Request By:
Hon. Morris Lowe
Commonwealth's Attorney
8th Judicial Circuit
1032 College Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter of May 19, 1977, which we received on May 23, 1977 in which you state: "From time to time in the Warren Circuit Court we have a defendant enter a plea of guilty and because he knows he has no chance for probation he waives the right to the filing of a motion for probation and requests to be sentenced immediately."
Your question is: "May a defendant waive his rights under KRS 532.050 and 533.010?"
In your letter you note that the statutes use the word "shall".
First we note the provisions of KRS 532.050:
(1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a presentence investigation after conviction and giving due consideration to a written report of such investigation.
(2) The report shall be prepared and presented by a probation officer and shall include an analysis of the defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits, and any other matters that the court directs to be included.
(3) Before imposing sentence for a felony conviction, the court may order the defendant to submit to psychiatric observation and examination for a period not exceeding sixty days. The defendant may be remanded for this purpose to any available clinic or mental hospital or the court may appoint a qualified psychiatrist to make the examination.
(4) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examination and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed. [Emphasis Ours].
and KRS 533.010:
(1) Any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation or conditional discharge as provided in this chapter.
(2) Before imposition of a sentence of imprisonment the court shall consider the possibility of probation or conditional discharge. After due consideration of the nature and circumstances of the crime and the history, character and condition of the defendant, probation or conditional discharge should be granted unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime. [Emphasis Ours].
Next we note one of the avowed purposes of the Kentucky Penal Code as stated in the COMMENTARY (1974) - which may be found in the CRIMINAL LAW OF KENTUCKY, ANNOTATED, 860 (1975) - to KRS 533.010.
KRS 533.010 makes two basic changes in this law [KRS 439.260; Circuit courts may postpone judgment and probate defendant; supervision of defendant]. It first requires the judge to consider probation or conditional discharge before imposing a sentence of imprisonment and does not make this subject to a request by the offender. Secondly, it provides guidelines by which the trial judge should exercise his discretion in deciding upon the disposition of an offender. [Emphasis Ours].
We would also call to your attention the recent Kentucky Supreme Court opinion of
Brewer v. Commonwealth, Ky. S.W.2d (January 14, 1977) (copy included) in which the following language appears:
The judgment entered by the trial court on January 3, 1976, was prepared on a printed form in which required information concerning the particular prosecution had been inserted in appropriate blank space. There is nothing in the judgment indicating that the trial court ordered the presentencing investigation required by KRS 532.050(1) or considered any such presentencing report or informed the defendant or his counsel of the factual contents of the report as required by KRS 532.050(4). The ordering of a presentencing investigation and consideration of the written report of such investigation is made mandatory by the statute. The court is also mandatorily required to advise defendant or his counsel of the factual contents and conclusions of the investigation and to afford him an opportunity to controvert them should they be adverse to the interest of the defendant.
Therefore, in light of the above, we are of the opinion that to permit a defendant to waive his or her rights under KRS 532.050 and KRS 533.010 is a procedure inimical to the statutes and the avowed purpose of the newly enacted Kentucky Penal Code and furthermore would be tantamount to dereliction of duty by a court in view of the Brewer decision.
For your convenience we are also forwarding you a copy of OAG 75-213 discussing the preprobation report and the time it would be considered by the Court.