NE Code § 29-2261 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2261 - Presentence investigation, when; contents; psychiatric examination; persons having access to records; reports authorized.

29-2261.  Presentence investigation, when; contents; psychiatric examination; persons having access to records; reports authorized.(1) Unless it is impractical to do so, when an offender has been convicted of a felony other than murder in the first degree, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation. When an offender has been convicted of murder in the first degree and (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) the offender waives his or her right to a jury determination of the alleged aggravating circumstances, the court shall not commence the sentencing determination proceeding as provided in section 29-2521 without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation.(2) A court may order a presentence investigation in any case, except in cases in which an offender has been convicted of a Class IIIA misdemeanor, a Class IV misdemeanor, a Class V misdemeanor, a traffic infraction, or any corresponding city or village ordinance.(3) The presentence investigation and report shall include, when available, an analysis of the circumstances attending the commission of the crime, the offender's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits, and any other matters that the probation officer deems relevant or the court directs to be included. All local and state police agencies and Department of Correctional Services adult correctional facilities shall furnish to the probation officer copies of such criminal records, in any such case referred to the probation officer by the court of proper jurisdiction, as the probation officer shall require without cost to the court or the probation officer.Such investigation shall also include:(a) Any written statements submitted to the county attorney by a victim; and(b) Any written statements submitted to the probation officer by a victim.(4) If there are no written statements submitted to the probation officer, he or she shall certify to the court that:(a) He or she has attempted to contact the victim; and(b) If he or she has contacted the victim, such officer offered to accept the written statements of the victim or to reduce such victim's oral statements to writing.For purposes of subsections (3) and (4) of this section, the term victim shall be as defined in section 29-119.(5) Before imposing sentence, the court may order the offender to submit to psychiatric observation and examination for a period of not exceeding sixty days or such longer period as the court determines to be necessary for that purpose. The offender 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. The report of the examination shall be submitted to the court.(6)(a) Any presentence report, substance abuse evaluation, or psychiatric examination shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge; probation officers to whom an offender's file is duly transferred; the probation administrator or his or her designee; alcohol and drug counselors, mental health practitioners, psychiatrists, and psychologists licensed or certified under the Uniform Credentialing Act to conduct substance abuse evaluations and treatment; or others entitled by law to receive such information, including personnel and mental health professionals for the Nebraska State Patrol specifically assigned to sex offender registration and community notification for the sole purpose of using such report, evaluation, or examination for assessing risk and for community notification of registered sex offenders.(b) For purposes of this subsection, mental health professional means (i) a practicing physician licensed to practice medicine in this state under the Medicine and Surgery Practice Act, (ii) a practicing psychologist licensed to engage in the practice of psychology in this state as provided in section 38-3111 or as provided under similar provisions of the Psychology Interjurisdictional Compact, or (iii) a practicing mental health professional licensed or certified in this state as provided in the Mental Health Practice Act.(7) The court shall permit inspection of the presentence report, substance abuse evaluation, or psychiatric examination or parts of the report, evaluation, or examination, as determined by the court, by the prosecuting attorney and defense counsel. Beginning July 1, 2016, such inspection shall be by electronic access only unless the court determines such access is not available to the prosecuting attorney or defense counsel. The State Court Administrator shall determine and develop the means of electronic access to such presentence reports, evaluations, and examinations. Upon application by the prosecuting attorney or defense counsel, the court may order that addresses, telephone numbers, and other contact information for victims or witnesses named in the report, evaluation, or examination be redacted upon a showing by a preponderance of the evidence that such redaction is warranted in the interests of public safety. The court may permit inspection of the presentence report, substance abuse evaluation, or psychiatric examination or examination of parts of the report, evaluation, or examination by any other person having a proper interest therein whenever the court finds it is in the best interest of a particular offender. The court may allow fair opportunity for an offender to provide additional information for the court's consideration.(8) If an offender is sentenced to imprisonment, a copy of the report of any presentence investigation, substance abuse evaluation, or psychiatric examination shall be transmitted immediately to the Department of Correctional Services. Upon request, the Board of Parole or the Division of Parole Supervision may receive a copy of the report from the department.(9) Notwithstanding subsections (6) and (7) of this section, the Supreme Court or an agent of the Supreme Court acting under the direction and supervision of the Chief Justice shall have access to psychiatric examinations, substance abuse evaluations, and presentence investigations and reports for research purposes. The Supreme Court and its agent shall treat such information as confidential, and nothing identifying any individual shall be released.Source   Laws 1971, LB 680, § 16;   Laws 1974, LB 723, § 1;   Laws 1983, LB 78, § 4;  Laws 2000, LB 1008, § 1;  Laws 2002, LB 564, § 1;  Laws 2002, Third Spec. Sess., LB 1, § 9;  Laws 2003, LB 46, § 8;  Laws 2004, LB 1207, § 17;  Laws 2007, LB463, § 1129;  Laws 2011, LB390, § 3;  Laws 2015, LB268, § 20;  Laws 2015, LB504, § 1;   Referendum 2016, No. 426;  Laws 2018, LB841, § 3;  Laws 2018, LB1034, § 3.  Cross References   Medicine and Surgery Practice Act, see section 38-2001.  Mental Health Practice Act, see section 38-2101.  Uniform Credentialing Act, see section 38-101. Annotations  1. Sentence 2. Presentence report 3. Evaluations 1. Sentence Although a trial judge should take into account facts obtained from a victim's statement under the provisions of this section, as he or she should consider all facts pertinent to sentencing, a judge must not and cannot allow a victim's judgments and conclusions to be substituted for those of the court in imposing sentence. State v. Carlson, 225 Neb. 490, 406 N.W.2d 139 (1987). It was not error for the trial court to consider certain confidential letters addressed to the court because a trial judge has broad discretion in the sources and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed, and the latitude allowed a sentencing judge in such instances is almost without limitation as long as it is relevant to the issue. State v. Porter, 209 Neb. 722, 310 N.W.2d 926 (1981). A sentencing judge has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed, and the judge may consider probation officer reports, police reports, affidavits, and other information, including his own personal observations. A sentencing judge is not bound by the recommendations of the probation officer in determining the sentence to be imposed. State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981). When imposing sentence, a judge should consider, among other things, the offender's history of delinquency or criminality including offenses committed while on probation. State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975). While observation and examination are authorized hereunder for the purpose of aiding the court in its disposition of the case, a sentence to the Lincoln Regional Center for a period within the discretion of the director is void. State v. Shelby, 194 Neb. 445, 232 N.W.2d 23 (1975). In determining the kind and extent of punishment to be imposed, the judge may consider probation officer's reports, police reports, affidavits, and other information, including his own personal observations. State v. Holzapfel, 192 Neb. 672, 223 N.W.2d 670 (1974). 2. Presentence report The presentence investigation and report shall include, when available, any submitted victim statements and an analysis of the circumstances attending the commission of the crime and the offender's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits. The presentence investigation and report may also include any other matters the probation officer deems relevant or the court directs to be included. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020). It is "the better practice" for a sentencing court to issue a more direct advisement of the statutory right to a presentence investigation, conduct an explicit inquiry into the voluntariness of a defendant's waiver of that right, and make explicit findings with respect to a waiver. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). A defendant's right to a presentence investigation under subsection (1) of this section may be waived. State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012). Waiver under subsection (1) of this section must be knowingly and intelligently made. State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012). Under the first sentence of subsection (6) of this section, a prosecutor is included in the category of "others entitled by law to receive" the information in the presentence investigation report, and therefore, the sentencing court is not required to make a determination of the defendant's best interests before allowing the prosecutor to review the presentence investigation report. State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008). Under former law, this section requires a sentencing panel to utilize a presentence investigation only in the selection phase of capital sentencing, which phase occurs after the defendant has been determined by the jury to be eligible for the death penalty. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003). A defendant may examine a presentence report with his or her attorney, subject to the court's supervision and redaction of any confidential or privileged information. State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990). It is impractical to require successive, repetitive presentence investigations when an earlier investigation is available and satisfies the requirements of this section. State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). Requirement that presentence investigation include any written statements submitted by the victim was substantially complied with and there was no prejudice to the defendant, where the presentence report included a report of the victim's statement to the police and his deposition. State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986). Presentence investigation and report shall include any information deemed relevant by the probation officer or which the court directs be included. State v. Goodpasture, 215 Neb. 341, 338 N.W.2d 446 (1983). Defendant was precluded from arguing that this section applies to misdemeanors where she advised the trial court, after the court offered to have a presentence report prepared, that she did not desire to have one provided. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982). Use of presentence report required only in felony cases. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977). Presentence investigation report may include police reports, affidavits, and county attorney memoranda with other information in case of conviction for second-degree murder. State v. Robinson, 198 Neb. 785, 255 N.W.2d 835 (1977). Necessity for successive presentence investigations before revoking probation is discretionary with sentencing judge. State v. Snider, 197 Neb. 317, 248 N.W.2d 342 (1977). No request was made for copy of presentence report, and trial judge did not err in not offering it. State v. Keller, 195 Neb. 209, 237 N.W.2d 410 (1976). A presentence report is required hereunder only if the offense involved is a felony. State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975). Where sentencing judge examined presentence report ordered earlier by judge who accepted plea of guilty, requirements of this section were met. State v. Hilderbrand, 193 Neb. 233, 226 N.W.2d 353 (1975). Unless it is impractical to do so, after a felony conviction, the court must order a presentence investigation and give written report thereof due consideration before pronouncing sentence. State v. Zobel, 192 Neb. 480, 222 N.W.2d 570 (1974). Unless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation. State v. Jackson, 192 Neb. 39, 218 N.W.2d 430 (1974). District court erred in denying defendant or his counsel access to part of presentence report relating to record of prior arrests and convictions but, under facts in this proceeding, the error was harmless. State v. Richter, 191 Neb. 34, 214 N.W.2d 16 (1973). The mandated presentence investigation is not required before a felony sentencing when it is "impractical" or when the defendant waives the right to a presentence investigation. State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d 916 (2001). Pursuant to subsection (1) of this section, the use of a presentence investigation before sentencing an offender is required only as to those convicted of felonies. State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998). A presentence report is privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, or others entitled by law to receive such information. The group of others entitled by law to receive such information does not include jurors in a criminal trial. State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 (1993). 3. Evaluations Whether to order an offender to submit to psychiatric observation and evaluation is a matter within the discretion of the trial court. State v. Dethlefs, 239 Neb. 943, 479 N.W.2d 780 (1992). Trial judge did not abuse discretion in denying defendant's untimely request for additional evaluations as to defendant's status as a mentally disordered sex offender. State v. Perdue, 222 Neb. 679, 386 N.W.2d 14 (1986). Both section 29-2204.03 and this section give the court the discretion to order further evaluations of the defendant prior to sentencing when it deems such evaluations necessary for determining the sentence to be imposed; neither statute provides that a defendant can or should request the evaluations. Trial counsel cannot be deficient for failing to request evaluations that the court itself could have ordered, but in its discretion deemed unnecessary. State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018).