People v. Valencia , 19 Brief Times Rptr. 1614 ( 1995 )

Justice SCOTT

delivered the Opinion of the Court.

The People asked that we review the judgment of the court of appeals in People v. Valencia, 888 P.2d 319 (Colo.App.1994). We granted certiorari to determine whether a trial court can use a presentenee report that fails to contain information required by law to sentence a defendant.¹ In Valencia, the court of appeals vacated the sentence and remanded to the trial court “for the compilation of a presentence report in conformance with § 16-ll-102(l)(a) and, subsequently, for the resentencing of defendant.” Id. at 321. We conclude that section 16-11-102 permits the trial court to waive portions of the pre-sentence report; however, the trial court must provide a justification for its waiver prior to imposing sentence. Therefore, we affirm.

I

Because Adam G. Valencia participated in the armed robbery of a taxi cab driver,² he was charged with attempted aggravated robbery,³ attempted first-degree murder,⁴ and three counts of first-degree assault.⁵ In accordance with a plea agreement, on May 27, 1993, the defendant entered a plea of guilty to one count of first-degree criminal assault; consequently, the People dismissed the remaining charges. The trial court accepted Valencia’s plea and set the matter for sentencing.

On July 9, 1993, Valencia appeared with counsel for sentencing. At that hearing, Valencia’s attorney informed the court that Valencia was 18 years old and that he had no prior criminal record. During the sentencing proceedings, Valencia’s attorney also informed the court that the presentence report did not contain family background and related information enumerated in section 16-11-102(l)(a), 8A C.R.S. (1995 Supp.).⁶ The pre-sentence report was incomplete, at least in part, because the defendant declined to provide certain information to the probation department.⁷ The presentence report did not include family background, educational history, and employment record information. Defense counsel requested a continuance of sentencing in order to allow the probation officer to complete the presentence report. The trial court denied Valencia’s request, stating that it did not need the missing information in order to impose a sentence. Nonetheless and without a complete presentence report, the trial court imposed a twenty-year sentence.

The defendant appealed his sentence to the court of appeals. He argued that the trial court’s denial of his request for a continuance and its reliance upon an incomplete presentenee report constituted error and required that his sentence be vacated. The court of appeals reversed and vacated the sentence.

II

A

Section 16-ll-102(l)(a), 8A C.R.S. (1995 Supp.), requires the preparation of a presen-fence report prior to the imposition of sentence. People v. Wright, 672 P.2d 518, 521 (Colo.1983). Section 16-ll-102(l)(a) provides in relevant part:

Following ... a plea of guilty ... the probation officer shall make an investigation and written report to the court before the imposition of sentence. Each presen-tence report shall include a substance abuse assessment or evaluation made pursuant to article 11.5 of this title and, unless waived by the court, shall include, but not be limited to, information as to the defendant’s family background, educational history, employment record, and past criminal record; an evaluation of the alternative dispositions available for the defendant; the information required by the court pursuant to section 16-11-204.5; a victim impact statement; and such other information as the court may require.

By its terms, section 16-ll-102(l)(a) requires the preparation of a presentence report “before imposition of sentence.” It also sets forth specific information that must be included in the report, i.e., family background, educational history, employment record, and other information, “unless waived by the court.” It is the language of section 16-11 — 102(l)(a) that informs our review here.

When interpreting statutes we must give full effect to the intent of the legislature. Chames v. Boom, 766 P.2d 665, 667 (Colo.1988). To determine legislative intent, we look first to the words used. People v. Warner, 801 P.2d 1187, 1190 (Colo.1990). The words and phrases used must be read in context and accorded their plain and ordinary meaning. § 2-4-101, IB C.R.S. (1980); Bertrand v. Board of County Comm’rs, 872 P.2d 223, 228 (Colo.1994); Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994).

B

The information provided in a presentence report is of great importance to the trial judge’s ultimate sentencing decision. Wright, 672 P.2d at 521. This fact is ensconced in section 16-ll-102(l)(a), which requires that the “probation officer shall make an investigation and written report to the court before the imposition of sentence.” (Emphasis added.)

The plain language of section 16-11-102(l)(a) makes clear that the General Assembly did not consider the form of a presen-tence report an absolute requirement. Instead, the General Assembly granted the trial court discretion to waive certain requirements of the presentence report. Section 16-11-102(1)(a) expressly provides that “[e]ach presentence report ... unless waived by the court, shall include ... information as to the defendant’s family background, educational history, employment record, and past criminal record_” The statute permits a court to waive the enumerated information otherwise required in the presentence report. The statute, however, does not provide guidance as to the exercise of that discretionary authority.

Our statutes provide and we have previously held that a defendant has the right to appellate review of his sentence “and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.” § 18-1-409(1), 8B C.R.S. (1995 Supp.) (emphasis added); see also People v. Home, 619 P.2d 53, 59 (Colo.1980). An appellate court cannot determine whether the sentence imposed upon a defendant is proper and within the trial court’s discretion without specific findings. Horne, 619 P.2d at 60.

The plain language of section 16-11-102(l)(a) grants the trial court discretion to impose sentence without certain information otherwise required in the presentence report. However, the exercise of that discretion is not absolute and is subject to review by an appellate court for abuse of discretion. In order to determine whether the trial court abused its discretion when it waived the inclusion of information otherwise required in a presentence report, a reviewing court must have a record that indicates the trial court’s justification or rationale.

The instant case reflects an unclear exercise of discretion. Although the trial court decided to impose sentence using an incomplete presentence report, it did not indicate its basis for doing so. If the trial court imposed sentence because the information regarding the defendant’s education, employment history, and family background was available from a source other than the pre-sentence report, then the imposition of sentence would be sustainable. Likewise, if the defendant knowingly refused to cooperate with the probation officer’s investigation and preparation of a complete presentence report, a trial court could not be faulted for proceeding with an incomplete report. However, the record here does not provide an explanation for the trial court’s, willingness to impose sentence without a presentence report disclosing family background, educational history, and employment record.⁸ Without its justification for proceeding, we cannot determine whether the trial court acted in accordance with the discretion granted by section 16-ll-102(l)(a).

When a trial court exercises its authority to waive the requirements of section 16-11-102(1)(a), it should set forth a sufficient basis or justification for its decision on the record, thereby, permitting adequate review on appeal. While a sentencing judge has wide discretion, that discretion is not unlimited and “the record must establish a clear justification for the trial judge’s action.” Horne, 619 P.2d at 59. Because the trial court did not set forth its basis for waiving the presentence report, it is not possible to conduct a review of its action and determine whether the trial court abused its discretion. The trial court failed to make the requisite findings that would permit a review of its ruling. We therefore conclude that its waiver of certain information otherwise required in the presentence report is ineffective.

Ill

Accordingly, we affirm the judgment of the court of appeals vacating the sentence of the trial court. We return this case to the court of appeals with directions that it remand the case to the trial court with instructions to conduct further sentencing proceedings consistent with the views expressed in this opinion.

VOLLACK, C.J., dissents, and ERICKSON and KOURLIS, JJ., join in the dissent.

ERICKSON, J., dissents.

1 . Our order granting certiorari set forth the following question for briefing and argument before the court: "Whether the plain language of section 16-11-102(l)(a), 8A C.R.S. (1994 Supp.), gives the trial court discretion to waive certain information otherwise required in a pre-sentence report.”

2 . Defendant, along with two accomplices, shot and robbed a taxi cab driver on February 21, 1993. Although shot twice and critically injured in a senseless crime, the cab driver survived the assault.

3 .§§ 18-2-101 and 18^1-302(b), 8B C.R.S. (1986).

4 . §§ 18-2-101 and 18-3-102(l)(b), 8B C.R.S. (1986).

5 . § 18-3-202, 8B C.R.S. (1986).

6 . The sentencing hearing consists of eleven pages of transcript. During the hearing, Valencia’s attorney attempted to call upon Valencia’s mother and step-father to provide information to the court before imposing of sentence. At that time, the following colloquy occurred:

THE COURT: I don’t take testimony at sen-tencings, Mr. Hammond. You practiced in here day in and day out for three years. You ought to know that by now.

MR. HAMMOND: Your Honor, I'm not asking for you to take testimony.

THE COURT: Look, the law requires me to let you say your piece, let the client say his piece, let the DAs say their piece, and the victims say their piece, and that’s what I do in each and every case, Mr. Hammond. So go ahead and tell me what you want to tell me.

MR. HAMMOND: I understand that, Your Honor. I’m trying to supplement the presen-tence report, to the best of my ability.

THE COURT: Go ahead.

MR. HAMMOND: I'd like to call Mr. Valencia.

THE COURT: I don’t need to hear it from somebody else. You’re his lawyer.

MR. HAMMOND: I can't tell what the guy did for the first 17 years of his life. That's why I’m asking for his parents to address the Court. If the Court wants to deny that, that’s fine.

THE COURT: I thought I already did.

(Emphasis added.) From the limited record before us, it appears that the court was aware that Valencia wanted to provide information concerning his family background, educational history, and employment record. However, the court refused to allow witnesses to testify or potential witnesses to make statements. Apparently, the trial judge would only accept information from the attorney who candidly admitted that he did not know what Valencia had done during his life.

7 . Defense counsel explained to the court that Valencia misconstrued his attorney’s instructions. Counsel stated that Valencia misunderstood counsel's admonition not to discuss his case with others as directions not to cooperate with his probation officer. As a result, Valencia withheld background information that should have been in the report. Although Valencia’s original effort to withhold information had been intentional, he was prepared to cooperate and provide the information necessary to complete the presentence report.

8 . Although the court was provided a letter disclosing some family information, the record is unclear as to whether the court reviewed the letter before imposing sentence.