State v. Torres , 112 Idaho 801 ( 1987 )

BURNETT, Judge,

specially concurring.

I join the Court in holding that although the sentence imposed is strict, it has not been shown upon the present record to be an abuse of discretion. However, a further comment regarding the scope of the record is appropriate. As noted by the Court, the presentence investigation report is missing. This omission may or may not be the result of a tactical decision by appellant’s counsel. Such ambiguity exists because our appellate rules do not make it clear that counsel must specifically request the presentence investigation report to he included in the appellate record. Indeed, the rules may give the opposite signal.

The rules treat an appellate “record” as consisting of three parts: the reporter’s transcript, the clerk’s record and the exhibits. A presentence investigation report logically would appear to be an exhibit. Rule 28,1.A.R., provides that a “[certificate listing all exhibits offered, whether or not admitted,” must be included automatically in the clerk’s record. Rule 31 governs the exhibits themselves. It provides that “[ajll exhibits offered or admitted in a trial or proceeding ... shall be lodged by the clerk of the district court ... with the Supreme Court together with a certificate____” (Emphasis added.) These rules may be read to mean that a presentence investigation -report submitted in connection with a sentencing proceeding will be listed as an exhibit in the clerk’s certificate and will be lodged automatically with the Supreme Court.¹

However, as experienced counsel know, many clerks do not equate presentence investigation reports with other exhibits. Rather, and arguably for good cause, the clerks treat them as special, confidential exhibits. The clerks do not forward these reports to the Supreme Court in noncapital cases unless specifically requested or ordered to do so. The appellate rules do not alert inexperienced practitioners to this potential problem. Although the rules mention supplementation of the standard reporter’s transcript (Rule 25), and addition of documents to the clerk’s record (Rule 28), they do not mention specific requests for confidential exhibits.²

This Court on numerous occasions has encountered the problem of missing presentence investigation reports in appeals where sentences are challenged. Acting sua sponte, we could augment the record with a missing report under Rule 30. But generally we have done so only when it has become apparent, from references to the report in briefs or oral arguments, that the attorneys believe the report already is in our possession. The instant case was submitted without oral argument. The skeletal briefs do not cite the presentence investigation report. Accordingly, we find ourselves deciding the case upon a record that fails to disclose all the relevant facts concerning the offense and the offender.

If omission of the presentence investigation report has resulted from inadvertence rather than from a tactical decision, appellant may petition this Court for rehearing and he may accompany his petition with a motion to augment the record. Of course, I intimate no view as to whether the ultimate result on appeal would be changed. However, I urge counsel in future cases to address this problem when the appellate record is settled. Moreover, I urge our Appellate Rules Committee, and the Supreme Court, to clarify the rules by giving practitioners more explicit guidance on the recurring problem of presentence investigation reports in noncapital cases.

1 . This meaning is given explicit force in death penalty cases. Rule 28(a)(2)(L), I.A.R., provides that in such a case, "the presentence investigation report shall be forwarded as an exhibit to the record.”

2 . The gap in the appellate rules is not filled by the criminal rules. Rule 32(h)(3), I.C.R., simply authorizes disclosure of the presentence investigation report on appeal. It provides that the report "shall be available for review in courts of appeal when relevant to an issue on which an appeal has been taken.” The rule does not specify where or how relevancy will be determinated. Neither does it indicate whether the report should or should not be transmitted to the Supreme Court (under seal to protect its confidentiality) along with other exhibits in the case.