclosed except to certain
enumerated officials. Neither the defendant nor his attorney are among
those enumerated. However, the Supreme Court has held that principles
of fundamental fairness may, in some circumstances, dictate disclosure
of the contents of the report to a defendant or his attorney. To require
disclosure, it must be clear the Trial Judge is relying on the report to
guide him in imposing a fair sentence, but we can reasonably conclude
that when a Trial Judge reviews the pre-sentence report before
sentencing, it plays some part in his consideration of the sentencing
guidelines. State v. Trahan, 367 So.2d 752 (La.1978). When counsel
for defendants timely move for disclosure of the report, alleging with
particularity that it contains false information detrimental to the

3

defendant, the Trial Court errs if the contents are not disclosed and the
defendant given an opportunity to contradict or explain substantially
prejudicial information. State v. Trahan, supra.

In the instant case, counsel for defendant moved for disclosure of
the report, but did not allege that it contained false information --because
he knew of none. Of course, he had no way of knowing unless the
contents were made known to him. And because the report is privileged
save to a few, we do not know how counsel could have learned from
legitimate sources that the report might have contained detrimental false
information.

The Trial Judge told counsel he was not entitled to see the report.
When sentencing the defendant, the Trial Judge tersely said the basis of
his sentence was three of the aggravating factors listed in the Article
894.1 sentencing guidelines:

(1) There is an undue risk that during the period of a
suspended sentence or probation the defendant will commit
another crime;

(2) The defendant is in need of correctional treatment
or a custodial environment that can be provided most
effectively by his commitment to an institution; or

(3) A lesser sentence will deprecate the seriousness
of the defendant's crime.

The Judge did not say how he arrived at those conclusions, but we
presume they were based on the report. If the underlying facts included
in the report had been disclosed before the Trial Judge sentenced
Simmons, counsel might well have been satisfied and secure in the
knowledge that accurate information supports the Judge's conclusions.

But since experience shows that judges often routinely recite the
aggravating circumstances of the sentencing guidelines without
explaining how they reached their conclusions, the recitation is
meaningless unless the underlying basis is disclosed. Hence, we hold
that principles of fundamental fairness require disclosure upon request,
after the Trial Judge conducts an in camera inspection of the report,
excising only that information given in the expectation of confidentiality.
We find support for our view in the American Bar Association Project
on Minimum Standards for Criminal Justice which formulates standards
to provide safeguards against the imposition of sentences based on
erroneous information:

4.4 Presentence report; disclosure; parties.

(a) Fundamental fairness to the defendant requires
that the substance of all derogatory information which
adversely affects his interests and which has not otherwise

4

been disclosed in open court should be called to the
attention of the defendant, his attorney, and others who are
acting on his behalf.

(b) This principle should be implemented by
requiring that the sentencing court permit the defendant's
attorney, or the defendant himself if he has no attorney, to
inspect the report. The prosecution should also be shown
the report if it is shown to the defense. In extraordinary
cases, the court should be permitted to 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 has been obtained on a promise of
confidentiality. In all cases where parts of the report are
not disclosed under such authority, the court should be
required to state for the record the reasons for its action and
to inform the defendant and his attorney that information
has not been disclosed. The action of the court in excepting
information from disclosure should be subject to appellate
review.
* * * * * *

4.5 Presentence report: Time of disclosure;
presentence conference.

(a) The information made available to the parties
under section 4.4 should be disclosed sufficiently prior to
the imposition of sentence as to afford a reasonable
opportunity for verification.

(b) In cases where the presentence report has been
open to inspection, each party should be required prior to
the sentencing proceeding to notify the opposing party and
the court of any part of the report which he intends to
controvert by the production of evidence. It may then be
advisable for the court and the parties to discuss the
possibility of avoiding the reception of evidence by a
stipulation as to the disputed part of the report. A record of
the resolution of any issue at such conference should be
preserved for inclusion in the record of the sentencing
proceeding (section 5.7[a][iii] ).

This is not a novel idea in Louisiana. The Supreme Court in State
v. Owens, 377 So.2d 316 (La.1979) recommended that trial judges

5

follow the procedure suggested by the American Bar Association. See
also Joseph, Criminal Law and Procedure, The Work of the Louisiana
Appellate Courts for the 1978-79 Term, 40 La.L.Rev. 635, 658 (1980).

Id. at 779-80.1

In State v. Carrier, 453 So.2d 1216, 1217-18 (La.App. 3 Cir. 1984), this court

held that a defendant is not automatically entitled to inclusion of the presentence

investigation report in the appellate record, as follows:

In regard to the presentence investigation, defendant makes only
the following argument on appeal:

"It must also be noted that it is impossible to review the
mitigating circumstances in this matter because the
presentence investigation has not been made part of the
record."

LSA-C.Cr.P. art. 877 protects the confidentiality of presentence
investigation reports; however, it provides that "the court may advise the
defendant or his counsel of the factual contents and conclusions of any
pre-sentence investigation report." There is no requirement that the
report be entered into the record for review on appeal, nor does the
record show that defense counsel made any such request. In fact, there
is no allegation that defendant requested that the report be made part of
the record or that he be allowed access to it. Absent such a request, there
is no error in not making the report a part of the record. State v. Boone,
364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62
L.Ed.2d 31 (1979). Defendant also makes no claim that the report
contained false information prejudicial to him which would entitle him
to access. See State v. Bindom, 410 So.2d 749 (La.1982).

The second circuit has held that a defendant must make a timely request to

review the presentence investigation report before sentencing, stating:

The purpose of this constitutionally-required "access" is to afford
the defendant and his counsel an "opportunity" to deny, rebut or explain
any adverse, incorrect and prejudicial PSI or other information (even that
otherwise secret to the sentencing judge himself) to which the trial court
was exposed prior to imposing sentence in order to avoid an excessive
sentence improperly resulting from materially false information. CCrP
Arts. 875 and 876[.] Cases have construed "access" to mean
"disclosure," "access" and "to examine."

1
Although article 877 has been amended since the date of this case, it still
retains similar language concerning the rights of the defendant or his counsel to view
the presentence investigation report.
6

A trial judge is not necessarily required to allow defense counsel
access to or give him a copy of defendant's PSI. Even if failure to
provide defense counsel with PSI report was error, where adverse report
information was provided to defense counsel and the report contains no
adverse information not given to defense counsel that could logically
form the basis for or be subject to challenge by a motion to traverse, the
error was harmless. Where, however, a trial court fails to allow a
defendant access to the report and an opportunity to rebut any adverse
and materially prejudicial information, reversible error has occurred.

While a defendant is guaranteed the right to contest allegations
and statements in a PSI report and additional information to which the
sentencing court was exposed, defense counsel must make a timely
request prior to sentencing for access to the PSI report and must make
some showing that the report contains, or other information upon which
a trial court relies in imposing sentence consists of, materially false or
misleading information prejudicial to the defendant.

Thus, while sentencing procedures must meet due process
requirements, those requirements are met by permitting the defendant
access and an opportunity to rebut or explain prejudicial or erroneous
information included in a PSI. Due process does not necessarily require
a full-scale presentence evidentiary hearing.

State v. Coleman, 574 So.2d 477, 480-81 (La.App. 2 Cir. 1991) (citations omitted);

see also State v. Wood, 34,819 (La.App. 2 Cir. 8/22/01), 793 So.2d 441, writ denied

00-3264 (La. 8/24/01), 795 So.2d 335.

In State v. Lanieu, 98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied,

99-1259 (La. 10/8/99), 750 So.2d 962, the defendant alleged that the trial court

improperly denied him access to the presentence investigation report, even though he

had requested the opportunity to review it prior to sentencing. The first circuit denied

relief on the basis that the defendant had failed to allege that the information the court

relied on in arriving at the sentence was false.

Although these cases concern a defendant’s denial of the right to access to the

presentence investigation report prior to sentencing, we find the reasoning set forth

is applicable to the issue before this court.

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We conclude that a defendant does not have the absolute right to review the

presentence investigation report; however, under certain circumstances he is entitled

to at least know the information contained in the presentence investigation report.

Having so found, we must now decide who is in the best position to decide whether

defense counsel should be given access to the information in the presentence

investigation report for appeal purposes.

Any motion submitted to this court, seeking to obtain access to the information

in the presentence investigation report, would appropriately be made during the

preparation of appellant’s brief, prior to the issues for review by this court being

assigned. Louisiana Code of Criminal Procedure Article 877(C) requires that the

presentence investigation report, edited to delete confidential sources, be placed in

the record if excessive sentence claims are raised. Errors are not assigned by counsel

prior to the lodging of the appeal with this court. Therefore, the trial court’s clerk’s

office is not in a position to determine whether the presentence investigation report

should accompany the appeal record. Furthermore, the record filed with this court

may not provide information which would be helpful in determining whether appellate

counsel should be permitted access to the information in the presentence investigation

report, such as whether the sentencing court advised defendant or his counsel of the

contents of the presentence investigation report prior to sentencing and the extent to

which the sentencing court relied on the information in the report in arriving at the

sentence. These are all factors which should be given consideration in ruling on a

motion to view or have access to the information in the presentence investigation

report. Therefore, we find the sentencing court is in the best position to make the

determination of what information counsel should be privy to in preparation of his

appellate brief and we will remand the case for its consideration of the motion.

PROFFERED EXHIBIT # 1

8

The State also challenged this court’s Order granting defense counsel

permission to view evidence which was proffered at the Defendant’s post conviction

hearing wherein he sought, and was granted, an out-of-time appeal. This hearing was

held on July 29, 2003. At that hearing, the Chief Public Defender, Edward Lopez,

testified concerning the procedure followed in St. Landry Parish regarding habitual

offender bills. Basically, he testified that the assistant district attorney who wishes to

seek a multiple offender adjudication against a defendant must request permission, in

writing, from the district attorney by submitting a memo explaining why a particular

defendant deserved to be multiple billed. If a memorandum is prepared, the district

attorney will give defense counsel an opportunity to explain why the defendant should

not be multiple billed. The defense counsel also called the district attorney’s

representative, Donald Richard. During his testimony, defense counsel questioned

whether a memorandum seeking permission to multiple bill the Defendant was filed

in this case. Mr. Richard stated one was submitted and was contained in their file.

Defense counsel moved to introduce the memo, the State objected and the trial judge

sustained the objection. The defense proffered the evidence, indicating that it goes

toward the possibility of prosecutorial misconduct based on misstatements of facts

within the memo. The judge permitted the proffer, stating:

I am going to seal this proffer from public view in that I find that it’s an
internal decision making process of the District Attorney’s Office, and
as a result, I am going to seal from public view that proffer and if the
Court of Appeals wishes to do something else, that of course, is their
prerogative.

On appeal and in preparation of the defense brief, appellate counsel for the

Defendant asked to view this proffered evidence. The State contends that the

proffered exhibit is work-product of the district attorney’s office and the admissibility

of this evidence should be addressed by an assignment of error. The State further

contends that, by permitting the defense attorney the right to view this evidence, it

9

requires this court to resolve the question concerning the admissibility of the evidence

by motion, which would be improper. We need not reach the evidentiary issue. The

evidence in question was proffered at an evidentiary hearing held on the Defendant’s

application for post conviction relief. The sole issue raised in the application alleged

ineffective assistance of counsel for counsel’s failure to move for an appeal. The

relief sought by the Defendant was the reinstatement of his right to appeal. Without

consideration of the evidence at issue, the trial court granted the application and

ordered an out-of-time appeal. The State did not seek review of the trial court’s

ruling. In fact, the case is currently before this court on appeal. Therefore, the

proffered evidence is no longer relevant to any issue pending before the court.

Accordingly, defense counsel’s motion to view this evidence is denied.

CONCLUSION

We deny defense counsel’s request to view proffered exhibit #1. As to defense

counsel’s motion to view the presentence investigation report, we remand this case to

the sentencing court for consideration by it of that part of the motion filed by defense

counsel addressing the presentence investigation report. The sentencing court should

decide what information in the presentence investigation report appellate counsel

should be made privy to, if any, and shall provide this information to counsel. This

motion should be considered and, if granted, appellate counsel given a time and place

for obtaining the information, without undue delay, but in no event not later than

twenty days from the date of this opinion. Upon completion, the trial court shall cause

to be lodged with this court a supplemental record which shall contain its ruling on the

motion. This supplemental record should be filed with this court within five days of

either the trial court’s ruling on the motion or satisfaction of the trial court’s ruling on

the motion, whichever is later. Upon receipt of the supplemental record, briefing on

the appeal will resume.

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We recognize that in this case, defense counsel has already viewed the redacted

presentence investigation report and the proffered exhibit #1. Therefore, we order

counsel to limit her discussion on appeal, with regard to the information contained in

the presentence investigation report, to only that information which the sentencing

court permits her to review. Furthermore, counsel shall refrain from referring to any

information she may have become privy to as a result of this court’s prior Order

granting counsel permission to view the proffered exhibit #1.

MOTION TO VIEW PROFFERED EXHIBIT #1 DENIED; MOTION TO
VIEW PRESENTENCE INVESTIGATION REPORT REMANDED WITH
INSTRUCTIONS.

11

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1272

STATE OF LOUISIANA

VERSUS

AARON STOGNER

**************
APPEAL FROM THE TWENTY- SEVENTH JUDICIAL DISTRICT
PARISH OF ST. LANDRY NO. 99D4348D
HON. DONALD W. HEBERT
**************

EN BANC

**************

Cooks, J. dissents in part.

The majority’s position that defendant does not have the absolute right to

review the presentence investigation report except under certain limited circumstances

and only to a limited extent is too restrictive to protect defendant’s constitutional right

to due process and fairness at every stage of the criminal proceeding. There is no

rational basis for the State to grant the prosecutor the right to review the presentence

report at any stage of the proceedings without any restrictions and to deny the same

access to the defendant. Any interest the State may have in protecting the sources of

confidential information contained in the reports have been addressed in Louisiana

Code of Criminal Procedure Article 877. See State v. Simmons, 466 So. 2d 777 (La.

App. 4 Circ. 1985); State v. Owens, 377 So. 2d 316 (La. 1979). Why the majority has

elected today to turn the criminal justice clock back in time is baffling to me,

particularly considering that the Louisiana Supreme Court nearly twenty-four (24)

years ago recommended that the trial judges follow the procedure suggested by the

American Bar Association. The Association has long recognized that fundamental

fairness requires inspection of presentence reports by defendants, except under certain

limited circumstances and even then the court should state for the record the reasons

for its action which should be subject to appellate review.