Vermont Legislature SmartTranscripts:

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: We are live.

[Rep. Martin LaLonde (Chair)]: Hi, welcome back to the House Judiciary Committee this Thursday afternoon, April second, and we're turning our attention to S-one 181. We're gonna start with the Department of State's attorneys and sheriffs. I'm gonna explain how wonderful this bill is. I'm sorry. It's way too early in the session to be this punchy. I will have to say that.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: It's okay. You've had a long day. Been a long week.

[Rep. Martin LaLonde (Chair)]: It's an early day. So anyway, sorry.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: For the record, Kim McManus with the Department of States Attorneys and Tariffs, the purpose of this bill S-one 181 is to remove the requirement for a pre sentence investigation for deferred sentences. So to back up a little bit, a defendant may come to a deferred sentence two ways. One, the parties might agree to it. So state's attorney and the defendant agree and sign a written agreement and present that to the court. And the way the current statute is written, a pre sentence investigation report is filed with that agreement. The court needs it before it can move forward with a deferred sentence. There are other situations, and I won't get into the types, but essentially lesser offenses where the court, on its own discretion, can order a deferred sentence and without any agreement, but from the state's attorney. In those situations, a pre sentence investigation is ordered unless the state's attorney waives that and says, We don't need that in this situation. Essentially, the changes in this bill remove the have to have the pre sentence investigation when the court moves forward with a deferred. And then when there's an agreement to the deferred by the state's attorney and the defendant, the pre sentence investigation would be ordered unless, again, the parties agreed that they didn't have to happen. So for a listed crime, there would be a PSI still unless the defendant and the state's attorney agreed we do not need the pre sentence investigation.

[Michelle Tout (Office of Legislative Counsel)]: Can you explain what a pre sentence investigation is?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: I can. So the Department of Corrections, we can go more into depth on it. But essentially, Department of Corrections looks at the here, they're referred to as the respondent, but usually you think of them as the defendant, would look at what they've been charged with, would look at criminal history, would talk to the victim, would look at other maybe socioeconomic factors, and would see, would recommend potentially what probation conditions would be appropriate, or if this was a sentence in a PSI, you might hear what programming would be available from correction. So it's a background piece of information so that when you went to sentencing, parties in the court could look at the pre sentence investigation to have more information about what an appropriate sentence might be from the perspective of the Department of Corrections. So I will tell you down when this was offered in the Senate as introduced, it essentially just took the PSI out. It was like, this is no longer a requirement. Our department did not initially appreciate that our ability to waive it was just taken away. Essentially, said it works the way it works right now, that we can say it's not needed. And when we think it's needed, we would like it to be the presumption that it's being ordered. Some language has changed in the Senate. And that's the first page, line 12 through 14. And so that made it so that both the state's attorney and the respondent could agree to waive it. So we appreciate that.

[Rep. Martin LaLonde (Chair)]: So it's only for listed crimes.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: It's only for listed crimes. So for non listed crimes, the way it's written now, the presumption is that one isn't needed. Something that came up down in the Senate is that the court can always order a pre sentence investigation if they feel it's appropriate and that we can rely on that. There was a conversation by email between Jay Johnson, myself, Chief Zonay, and the Defender General to suggest some language that would appear after number two, it would be number three, right about line 15 on page one.

[Rep. Martin LaLonde (Chair)]: And just real quickly, I emailed that language to everybody. You have that Great.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: And that would just clarify that if the offense is not a listed crime as provided in subdivision 53,017 of this title, court may, at its discretion, order a pre sentence investigation. And we would appreciate the addition of that language just to make it clear that these can be ordered in non listed offenses and that there's not an assumption that they're not because we're being very specific about the listed offenses. So we would appreciate that addition. Otherwise, we have no objection to the bill as written. Sorry, I'm didn't probably getting it here either. So

[Michelle Tout (Office of Legislative Counsel)]: what is the downside of like, why do you wanna get rid of it in some cases? Is it the timing piece of it? So this is not necessary because it's likely gonna gonna be deferred and you don't need to. I'm trying to understand what is the problem that we're trying to solve.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: So that was a question I asked down in the Senate because, again, we knew that there was a problem. So this is not coming from our department. We did not say that there was an issue. What came up down in the Senate, and I believe why this was proposed, was that there has been happened feedback or comments from the Defense Bar that this does slow things down, that they're moving forward and going, oh, wait, we need to do the PSI. PSI takes about approximately thirty days on there, maybe longer, maybe shorter, depending on the county. And then the do we need it, especially for lesser offenses. So that was the conversation, and I believe that's why it was raised. Having checked in with my department, we feel this covers that when we want to argue for it or not agree to it, that covers when we creates some flexibility. But it creates more flexibility. Current statute is essentially a given unless the state's attorney waives. And so this now creates more flexibility forever. Great. Thank you.

[Rep. Martin LaLonde (Chair)]: Any other questions for Kim? Pretty straightforward. All right, great. It's been shaped already. It's good for all those clarifications from your very wise questioning. Good, great. Thank you. So we're very marveled. Next, if you can join us, Gary. Good afternoon. Good afternoon. Thanks for being here.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: No problem. Thank you. My name's Gary Marble, deputy director of field services for the Department of Corrections. Should just go into our position on this, Bill?

[Rep. Martin LaLonde (Chair)]: Yeah. That and and if I could provide a little further explanation about how the pre sentence investigation work for us done and such, I think that would be helpful for sure.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: And just for some background, I I've helped develop the pre sentence investigation training, developed a standard in the sex offense pre sentence investigation. I used to be the trainer on the sex offense specific pre sentence, which is a little bit more robust than our standard one for reasons related to psychosexual risk and whatnot. So the position we have is that essentially this is kind of moving in the wrong direction. One of the things that's really critical about PSI is that it allows the court and really anyone involved to see the person behind the offense. The concern I have is that we're moving more towards supervising the offense rather than the person who's committed the crime. The PSI really flushes out people's background, their history, their individual risks, their individual strengths, their relationship to the victim. All of this is not necessarily known in any other mechanism. And also, by removing this, it just moves us farther away from being able to give the victims a position that has to be heard by the court. And there's already an avenue for the court to, as you've heard, to not have a PSI. Making it automatic will just reduce the number of cases. As far as this being only relative to deferred cases and deferred probation cases and non listed, well, a few things about that. One, deferred cases often, I don't know the exact numbers, they often evolve into a case that loses its deferment status. There's no really going back and getting that information once that person's kind of in the system, at least I haven't seen that. It could evolve into a probation case. It can evolve into a two serve case. The other thing that's worth understanding is that non listed crimes often start as listed crimes when they're initially charged. So the severity of the crime is captured by the ultimate conviction. That might be any number of reasons that results in the case being pled down to a non listed crime. Essentially, what we see is that this is really a way for the court to be informed how to make a best decision around what conditions are appropriate, what type of programming is appropriate, and really how those needs are met so that we can provide compassion and supervision and oversight in the community of people that we're gonna have in our care. And the big one for us too is, of course, like I said, I don't know of any other mechanism for the court to really hear the victim's side of things. And there often are victims in cases that are non listed, and deferred probation is not an exception to that. I wouldn't be surprised if the majority of deferred cases, I don't know for certain, but I started at a higher level. It's certainly very likely that that's the case. So I think this just moves us in the wrong direction. That's why we we don't support the the move. So, yeah,

[Rep. Martin LaLonde (Chair)]: so Department of Corrections doesn't support that. Yeah. Go ahead. Don't victims have an opportunity to give victim impact statements at sentencing?

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: Yeah. I think it's really critical to embed it in the record in a way that people are gonna see it throughout the course of the case, because the victim's role is often going to be still involved in that individual's life. They may have been strangers, but they're often not. When I got a case as a probation officer, the first thing I look at is the PSI, because that sort of tells the story of how we got here and the victim's role in the relationship. There's offense patterns to take into consideration, like where that person was at in their life leading up to the offense. So I want to kind of know all of that in relation to the victim, because it's It's going to be how I make decisions depending on the conditions, whether or we're going to allow contact, expand contact, restrict it. So I think it's an enduring relationship and process. And I think this record really helps us to see that clearly. Granted, yes, they can provide a victim statement. I don't think the victim statement alone is enough. I think understanding the dynamic and the relational dynamic is very critical. Angela?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Hi, I have two questions, and they're sort of for anyone, maybe. But can you explain a different sentence? And

[Rep. Angela Arsenault (Member)]: Oh, is there like a form? Can we see a PSI? I

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: don't have one now.

[Rep. Martin LaLonde (Chair)]: Yeah. I can give

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: you the rundown of what it mostly covers. Might not Just catch you with

[Kim McManus (Department of State's Attorneys and Sheriffs)]: to know if there is a standard, if there

[Rep. Angela Arsenault (Member)]: is some standard information and then additional information, what kinds of information are we saying we don't need to include?

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: It's very standardized. The standard form, it sort of covers, see if I can get all of it. You're gonna look at employment, you're gonna look at previous crimes that they've been charged with or committed, DCF history if it's involving a sex case. I should probably separate out the standard versus the sex offense one. The standard one doesn't get into any kind of psychosexual type stuff, of course. But it's still gonna give you some history of where they're from, their family, their supports, previous criminal involvements with the court, financial circumstances, which that is often really much more important than people realize in terms of trying to help stabilize. It provides the recommendations around conditions, why we have criteria for that, and it gives the court our insight into what conditions seem appropriate. It's not arbitrary. All the current conditions that we recommend are evidence based. We went through a painstaking process to determine what an appropriate condition is based on someone's risk scores. That's another piece, is the assessments that we used let the court know what the criminogenic risks are. There are eight different criminogenic risks that we take into consideration. Then you have the sex offense PSI, which has all of that in addition to information from a psychosexual evaluation, which gets into offense pattern if there is one, any sort of distortions in thinking that might be relevant to treatment. Incorporates the psychosexual evaluation so the two pieces speak to each other. So the court is aware of how these things would impact, how the legal decision will impact treatment and how treatment might play out with supervision. As far as the deferred operation, I can't tell you the legal thing. Leave that to the state's attorneys to But I can say operationally, what we've seen is that essentially when the deferred is successfully completed, if they don't lose the deferment status, the conviction record goes away. I think that's probably the most critical piece as far as we see.

[Rep. Angela Arsenault (Member)]: Okay. That's really helpful because what you've just described is really different from what I would have just inferred based on the phrase, pre sentence investigation. It sounds more like a profile.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: So it's a report. It's a pre sentence report that really provides I I think the initial intention was so that the court's better equipped to sentence people. Yeah. Really, to give them what they need so that they'll be successful and so that public safety is ensured as best we can.

[Rep. Angela Arsenault (Member)]: Right. And so the argument against the PSI is just that it takes too much time?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: What was the process or momentum?

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: Yeah. And I can respect that. But if anything, I think we support expanding it. There have been many cases where the process that is currently in play, where everyone kind of gets together and decides a PSI isn't necessary, kind of bites us later on when we're trying to excavate the person's history and it's very difficult to acquire later in the process. There's also been many times where we've had to go back to court and ask for a modification in conditions where think we would have had a better insight into what conditions were appropriate and whether or that was gonna be a red flag for us down the line if we had gone through our normal process ahead of time. When there is no PSI, we have essentially no relationship to the case right before they show up after they've been given their probation order, deferred or otherwise. So they just show up and it's like, Hi, nice to meet you. We're going be part of your life for the next five, ten years, whatever it is, maybe just a year or whatever. Doesn't really So It's not really conducive to developing the sort of relationship we want to have for stability.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Because with the PSI, would it be

[Rep. Angela Arsenault (Member)]: Who's conducting that? This is through conversation with the offender.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: Yeah, it's typically the officer who It's not untypical for it to be the officer that's gonna be the supervising officer. Not always. Larger officers, that isn't always the case. And sometimes it's logistically not possible, but it's often the case, especially with the sex offense ones. Because like I've emphasized, the history is more than critical in those cases, and understanding the individual to support them is absolutely critical. If the I just want to emphasize too, especially if the victim is going to have a role at some point in that person's life, that's not always going to be the case, of course. But if it was any kind of crime where I mean, for example, domestics is often a situation where it was a family member. It was sexual crime softened by a family member. And at some point, if conditions allow, we're going to be having a process where we figure out when it's safe and appropriate for them to have the content if we're part of making that decision, assuming the conditions are allowed for that. So it really gives us what we feel we need in order to do that in the best way possible.

[Rep. Martin LaLonde (Chair)]: So our pre sentence report or investigative reports, investigation reports, are done for somebody who will be put on probation or incarcerated? Whatever they're ordered. Yeah. So it's done in those other scenarios all the time? Not all

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: the time. No. It's whatever they're ordered. So, again, like I think with the sex offender, with many crimes, don't actually know exactly which ones have to have one, but there's always an opportunity for the court to be able to agree that they're gonna waive it. But the more often we receive them, the better we're informed when the case starts. It could be for a to serve. It could be for a split probation case, a deferred probation case, or a probation case.

[Rep. Martin LaLonde (Chair)]: So is it just with the deferred sentences, current law, that they always have to be done? Unless the court says they don't have to be done?

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: I actually would have to defer to the state's attorney who's present here to say that. I don't know if they're required for every single deferred case. I'd have to ask someone else.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Chief Sonny is the best person to

[Rep. Martin LaLonde (Chair)]: My understanding is that

[Kim McManus (Department of State's Attorneys and Sheriffs)]: we can feign for felonies. We have a choir and not in the space, but I would to double check-in the sentencing. Is that cheap? It's not easy to know.

[Rep. Martin LaLonde (Chair)]: Yeah, yeah, it's both of them. So, all right, any other questions for Gary? No, that's it. Thank you very much.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: Thank you

[Rep. Martin LaLonde (Chair)]: for your help. I do have another question for Kim. Oh, sorry. Yeah, so Kim, I have a question, a follow-up, just to make sure I understood something. So the position of the Department of State's Attorneys on this panel sounded like this is not something you asked for. Is this something you all want? Are you fine with the way things work right now?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: We don't oppose this. This wasn't our suggestion. We weren't asking for it, but we're not putting any opposition at this time.

[Rep. Martin LaLonde (Chair)]: So, but not support either, one way or another? Or I mean, does this need to be done? Oh yeah, I am just

[Kim McManus (Department of State's Attorneys and Sheriffs)]: trying I think you'd have different opinions within our department. Oh, okay, okay. I think there's a variety of opinions. Do want to state just to back up, and I apologize, I didn't do a very good walkthrough. So for a deferred sentence, we often refer to these as the high risk, high reward offer. And we'll use the most extreme example, sexual assault. Your exposure is three years to a life sentence. You could be offered a deferred sentence, which might be two years deferred, might go a little higher up, three or four. Every now and then, we do a longer deferred. That's not as usual. But it essentially is you've pled guilty in court, and then the judge defers your sentence for whatever the amount of time is. So we'll say three years. During that three years, you're on probation. And if you violate those conditions and you're found to have violated those conditions, then the court imposes the sentence. So at that time, you then have your sentencing, and then your exposure is three years to life. That's the big risk for someone. So one violation leads to sentencing? If the court finds that you violated the deferral, then yes. In the example given, even with the amended language, that's a listed offense. We would have to agree with the defendant not to do a PSI. And for sexual assault, there's a whole other battery of testing as sixth wave, and there's a whole other set of sex offender sexual probation conditions. It would be hard to think of an example where we would waive that because the PSIs can be very informative and very helpful for both sides in arguing at sentencing, if we want to get sentencing, having that as a wealth of information. So for those listed offenses, there has to be a really good reason why we would be waiving that. And the way this is structured, we would have to agree to waive it.

[Rep. Angela Arsenault (Member)]: Would you have an opportunity, you waived it, say it's not a listed prime, if presumption is no PSI,

[Kim McManus (Department of State's Attorneys and Sheriffs)]: and then there is a violation and the person is going to be sentenced, could the court then order a plea? I believe so. Yes. I don't I don't think there's any like, oh, you've missed your chance. If mean, think ran into that situation the sequence of events. Right. And that is where, I absolutely agree with the Department of Corrections, it's nice to have it done. It's there. But circumstances also change in a year and a half, saying when that violation happens. But if it's a non listed offense and we are then going to sentencing, again, the way it's written right now, we could argue to the court that a PSI is needed, and the court would have discretion to order that.

[Rep. Martin LaLonde (Chair)]: Good. Well, thank you. Thank you to the additional information. We'll go to Judge Zone next. Judge, if you can join us.

[Judge Tom Zonay (Chief Superior Judge)]: Good afternoon, Tom Zone, Chief Superior Judge.

[Rep. Martin LaLonde (Chair)]: I'll

[Judge Tom Zonay (Chief Superior Judge)]: take the easy one first. Representative Arsenault, yes. If there is a violation that takes place, let's say a year or two after someone has a deferred sentence, if there was an original pre sentence investigation, the court's gonna wanna know what happened since. And so the court we can order it and go from there. We support this bill. It does not remove the ability of the court to request a pre sentence investigation in any case. What it does is it just doesn't require it in every case. Significantly, the bill requires it in listed offense to get information in those types of cases that are serious listed offenses. The state would have to waive it, and the judge would have to agree not to get it. And I'm just gonna run through the offenses to let you know how comprehensive that list is of where it's not waived. Stalking, aggravated stalking, domestic assault, first degree aggravated domestic assault, second degree aggravated assault, sexual assault, aggravated sexual assault, incivious conduct, murder, aggravated murder, manslaughter, aggravated assault, assault and robbery with a dangerous weapon, arson causing death, assault and robbery causing bodily injury, maiming, kidnapping, unlawful restraint, reckless endangerment, violation of abuse prevention order operating under the influence with death or serious bodily injury, negligent or gross negligent operation resulting in serious bodily injury, leaving the scene of an accident with serious bodily injury, burglary into an occupied dwelling, any attempt to commit any of the offenses listed in the section, abuse, abuse by restraint and neglect, sexual abuse, financial exploitation and exploitation of services, aggravated sexual assault of a child, human trafficking, and aggravated human trafficking. And I tell you those because in those cases, yes, it is getting a lot of information and it can be very useful. In many cases, what we're getting now in the court is a check the box short form that is not as useful for a lot of cases. And so it really having this flexibility allows the court to take these cases for deferred sentences and where we don't, where basically it's pretty clear to the court and others that we don't need a pre sentence, we don't have to order one.

[Rep. Martin LaLonde (Chair)]: Now

[Judge Tom Zonay (Chief Superior Judge)]: I will tell you just a quick story because the statute does say they have to order it unless the state's attorney agrees to waive it. And if you have a case, for instance, where someone has several misdemeanors and the court thinks, well, you know, a deferred sentence is good. Retail theft, unlawful trespass, cases like that, under the existing statute, if the prosecutor says no, I'm not waiving it, we have to prepare a pre sentence invest have a pre sentence investigation prepared before the court can do that. So in '20 I think it was 2019 when I was up for retention, there was a comment written by someone who was obviously a probation officer that said something about Judge Zonay, he's the only judge that makes us write PSIs for misdemeanors. Something like that. And when I went up for my interview with the retention committee, I believe it was senator Benning at the time, he smiled. He said, well, why are you making him do that? And I said and and the answer was because there were cases that I was on the bench and I identified that it looked like I should have the ability to potentially do a deferred sentence on some low end misdemeanors. And I'd asked the state, do you mind waiving the PSI so we can have that as a potential and save probation the effort? Because we can get the information from the attorneys and yourself. And there was a number of times that the state's attorney's office in that county was just saying no, we're not gonna waive it. And so in some cases, requiring it does slow things down. But a judge has the ability under this new bill with the amendments, and I do support the amendment to make it very clear that we can order it in any case. That's not a listed crime even though it's not required. We have the flexibility to do that.

[Rep. Martin LaLonde (Chair)]: I think that's good. Is this taking away, I don't call it power of discretion from the state's attorneys and kind of giving it to the court to determine whether or not?

[Judge Tom Zonay (Chief Superior Judge)]: Yeah. Non listed offenses, yes. Non listed offenses, the state's attorney, just like in the subsection here about listed offenses where they have to agree, The current statute requires them to agree in every offense. So again, they have to agree whether it's an unlawful trespass or whether it's something more serious. Under current law. Under current law, correct.

[Rep. Martin LaLonde (Chair)]: They have to agree to not have the PSI. Correct. And now it's really more up to the judge for the misdemeanor response whether to have it or not under this step.

[Judge Tom Zonay (Chief Superior Judge)]: Correct. And of course, if you have a case and the court is talking about the potential for a deferred sentence and the state's attorney says, Judge, if you're gonna consider a defer, we think there should be a PSI. They have the ability to bring that to the court too.

[Rep. Martin LaLonde (Chair)]: Under this.

[Judge Tom Zonay (Chief Superior Judge)]: Would consider it.

[Rep. Martin LaLonde (Chair)]: Yeah, okay. Yeah, here. Hey, judge. So every case that has a proposed deferred sentence under current law should have a PSI, unless it's either waived by the parties or the state's attorney explicitly says they don't want it?

[Judge Tom Zonay (Chief Superior Judge)]: The state's attorney has to waive it under the ones that they're not agreeing to. Generally, you're correct. Under subsection a, it's a it's a deferred seven zero four one a. It's a deferred sentence by agreement. On those circumstances, parties, the state and defense will oftentimes waive the PSI. If the court, wants to impose a PSI that wants to impose potentially a deferred sentence or have that as an option, and the state is not agreeing to a deferred sentence, the only way the court can impose a deferred sentence is if it has a PSI.

[Rep. Martin LaLonde (Chair)]: Is the waiver on the deferred in that deferred form?

[Judge Tom Zonay (Chief Superior Judge)]: I believe it is, I don't have the form right in front of me.

[Rep. Martin LaLonde (Chair)]: That must be where it is, okay.

[Judge Tom Zonay (Chief Superior Judge)]: I think there was a checkbox.

[Rep. Martin LaLonde (Chair)]: It's a checkbox where you waive it there. Okay. That makes more sense. Alright. Yeah. Oh, yeah. So I guess I I wanna make sure I understand this. So so a one is if there's agreement for the deferred sense. A two and a three is if the well, where is it if the court is just gonna decide on its own to have a deferred sense? And therefore, under this law, under this bill would have the discretion to order a PSI or not?

[Judge Tom Zonay (Chief Superior Judge)]: That would be under the new subsection A3. Okay. Because under subsection one, it's an agreement by the parties for the deferred sentence. Subsection two says even if it's an agreement by the parties, you can only waive it if it's it's for a listed crime if both parties agree, and of course the court has to agree. I can envision circumstances where the parties come to the court and say, we wanna waive the PSI. We agree to that. And the court says, no, I want a PSI. I can think of times that I have done that where the parties in a case, whether it's deferred or not, have said, we don't need a PSI. And I've said, I do.

[Rep. Martin LaLonde (Chair)]: Yeah. And this doesn't take that away, that ability?

[Judge Tom Zonay (Chief Superior Judge)]: No. Not at all. Because the court has at the end of the day, the judge has the the ability to accept or reject a plea agreement, and the court has to consider the agreement at the time of sentencing. And so my position is that if the court believes that it needs to review a PSI for complete information, that the court can say it. That's their absolute requirement.

[Rep. Martin LaLonde (Chair)]: But does that need to be clear in I mean, that's implied, but does that need to be clear in a two where it just seems to leave it to the state's attorney and respondent to agree to waive that? It doesn't suggest I mean, it's not explicit that the court can still order it even if they you know, the other two parties waive having the PSI. Or do you think that it is clear enough?

[Judge Tom Zonay (Chief Superior Judge)]: I have not had that as an issue because, again, the court has to accept the agreement, and a court can say, well, I'm not accepting an agreement unless there's a PSI. You can waive it, but I want the PSI. If that presents as an issue as a result of this bill, I think that we can come back in the future and straighten it out. But I don't see that as an issue. It should not be practically speaking something that is an impediment.

[Rep. Martin LaLonde (Chair)]: Okay, so line eight where the word may is there, that's where that came from.

[Judge Tom Zonay (Chief Superior Judge)]: That's my thought.

[Rep. Martin LaLonde (Chair)]: Okay. Alright. Just wanna make sure. Other oh, so just like another question. So DUIs, we've dealt with a little bit on another bill, and I understand that's a big part of the docket. Are PSIs ordered for DUIs very often?

[Judge Tom Zonay (Chief Superior Judge)]: I think when you get to the

[Rep. Martin LaLonde (Chair)]: DUI- You don't do defers for DUIs.

[Judge Tom Zonay (Chief Superior Judge)]: You don't generally see a lot of deferreds in my experience for DUIs, no. Not for DUI twos or threes where you would get a PSI.

[Rep. Martin LaLonde (Chair)]: Okay. Other questions for Judge Zoehler? Don't see him. Thank you very much, judge. Appreciate the testimony.

[Judge Tom Zonay (Chief Superior Judge)]: Have a good day, take care.

[Rep. Martin LaLonde (Chair)]: So we just have Matt Valerio, unless we have questions for Michelle, which I don't know that you do. Sorry about miscommunication. Was wondering if you start.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Y'all feel like you understand it and where all the pieces are all right.

[Rep. Martin LaLonde (Chair)]: Why don't you walk us through it just to make

[Michelle Tout (Office of Legislative Counsel)]: sure we do. We're waiting for Matt anyway.

[Rep. Martin LaLonde (Chair)]: We're waiting for Matt anyway, he's supposed to be here at three. I I don't want to take your opportunity to shine in front of us here on this particular note. Thank you for being here.

[Michelle Tout (Office of Legislative Counsel)]: So for the record, Michelle Tout, Office of Legislative Council. We're looking at S 181. So it's great you already have some grounding in it. So subsection A, as I'm sure folks have talked about, so that's the agreement between the prosecution and the defense to do a deferred sentence. Deferred sentence, place the person on probation, and you hold out the sentencing. If they violate while they're on conditions of probation, then sentence is imposed. If not, and they make it through their probationary period, then they have their records expunged. So you'll see that the language that struck throughout the bill. So in subsection A, when there's an agreement between the two parties, you'll see that language. It says upon an adjudication of guilt and after the filing of a pre sentence investigation. Right? So there's the requirement there. So that's taken out. Subdivision two, which is added because subsection A is dealing with any type of offense except those offenses that are automatically excluded by subsection C. So there are some sexually based offenses involving children that are never an option for a deferred sentence. But you'll see subdivision two is that if it's a listed crime, then there's to be a PSI unless the parties agree that they don't need one. My recollection is that Judge Zonay's testimony in the Senate was that, as he testified here, that the court always has the ability to spur a PSI. And so the Senate Judiciary Committee didn't have any concerns around taking that out there, knowing that the court can always ask for a PSI if it feels like it needs that information for sentencing purposes in order to accept the agreement. Subsection B is Before we go

[Rep. Martin LaLonde (Chair)]: into that, So there is a proposed amendment, which I have emailed you as well, which Yeah, I just saw it. Yeah, yeah. So just I want to flag that for you. And we did talk about death in here a little bit. But essentially, if a non listed crime, the court can

[Michelle Tout (Office of Legislative Counsel)]: still order PSI. Which they can do now.

[Rep. Martin LaLonde (Chair)]: You just want to say. Right, right, So

[Michelle Tout (Office of Legislative Counsel)]: subsection B is when there's not agreement And you'll see at the top of page two, a division three is the requirement for the PSI unless the state's attorney waives it. So remember, these are non listed crimes. Still have to do one, but the state's attorney can say, we don't need one in this case.

[Gary Marble (Deputy Director of Field Services, Department of Corrections)]: That's all. Thank you.

[Michelle Tout (Office of Legislative Counsel)]: Good. That's about it. The other things I was just trying to do at the cleanup language.

[Rep. Martin LaLonde (Chair)]: Thank you very much. And I guess if folks can kind of get around, we'll go off live and we'll try to wrap this one up with, I think the only other testimony we need is from Matt Valerio. And he couldn't be here before 03:00.