Nelson v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. Michael B. Nelson was convicted by a jury in the Circuit Court for Baltimore City of murder in the first degree and related offenses. The State did not seek the death penalty. At the penalty stage of the trial, Nelson requested that a presentence investigation be obtained.

The judge refused to order one. He imposed a life sentence and two consecutive one-year sentences. The Court of Special Appeals affirmed the judgments. Nelson v. State, No. 911, September Term, 1987, unreported, filed 28 July 1988.

We granted certiorari. The sole question presented is whether the trial court erred in refusing to order a presentence investigation. We hold that the refusal was erroneous. When, at the conclusion of the guilt stage of the trial, defense counsel requested the judge to order a presentence investigation, the State had no objection.

The judge asked: “What would be the reason for the presentence investigation?” Defense counsel explained: As you know you have the discretion whether you want to suspend any part of the life sentence. You can give life and suspend a period of time. I want you to know some things about the client. The judge expressed his feeling that the reports were extremely expensive and declared that it was not his “practice to order the report as a routine matter.” He must be satisfied that there was a “need for the report.” He said: If there is any aspect of the defendant that you cannot find out or can’t indicate to me or something of concern ⁶⁴ that requires any in depth consideration, I will be glad to order the report.

A disposition date was set. On the disposition date, defense counsel renewed his request for a presentence investigation. Again the judge inquired whether there was any particular reason. Defense counsel answered: “I think it is important the Court should know as much as it can about this particular case.” He thought the presentence report “would be more particular.” The judge admonished defense counsel to “get away from the generalities.” Defense counsel responded: Judge, if you are truly interested in this individual you know that a much more thorough investigation comes from an independent agent who is experienced and can get the background and record [of this 25 year old defendant].

The judge stated that a presentence report was not “indicated automatically.” He believed that it was indicated “only when there is some particular reason____” He demanded that defense counsel give him a particular reason. The following colloquy ensued: [DEFENSE COUNSEL]: I told you that from the time that I asked, I think this Court should have a pre-sentence report before sentencing anyone in a murder trial so that it may know everything about the person. I can’t possibly as an attorney do the job of the Probation Department it’s trained and able to do. I think that in the interest of my client it should be done and in my fifteen years of practicing law I have never known the State’s Attorney or Defense Attorney or Judge [to] turn down a pre-sentence investigation report.

You are saying that you have no interest and if that is the case anything I say to you I don’t think is going to make you have any interest. THE COURT: I am telling you that I don’t like to order a pre-sentence investigating report, it is a quite involved procedure for the expenditure of resources from the State. ⁶⁵ [DEFENSE COUNSEL]: And we have those resources available to us, under your theory we never do. THE COURT: [T]he State does not have unlimited resources. [DEFENSE COUNSEL]: Under your theory it never shows for a pre-sentence report because the lawyer is supposed to tell you the background, as I am supposed to tell you about my client. I don’t know how he did on probation when he was on probation before.

THE COURT: All you have to do is check. [DEFENSE COUNSEL]: That’s not my job. THE COURT: There is where we differ. [DEFENSE COUNSEL]: I think the Probation Department is better prepared to render a PSI. Of course, the judge prevailed in this stalemate. The bottom line of the judge’s policy regarding presentence investigations was indicated by his comment to defense counsel: “In other words, you have to do the investigation yourself.” It was only if that investigation “comes up with certain information” showing that a presentence investigation “would be helpful” would the judge order it.

The judge imposed sentence without the benefit of a presentence investigation report. Maryland Code (1957, 1986 Repl.Vol., 1988 Cum.Supp.), Art. 41, § 4-609(b) requires [t]he parole and probation agents of the Division [of Parole and Probation to] provide the judge of the court with presentence reports or other investigations in all cases when requested by any judge. Section 4-609(d) declares: In any case in which the death penalty or imprisonment for life without the possibility of parole is requested ... a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury ⁶⁶ before whom the separate sentencing proceeding is conducted____ Section 4-609(c)(l) prescribes: Prior to the sentence by the circuit court of any county to the jurisdiction of the Division of Correction of a defendant convicted of a felony, or a misdemeanor which resulted in serious physical injury or death to the victim, or the referral of any defendant to the Patuxent Institution, a presentence investigation shall be completed by the Division of Parole and Probation and considered by the court, unless the court specifically orders to the contrary in a particular case. The question presented calls for an interpretation of § 4-609(c)(l).

Once again we are faced with legislative intent. We recognize that when we seek that intent we actually attempt to identify the “general purpose, aim or policy” reflected in the statute. Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987). We accomplish this by looking at the language of the statute in the context within which it was enacted, for the “ ‘meaning of the plainest language’ ” is controlled by the context in which it appears.

Id. at 514 , 525 A.2d 628 (quoting Guardian Life Ins. Co. of American v. Ins. Comm’r, 293 Md. 629, 642 , 446 A.2d 1140 (1982). Moreover, when we pursue the context of statutory language, we consider the many aspects of what is broadly termed legislative history, in order to bring into play any “material that fairly bears on the fundamental issue of legislative purpose or goal____” Id. at 515, 525 A.2d 628 .

The [legislative] purpose, in short, determined in light of the statute’s context, is the key. And that purpose becomes the context within which we apply the plain-meaning rule [of statutory construction]. Id. at 516 , 525 A.2d 628 . The primary objective of the legislature with respect to presentence investigations shines bright and clear on the face of the laws.

It is obvious from the plain language of the statutes, when read in context of their history, that the ⁶⁷ legislature fully recognized the important role presentence investigations play in the always difficult function of imposing sentence. In capital cases a presentence investigation is compelled to be made and the report must be considered by the sentencing body. In other designated serious cases, a presentence investigation is required unless the court expressly intervenes by specifically ordering to the contrary. It seems that the legislature expected the presentence investigation to be made unless the judge had good reason to order otherwise.

The legislative policy to encourage the use of presentence investigations is apparent. Clearly the legislature intended to promote the use of presentence investigations. Even though the investigation is not mandatory in the serious noncapital cases, it can be short-circuited only by the affirmative action of the sentencing judge. Our view of the legislative policy with regard to presentence investigations is borne out by the history of Art. 41, § 4-609(e)(l).

The Division of Parole and Probation, under its various names, has long been charged with the responsibility of making presentence investigations. As far as we have been able to trace, there appears to be no specific mention of “presentence investigation” in the Maryland Code prior to 1958. Chapter 625, § 1 of the Acts of that year amended Art. 41, § 126 of the Maryland Code (1951) to read: The parole officers of the Board of Parole and Probation shall whenever feasible be available to the judges of [the circuit court of any county and the Criminal Court of Baltimore City] for the purpose of making presentence or other investigations ... as the said judges may from time to time request. In 1968, the legislature, apparently with increasing recognition of the role played by presentence investigations, enacted ch. 457.

It provided: The parole agents of the Department shall provide the judges of [the circuit court of any county, the Criminal Court of Baltimore City, or any court of limited criminal ⁶⁸ jurisdiction, including, but not limited to, the Municipal Court of Baltimore City, any people’s court or any trial magistrate,] with presentence reports ... in all cases which may include commitment for two or more years, when requested by any judge. Md.Code (1957, 1968 Cum.Supp.), Art. 41, § 124. The statute as enacted reflected a modification of S.B. 21 on which the act was based. The bill required the investigation to be made “unless requested by any judge not to provide such services in any case or cases” rather than only “when requested by any judge.” Acts 1972, ch. 532 deleted the requirement that a commitment be for two or more years to enable a request for a presentence report.

Acts 1976, ch. 118 amended Art. 41, § 124 by adding subsection (c), which read: Prior to the sentence by the circuit court of any county or the Supreme Bench of Baltimore City to the jurisdiction of the Division of Correction of a defendant convicted of a felony, or the referral of any defendant