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State v. Steen8/18/2000
it's what's been presented to me as something I looked at. . . . I don't know, I don't give it too much weight other than what, I guess, what points that the parole and probation officer made in the report.
It's just all information, and it's something that the Court has been presented in this case. And I've had to deal with looking at it, and weighing the credibility and giving it the appropriate weight.
[ ] A trial court has a duty to address alleged factual inaccuracies in a presentence investigation report under N.D.R.Crim.P. 32(c)(4)(E):
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or any of the information summarized, the court, as to each matter controverted, shall make (i) a finding as to the allegation, or (ii) a determination no finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of those findings and determinations must be appended to and accompany any copy of the presentence investigation report later made available to the State Parole Board or to the pardon clerk.
[ ] We have not interpreted the requirements of N.D.R.Crim.P. 32(c)(4)(E), but its similar federal counterpart has generated a significant amount of case law. See Annot., Sufficiency of federal trial court's compliance with requirements of Federal Rules of Criminal Procedure 32(a)(1)(A) and 32(c)(3)(D), that defendant has had opportunity to read and discuss presentence investigation report, and that written record of findings made in response to objections to report be appended to and accompany report, before imposing sentence, 101 A.L.R. Fed. 308, §§ 5-15 (1991). The purposes of the rule are two-fold: (1) to protect a defendant's due process right to be sentenced on the basis of accurate information; and (2) to provide a clear record for appellate review of the disposition of controverted facts in the presentence report, which, in turn, reduces the likelihood that subsequent appellate or administrative decisions will be made based on improper or incomplete information. United States v. Grant, 114 F.3d 323, 327 (1st Cir. 1997); United States v. Gerante, 891 F.2d 364, 367 (1st Cir. 1989).
[ ] Federal courts require strict compliance with the rule, and failure to comply will result in remand. See United States v. Rico, 895 F.2d 602, 603 (9th Cir. 1990); 26 Moore's Federal Practice § 632.02 (3d ed. 1997). Rule 32 does not "require a catechismic regurgitation of each fact determined and each fact rejected." United States v. Gaytan, 74 F.3d 545, 557 (5th Cir. 1996) (internal quotation marks omitted). A court may make implicit findings on disputed factual questions by accepting the government's recommendations at the sentencing hearing, see, e.g., United States v. Cruz, 981 F.2d 613, 619 (1st Cir. 1992); Gerante, 891 F.2d at 367, or by adopting factual findings in the presentence investigation report. See, e.g., Grant, 114 F.3d at 327; Gaytan, 74 F.3d at 557.
[ ] The trial court's ruling on Steen's objections to the presentence investigation report is ambiguous at best. We cannot determine if the trial court believed Steen's version or Myers' version of the factual statements made in the report, or if the court disregarded the objectionable material. The trial court failed to comply with the rule. However, noncompliance with the rule does not automatically entitle the defendant to resentencing. See Cruz, 981 F.2d at 619.
[ ] Although a district court must resolve disputed issues of fact if it intends to use those facts as a basis for sentencing, the court can
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