Jan08 Advo.pmd - e-archives Home

THE ADVOCATE Volume 30, No. 1 January 2008
Practice Tip: Remember to renew a motion for directed verdict at the close of the PFO evidence.
Although the jury is only determining a question of status, it is still making a finding of
fact.
PRESENTENCE INVESTIGATION REPORTS (PSI)
Importance Of - There is not likely to be any document which will have a greater impact on the
post-sentencing life of the defendant than the PSI. The contents of the PSI will affect: the
classification the client will receive and what restrictions may come with that, what kind of work
he will be allowed to do and where he can do it, what kind of statutory credit he will receive and,
last but not least, whether he will be paroled. The PSI follows the client throughout the prison
system.
For instance, upon in-processing at LaGrange, the inmate will be classified as to custody level
(maximum, close, medium, restricted, or minimum). His classification will affect which institutions
he can go to, job assignments, cell or dorm assignments, eligibility for furloughs, and eligibility
for community-based rehabilitation and reassimilation programs. The classification is carried
out on a scoring system of different categories in which heavy reliance is placed on the contents
of the PSI. Information in the PSI can effect the client’s scores in such categories as “severity
of current offense,” “prior assaultive offense history,” “escape history,” “alcohol/drug abuse,”
and “prior felony incarceration.”
The “crime story” section of the PSI may also affect classification. For example, even if the
client pled to Robbery 2 nd Degree, which does not involve injury to the victim, the classification
officer can read the “crime story” taken from the arresting officer’s citation and determine that
an injury did occur and, on that basis, invoke KRS 197.140 to determine that the client is
ineligible to work outside the walls of the prison.
The parole board is also often more interested in the alleged facts of the case than the charge
to which the client ultimately pled. The board will even consider, against the client, the facts
surrounding charges that were dismissed, if it appears they were only dismissed as part of a
plea deal, and not because they were unfounded.
Waiving - RCr 11.02(1) says that a defendant may waive his PSI. On the other hand, KRS
532.050(1) says that a PSI cannot be waived, although it can be delayed until after sentencing
upon written request of the defendant when the defendant will not be getting released from
custody. This is not the contradiction it appears to be. On the one hand, a defendant can waive
inspection and controversion of the PSI, Alcorn v. Commonwealth, 557 S.W.2d 624 (Ky.1977),
and a court can sentence a defendant without one (although this is frowned upon, Fields v.
Commonwealth, 123 S.W.3d 914 (Ky.App.2003).) On the other hand, a PSI will be prepared in
every felony case, whether the defendant wishes to participate in the final result or not. The PSI
will be written regardless of whether the defendant reviews it. So, do not waive review of the
PSI unless the client is getting some more important benefit.
Practice Tip: PSI’s. When faced with misleading or incorrect information in a PSI, make sure
to do the following:
1) Specifically identify what should be corrected or omitted. If the PSI was prepared from the
original police reports but a jury found the client guilty of only a lesser offense, object to any
reference to allegations concerning the originally charged offense.
2) Specifically inform the court of exactly what the PSI should say instead.
3) Make a motion on the record that only the amended PSI be submitted to the Department of
Corrections. Memorialize the amendments in an order for the judge to sign, if necessary.
4) If the court denies your relief, make sure the record clearly reflects what you think the PSI
should say.
5) Offer to help write the PSI. Offer to send information to be included on the PSI if it might be
helpful to the client.
64
NOTES