State v. Brandon M. Melton

2013 WI 65

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1770-CR, 2011AP1771-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Brandon M. Melton,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
343 Wis. 2d 784, 820 N.W.2d 487
(Ct. App. – Published)
PDC No: 2012 WI App 95

OPINION FILED: July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Robert G. Mawdsley

JUSTICES:
CONCURRED: ZIEGLER, J., ABRAHAMSON, C.J., BRADLEY, J.,
concur. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Jacob Wittwer, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief by Kevin M.
Gaertner and Law Shield of Wisconsin, LLC, Milwaukee, with oral
argument by Kevin M. Gaertner.
 2013 WI 65
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1770-CR & 2011AP1771-CR
(L.C. No. 2008CF1221 & 2009CF156)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner,
FILED
v.
JUL 11, 2013
Brandon M. Melton,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 DAVID T. PROSSER, J. The issue presented in this
case is whether a circuit court has inherent authority to order

the physical destruction of a presentence investigation report
(PSI). We review a published decision of the court of appeals,1

reversing an order of the Waukesha County Circuit Court that
questioned whether the circuit court had authority to destroy a

PSI and declined to do so.

1
State v. Melton, 2012 WI App 95, 343 Wis. 2d 784, 820
N.W.2d 487.
 No. 2011AP1770-CR & 2011AP1771-CR

¶2 The defendant, Brandon M. Melton (Melton), pled guilty

to two felonies. The Waukesha County Circuit Court, Richard A.

Congdon, Judge, requested that the Wisconsin Department of

Corrections (the DOC) prepare a PSI to assist the court in

Melton's sentencing. When the circuit court and the parties

received the PSI, Melton disputed some of the information in the

report. Judge Congdon ordered that a second PSI be prepared

omitting the disputed information. He also ordered that the

first PSI be sealed and then destroyed following the expiration

of any appellate time limits. Judge Congdon's successor,

Circuit Judge Mark D. Gundrum, modified the destruction order

after Melton was sentenced. Judge Gundrum ordered that the

first PSI be sealed rather than destroyed because he questioned

the court's authority to remove a court document from the file

and destroy it.

¶3 Melton appealed, and the court of appeals reversed,

holding that the circuit court had the inherent authority to

order the destruction of the first PSI. The court of appeals
reasoned that having two PSIs in Melton's file would lead to

"confusion and injustice." State v. Melton, 2012 WI App 95,

¶23, 343 Wis. 2d 784, 820 N.W.2d 487.

¶4 We reverse. We conclude that courts do not have

either express or implied statutory authority to order the

destruction of PSIs. The PSI statute, the Wisconsin

2
 No. 2011AP1770-CR & 2011AP1771-CR

Administrative Code,2 and Wisconsin Supreme Court Rules on record

retention implicate principles of preservation and

confidentiality, not destruction. We also conclude that courts

lack the inherent authority to order the destruction of PSIs on

the facts before us or on any of the arguments Melton has made

because such power is not necessary to a court's efficient and

effective administration of justice. A court has adequate means

of dealing with errors, omissions, or prejudicial material in a

PSI without physically destroying the disputed report. A court

can strike objected-to portions of a PSI and make a record that

the court will not use the objected-to information. In unusual

cases, a court can order that a corrected PSI be prepared, and

it can seal and clearly label the superseded report.

¶5 To forestall further confusion on the issue presented

and to mitigate the possibility of error, we outline procedures

that should be followed when the bench and bar are confronted

with disputed PSIs.

I. BACKGROUND
¶6 On September 10, 2009, Melton pled guilty to two

felonies: second-degree sexual assault of a child for having
sexual intercourse with a 13-year-old and theft of moveable

property greater than $2,500, contrary to Wis. Stat.

2
Effective July 1, 2013, the DOC substantially revised Wis.
Admin. Code § DOC 328 and removed language related to
presentence investigation reports. This chapter of the
administrative code was in effect during the pendency of this
case. The DOC's revision does not alter our holding.

3
 No. 2011AP1770-CR & 2011AP1771-CR

§§ 948.02(2)3 and 943.20(1)(a) and (3)(bf), respectively.4 Other

pending charges were dismissed and read in. Judge Congdon

ordered a PSI for Melton. The court received identical PSIs for

each felony file on November 19, 2009.

¶7 Melton moved to strike portions of the PSIs because

they allegedly violated DOC rules and contained "prejudicial and

inflammatory material which should not be included in a [PSI]."

Melton asserted that the PSIs discussed certain uncharged

offenses under a section entitled "Description of Offenses." He

claimed that the PSIs included statements he gave to police

during an interview and that the statements in the PSIs were

hearsay. Melton's motion concluded by asking that the disputed

information be stricken from the reports "and . . . new [PSIs]

be prepared deleting that information and further that the

original [PSIs] prepared on November 19, 2009 be destroyed and

sealed."

¶8 At a hearing on the motion, held weeks before Melton's

sentencing, Melton's attorney strenuously objected to inclusion
of the uncharged offenses and asked the court to strike these

portions of the PSIs. In the alternative, the attorney asked

3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
4
Melton's appeal is comprised of two cases that are
consolidated for purposes of appeal. The first case,
2008CF1221/2011AP1770, was the result of the charge for sexual
assault of a child. In the second case, 2009CF156/2011AP1771,
Melton was charged with robbery, battery, bail jumping, and
receiving stolen property. The complaint was later amended to
include theft.

4
 No. 2011AP1770-CR & 2011AP1771-CR

the court to "simply strike the entire [PSI] and let us proceed

from this point forward." The State objected, arguing that the

disputed information was "important for the [c]ourt to consider

when deciding the character of" Melton. According to the State,

uncharged offenses like those at issue may be included in a PSI.

¶9 Judge Congdon quoted a letter written by the DOC agent

who prepared the PSIs, acknowledging that "[t]he decision to

include this [disputed] information . . . may be a deviation of

the standard outline." The State responded that it did not

disagree that the information might be a deviation from the

"standard outline," but that it was not prohibited, indicating

that information on the defendant's "sexual behavior" may be

included in the report.

¶10 Judge Congdon concluded that the disputed information

would be "of little use" to the court at sentencing. The judge

reasoned that the disputed information "could very well be

prejudicial to Mr. Melton as he goes through whatever

route . . . the Court will set for him."5 Judge Congdon
determined that he had the authority to order the disputed

information stricken as "inherent within the authority given to
[him] under [Wis. Stat. §] 972.15," (the PSI statute).

¶11 Accordingly, Judge Congdon orally granted Melton's
motion to strike, and then said that the court would "ask for a

new [PSI], or at least an updated one." Melton's attorney

5
The court of appeals presumed that the "route" referred to
the DOC system after sentencing. Melton, 343 Wis. 2d 784, ¶4.

5
 No. 2011AP1770-CR & 2011AP1771-CR

seconded this course of action, asking that the existing PSIs in

the possession of the parties and the court "be stricken and

destroyed." Melton's attorney continued, "If it's sealed in the

file, it's going to become available at some point. I think the

thing should be redone . . . without a reference to this event."

¶12 The circuit court collected the district attorney's

copies of the PSIs containing the disputed information, and

Melton's attorney drafted an order for each file that read in

part as follows:

[State v. Melton] came on for hearing before Hon.
Richard Congdon on the 25th day of March, 2010 with
appearances by Attorney Kevin G. Keane for the
defendant, and Deputy District Attorney Stephen J.
Centinario for the State, upon defendant's Motion to
strike portions of a presentence investigation report
prepared on November 19, 2009. Following the
arguments of counsel, and further based upon the files
and proceedings had in this matter,

It is hereby ordered as follows:

1. The Department of Corrections shall prepare
an updated presentence investigation report. The
updated presentence investigation report shall not
include any reference to information obtained at a
November 18, 2008 interrogation by the Waukesha Police
Department of the defendant. In particular, the
sections of the presentence investigation report dated
November 19, 2009 as contained on page 2 of that
document at the last paragraph commencing [disputed
information partially identified] and continuing
through page 3 and the first paragraph of page 4
ending with [disputed information partially
identified] shall be deleted. Additionally, any
references contained on page 7 in the second paragraph
under Offender's Version, commencing with [disputed
information partially identified] shall not be
included in the updated presentence investigation.

6
 No. 2011AP1770-CR & 2011AP1771-CR

2. The presentence investigation report dated
November 19, 2009 shall be sealed and destroyed
following the expiration of any appellate time limits,
and defendant's copy shall be returned to the Court.
¶13 After the DOC provided copies of new PSIs to the

court, Melton's case proceeded to sentencing. The circuit

court, Judge Robert Mawdsley presiding, sentenced Melton to four

years of initial confinement and eight years of extended

supervision on the conviction of second-degree sexual assault of

a child. The circuit court also sentenced Melton to six months

of incarceration on the theft conviction. The sentences were to

be served concurrently.

¶14 Approximately two months after sentencing, a new

circuit judge, Mark D. Gundrum, sua sponte ordered a hearing to

address whether the court had the authority to destroy a PSI.

Ultimately, Judge Gundrum concluded that a judge had no

authority to order the destruction of a PSI.

¶15 At the hearing, Judge Gundrum said that he reviewed

the PSI statute, Wis. Stat. § 972.15, and concluded that

"keeping [a PSI] confidential is what is envisioned by the

statute." Judge Gundrum said he believed that it would be

"inappropriate" to destroy the first PSIs in Melton's case,

although he did not identify a specific authority that

prohibited destruction of a PSI.

¶16 Consequently, Judge Gundrum entered a "Modified Order"

that was identical to Judge Congdon's previous order, except

that it deleted the instruction to destroy the first PSIs after

7
 No. 2011AP1770-CR & 2011AP1771-CR

the expiration of appellate time limits. The modified order

commanded that the disputed PSIs "be sealed" but not destroyed.

¶17 In the two records for this appeal, Judge Gundrum's

modified order is taped to the front of the sealed envelopes

containing the first, disputed PSIs.6 The backs of these

envelopes have the words "Ordered Sealed" handwritten in

fluorescent highlighter. The backs of these envelopes also are

stamped with the words "Do Not Open Without Permission of the

Court," which is the same stamp on the envelopes containing the

second, undisputed PSIs.7

¶18 Melton appealed Judge Gundrum's order. Stating that

the narrow issue on appeal was whether a circuit court had the

inherent authority to order the destruction of a PSI, the court

of appeals reversed the modified order. Melton, 343

Wis. 2d 784.

¶19 The court of appeals concluded that, under the "unique

facts"8 of this case, the circuit court had the inherent

6
Again, Melton's appeal is composed of two cases. The
circuit court ordered a PSI for Melton in each felony case.
Therefore, the record for each case contains the first disputed
PSI and the second corrected PSI.
7
The record index in both cases states——in bold capital
letters——that the disputed PSIs are "ordered permanently sealed
by order of the court on 9/24/10." (Emphasis added.)
8
The "unique facts" that the court of appeals refers to
include two PSI reports in each of Melton's files, no objection
by the parties when the circuit court ordered the first PSIs
destroyed, and no contention that the first PSIs were relied
upon by the sentencing court. Melton, 343 Wis. 2d 784, ¶11.

8
 No. 2011AP1770-CR & 2011AP1771-CR

authority to order the destruction of the disputed PSIs. Id.,

¶11. The court of appeals outlined the concept of inherent

authority and reaffirmed that "[a] power is inherent when it 'is

one without which a court cannot properly function.'" Id., ¶13

(quoting State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544, 787

N.W.2d 350).

¶20 The court of appeals concluded that the primary

purpose of a PSI is to assist a circuit court at sentencing.

Id., ¶14 (citing Wis. Admin. Code § DOC 328.27(1) (Dec. 2006)).
In light of this purpose, the court of appeals held that, in

this case, the circuit court had the inherent authority to order

the destruction of the first PSI "to prevent confusion as to

which PSI . . . in the file should be used" in a potential

resentencing. Id., ¶¶22-23. Preventing confusion, the court of

appeals reasoned, "is certainly a matter of efficient judicial

administration and fairness at a potential resentencing, and as

such, is within a circuit court's inherent powers." Id., ¶23

(citing Henley, 328 Wis. 2d 544, ¶73).

¶21 The State petitioned this court for review, which we

granted on November 14, 2012.

II. STANDARD OF REVIEW

¶22 This case requires the court to examine the scope of

judicial authority, if any, to order the destruction of a PSI.

Another "unique fact" pointed to by the court of appeals——
that Melton's appeal was still pending when Judge Gundrum issued
his modified order——appears to be mistaken. The State notes
that Melton did not file his notice of appeal until after Judge
Gundrum issued his modified order.

9
 No. 2011AP1770-CR & 2011AP1771-CR

The scope of judicial authority is a question of law that this

court reviews de novo. State v. McClaren, 2009 WI 69, ¶14, 318

Wis. 2d 739, 767 N.W.2d 550 (citing Breier v. E.C., 130

Wis. 2d 376, 381, 387 N.W.2d 72 (1986)).

¶23 We also must interpret the PSI statute, Wis. Stat.

§ 972.15. Statutory interpretation is a question of law that

this court reviews de novo. Id. (citing Custodian of Records

for the LTSB v. State, 2004 WI 65, ¶6, 272 Wis. 2d 208, 680

N.W.2d 792).

¶24 In addition, we are asked to interpret and apply

Chapter 72 of the Supreme Court Rules. The interpretation and

application of Supreme Court Rules are questions of law subject

to independent review. Filppula-McArthur v. Halloin, 2001 WI 8,

¶32, 241 Wis. 2d 110, 622 N.W.2d 436 (citing City of West Allis

v. Sheedy, 211 Wis. 2d 92, 96, 564 N.W.2d 708 (1997)).

III. DISCUSSION

¶25 We begin with an examination of the applicable law on

PSIs. Next, we consider whether the law——statutes, case law,

administrative rules, court rules, and inherent authority——

permits a court to order the destruction of a PSI. Finally,

after discussing various remedies and their terminology for

disputed PSIs, we suggest procedures for litigants to follow in

dealing with disputed PSIs.

A. General Background on PSIs

¶26 After a felony conviction, a circuit court has the

discretion to order the DOC to prepare a PSI on the defendant.

Wis. Stat. § 972.15(1) (stating that a "court may order a
10
 No. 2011AP1770-CR & 2011AP1771-CR

presentence investigation," but "only after a conviction for a

felony").9 The primary purpose of a PSI is "to provide the

sentencing court with accurate and relevant information upon

which to base its sentencing decision." Wis. Admin. Code § DOC

328.27(1) (Dec. 2006); see also State v. Washington, 2009 WI App

148, ¶9, 321 Wis. 2d 508, 775 N.W.2d 535 (citation omitted) (a

PSI "assist[s] the judge in selecting the appropriate sentence

for the individual defendant").

¶27 Wisconsin Stat. § 972.15, the PSI statute, was created

by section 63, Chapter 255, Laws of 1969. However, PSI

preparation predates the statute, as the note accompanying this

section of Chapter 255 explains:

Most judges and attorneys will be surprised to
learn that, outside of a provision for Milwaukee
[C]ounty (s. 57.02 (6) [repealed]), there is presently
no statutory authority for presentence investigations.
Wisconsin has been a pioneer in this field and
obviously the presentence investigation is an integral
part of the sentencing practice in this state.
Note, § 63, ch. 255, Laws of 1969.

¶28 The PSI should contain the following information

related to the defendant: the present offense, the defendant's

prior criminal record, the defendant's prior correctional

institution record, any statement by the victim(s), and the

defendant's family information and personal history. Wis.

9
In some jurisdictions, the preparation of a PSI is
mandatory following a felony conviction. See, e.g., Mich. Comp.
Laws § 771.14(1) (2012) (a PSI shall be prepared after all
felony convictions, but it is within a court's discretion after
a misdemeanor conviction).

11
 No. 2011AP1770-CR & 2011AP1771-CR

Admin. Code § DOC 328.27(3) (Dec. 2006).10 The PSI should also

include the PSI writer's recommendation for sentencing and the

reasoning that supports that recommendation along with a

tentative corrections plan, unless the writer is ordered

otherwise. § DOC 328.27(3)(d).

¶29 After a DOC agent completes a PSI and it is received

by the sentencing court, "the judge shall disclose the contents

of the report to the defendant's attorney and to the district

attorney11 prior to sentencing." Wis. Stat. § 972.15(2). Such

disclosure is important because a defendant has a due process

right to be sentenced upon accurate information. See State v.

10
A relatively new provision of the PSI statute, Wis. Stat.
§ 972.15(1m), reads:

Sex offenses against minors. If a person is
convicted for a felony that requires him or her to
register under s. 301.45 and if the victim was under
18 years of age at the time of the offense, the court
may order the department to conduct a presentence
investigation report to assess whether the person is
at risk for committing another sex offense, as defined
in s. 301.45 (1d)(b).

This provision was enacted into law as a result of 2007
Wis. Act 80, § 22. Wisconsin Stat. § 972.15(1m) took effect on
April 1, 2009. Melton was convicted of sexual assault of a
child in September 2009. See Wis. Stat. § 948.02(2). The
circuit court did not order the DOC to prepare such an
assessment in Melton's case.
11
The district attorney and the defendant's attorney are
allowed to "have and keep a copy" of the PSI, but the PSI must
still be kept "confidential." Wis. Stat. § 972.15(4m). See
also State ex rel. Office of the State Pub. Defender v. Court of
Appeals, Dist. IV, 2013 WI 31, ¶22, 346 Wis. 2d 735, 828
N.W.2d 847.

12
 No. 2011AP1770-CR & 2011AP1771-CR

Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. Some

information in a PSI "may be unverified and some of it may be

inaccurate. . . . [A]ffording the defendant and defendant's

counsel an opportunity to examine the contents of the report

permits the defendant to challenge statements and correct

errors." State v. Watson, 227 Wis. 2d 167, 194, 595 N.W.2d 403

(1999). A defendant has the right to challenge a PSI he or she

believes is "inaccurate or incomplete." State v. Greve, 2004 WI

69, ¶11, 272 Wis. 2d 444, 681 N.W.2d 479 (citing Watson, 227

Wis. 2d at 194).

¶30 The PSI is "the single most important document that

influences correctional decision making in Wisconsin."12 The PSI

"is used for such things as determining levels of supervision,

classification, program assignment, parole planning and decision

making and in the overall correctional treatment of offenders."

Wis. Admin. Code § DOC 328.27(1) (Dec. 2006). See also Wis.

Stat. § 972.15(5) (authorizing the DOC to use a PSI for

"correctional programming, parole consideration or care and

treatment").

¶31 With certain narrow exceptions,13 the contents of a PSI

"shall be confidential and shall not be made available to any

12
Jeffrey H. Bergman, Comment, Insuring the Accuracy of the
Presentence Investigation Report in the Wisconsin Correctional
System, 1986 Wis. L. Rev. 613, 613 (footnote omitted).
13
The exceptions to the general confidentiality rule, which
do not require court approval to access and use the PSI, are
listed in Wis. Stat. § 972.15(5) and (6). The DOC is the most
significant exception.

13
 No. 2011AP1770-CR & 2011AP1771-CR

person except upon specific authorization of the court." Wis.

Stat. § 972.15(4). Recently, this court reaffirmed that

maintaining the confidentiality of PSIs is an important

statutory directive. See State ex rel. Office of the State Pub.

Defender v. Court of Appeals, Dist. IV, 2013 WI 31, ¶¶36, 39,

346 Wis. 2d 735, 828 N.W.2d 847 (reminding parties to be

"abundantly cautious" and "mindful" when dealing with

information contained in PSIs).

¶32 Finally, a PSI is different from a sentencing

memorandum, which is similar in content to a PSI but has no

"prescribed format" and is prepared by an advocate for the

defendant. Greve, 272 Wis. 2d 444, ¶12 (citation omitted).
B. Whether a Court May Order the Destruction of a PSI

¶33 With this background on PSIs in mind, we turn to the

question of whether a circuit court may order the destruction of

a PSI. The first circuit court order by Judge Congdon was to

seal and eventually destroy a disputed PSI and to order a second

PSI for the court file.

¶34 There are various sources of judicial power. These

include the state and federal constitutions and state and

federal statutes. Constitutional authority to act can be

explicit, or implicit in the very nature of the judicial branch.

The inherent authority of Wisconsin courts comes from the powers

and duties of the judicial branch set out in the Wisconsin

Constitution. The Wisconsin Constitution contains no explicit

grant of authority for Wisconsin courts to destroy PSIs.

Consequently, this opinion will examine statutory authority and
14
 No. 2011AP1770-CR & 2011AP1771-CR

inherent authority14 to determine whether courts have power to

order the destruction of PSIs.

1. Statutory Authority

¶35 In considering "statutory authority," we think it

appropriate to consider federal statutes, state statutes, state

administrative rules, and Supreme Court rules. In this case, we

are not aware of any federal statutes that empower or bind

Wisconsin courts in relation to the destruction of PSIs.

¶36 "[T]he purpose of statutory interpretation is to

determine what the statute means so that it may be given its

full, proper, and intended effect." Heritage Farms, Inc. v.

Markel Ins. Co., 2012 WI 26, ¶26, 339 Wis. 2d 125, 810

N.W.2d 465 (citation omitted). Statutory interpretation "begins

with the language of the statute." State ex rel. Kalal v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110. Courts give statutory language its common,

ordinary meaning. Id. Statutory language is interpreted in the

context in which it is used, "not in isolation but as part of a

whole." Id., ¶46. We must construe statutory language

reasonably, so as to avoid absurd results. Id.

¶37 Courts interpret administrative rules, Orion Flight

Services, Inc. v. Basler Flight Service, 2006 WI 51, ¶18, 290

14
In Breier v. E.C., 130 Wis. 2d 376, 388, 387 N.W.2d 72
(1986), the court cited "equitable judicial authority" among the
possible bases of authority for a court to expunge a juvenile's
police record. Id. at 381. The court later noted that
equitable authority "is a variant of the inherent authority
doctrine." Id. at 388.

15
 No. 2011AP1770-CR & 2011AP1771-CR

Wis. 2d 421, 714 N.W.2d 130 (citations and footnote omitted);

State ex rel. Griffin v. Smith, 2004 WI 36, ¶19, 270

Wis. 2d 235, 677 N.W.2d 259, and Supreme Court rules, State v.

Henley, 2010 WI 12, ¶11, 322 Wis. 2d 1, 778 N.W.2d 853; In re

Disciplinary Proceedings Against Trewin, 2004 WI 116, ¶38, 275

Wis. 2d 116, 684 N.W.2d 121, the same way that they interpret

statutes.

¶38 The PSI statute, Wis. Stat. § 972.15, does not

authorize a court to destroy a PSI. In fact, it implies the

opposite. Subsection (4) states that a PSI "shall not be made

available to any person except upon specific authorization of
the court." (Emphasis added.) Although this language

contemplates confidentiality, it necessarily envisions

preservation, because a court cannot authorize access to a PSI

that it has destroyed. The authority to destroy is inconsistent

with the authority to make available.15 The authority to destroy

would also tie the hands of other judges. Melton and the State

appear to agree that if a court has the authority to destroy a

PSI, it does not come from Wis. Stat. § 972.15.

¶39 While destruction of a PSI would help to ensure

confidentiality, proper sealing and labeling of a PSI would also

ensure confidentiality and fulfill the other purpose of the PSI

statute——namely, preservation. Although Melton argues that the

15
See State v. Dinkins, 2012 WI 24, ¶29, 339 Wis. 2d 78,
810 N.W.2d 787 (citing State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110)
(interpreting a statute in such a way that contravenes its
"manifest purpose" is unreasonable).

16
 No. 2011AP1770-CR & 2011AP1771-CR

dual purposes of the PSI statute apply only to "correct" PSIs,

Wis. Stat. § 972.15 makes no distinction between "correct" PSIs

and "incorrect" PSIs.

¶40 The lack of explicit guidance in the statutes on court

authority to destroy PSIs is similar to the situation in Breier.

In that case, this court considered whether a circuit court had

authority to expunge police records. Breier, 130 Wis. 2d at

379. The Breier court first looked to the circuit court's

statutory authority and construed "the relevant statutes to not

provide express or implied authority for circuit courts to

expunge juvenile police records." Id. at 385. The court was

"particularly influenced" by the fact that a statute requiring

confidentiality of police records did not also provide authority

to expunge these records. Id. Like the statute in Breier, the

PSI statute requires confidentiality, Wis. Stat. § 972.15(4),

but it does not provide express or implied authority to destroy

a PSI record.

¶41 The Wisconsin Administrative Code also contains

provisions related to PSIs, but these provisions do not

authorize a court to destroy a PSI. Wisconsin Admin. Code § DOC

328.27(2) states that a DOC agent shall prepare a PSI, and the

PSI must contain the information provided for under the same

section, "unless the court orders otherwise." Wisconsin Admin.

Code § DOC 328.28 is titled "Modified presentence investigation

report." Subsection (1) of that section permits a DOC agent to

prepare a PSI that contains only the information that the court

orders.
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 No. 2011AP1770-CR & 2011AP1771-CR

¶42 The administrative code does not explicitly address

deletions from or corrections to statements in PSIs, although

Wis. Admin. Code § DOC 328.28(1) could be interpreted to cover a

second PSI that deletes disputed information.

¶43 Wisconsin Admin. Code § DOC 328.30 addresses DOC

recordkeeping, indicating that a "case record of each client

shall be maintained" and shall include, inter alia: "(i) The

client's court order and any court imposed conditions and

obligations; (j) Copies of the client's presentence

investigation report prepared under s. DOC 328.27 or 328.28."

Hence, the administrative rules authorize the court to put a

corrected copy of the PSI in the "case record" maintained by the

DOC. However, the rules do not authorize the court to withdraw

PSIs from the case record or to destroy PSIs.

¶44 In this case, Supreme Court Rules are important. The

State argues that destruction of a PSI would conflict with

Chapter 72 of the Supreme Court Rules on record retention.

"[I]n the exercise of the court's constitutional authority over
all courts,"16 this court adopted Chapter 72 of the Supreme Court

Rules, relating to the retention of court records. S. Ct.
Order, 136 Wis. 2d xi (issued Mar. 5, 1987, eff. Apr. 1, 1987).

Current Chapter 72 reads in part:

Except as provided in SCR 72.03 to 72.05, the
original paper records of any court shall be retained

16
Article VII, Section 3 of the Wisconsin Constitution
provides, "The supreme court shall have superintending and
administrative authority over all courts."

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 No. 2011AP1770-CR & 2011AP1771-CR

in the custody of the court for the following minimum
time periods:

. . . .

(15) Felony case files. All papers deposited
with the clerk of circuit court in proceedings
commenced as felonies: 50 years after entry of final
judgment; for Class A felonies, 75 years after entry
of final judgment.
SCR 72.01 (2012) (emphasis added).

¶45 The Supreme Court Rules also contain a provision for

disposing of court records:

(1) A clerk of court . . . may destroy records
in his or her custody after minimum retention periods
under SCR 72.01 have expired . . . .

(2) Records defined as confidential by rule or
statute shall be destroyed in accordance with sub. (1)
by burning, shredding, or other means that will
obliterate the records.
SCR 72.02 (2012) (emphasis added).

¶46 Based on the language of SCR 72.01, the 50-year

retention rule applies when (1) a paper is deposited with the

clerk of circuit court, and (2) the paper is for a proceeding

commenced as a felony.
¶47 Ordering the destruction of a PSI would conflict with

SCR 72.01's mandate that courts preserve paper records for
designated periods of time. In this case, Judge Congdon ordered

a PSI after Melton's convictions and another after the court
received the first PSI; these PSIs are part of the record in

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 No. 2011AP1770-CR & 2011AP1771-CR

both of Melton's cases.17 In addition, both of Melton's cases

were commenced as felony proceedings. Whether a PSI is "right"

or "wrong," "undisputed" or "disputed," "original" or "amended,"

the policy behind SCR 72.01 mandates its retention for at least

50 years after the entry of final judgment.18

2. Inherent Authority

¶48 Melton argues that a circuit court has the inherent

authority to order the destruction of a PSI because the power to

destroy a PSI is essential to a court's existence and

functioning. At various times, Melton contended that (1) the

PSIs in his cases included information that was not authorized

to be part of a PSI by DOC administrative rules; (2) the

improper information would be highly prejudicial to him when he

reached the correctional system; (3) he needed protection

against use of the prejudicial information by the DOC; (4) a

court should never consider truly objectionable information; and

(5) the existence of one or more disputed PSIs in a court file

would be very confusing and lead to mistakes, especially if a

17
Courts are not without recourse to deal with documents
mistakenly filed in the wrong court record. It is perfectly
acceptable to withdraw these misfiled documents and refile them
in the appropriate case file. See, e.g., Schlumpf v. Yellick,
94 Wis. 2d 504, 510, 288 N.W.2d 834 (1980) (after amended
summons and complaint were typed with wrong case number and
misfiled, the circuit court ordered the transfer of the
documents to the correct case file).
18
SCR 72.01 is not the only rule disfavoring destruction of
court records before the expiration of retention requirements.
See also SCR 72.06 (mandating that expunged records are to be
sealed but not destroyed except in accordance with the
provisions of the chapter).

20
 No. 2011AP1770-CR & 2011AP1771-CR

defendant like himself were ever resentenced. He asserted that

PSIs may contain inaccurate, incomplete, biased, or prejudicial

information. Judge Congdon added that the disputed information

in the PSIs would not be "useful" to him in sentencing.

¶49 We conclude, however, that courts do not possess the

inherent authority to order the destruction of a PSI on any of

these grounds because physical destruction of a PSI, as opposed

to sealing and carefully labeling a disputed PSI, is not

necessary for the efficient and effective functioning of a

court. We recognize that it would be ill-advised for the court

to deny absolutely the existence of any inherent authority to

destroy a PSI, regardless of the circumstances, but we cannot

presently think of a circumstance so dire that a court would be

unable to fashion an adequate remedy for the problem short of

destruction of a court record.

¶50 Inherent powers are "those that have been conceded to

courts because they are courts. Such powers have been conceded

because without them [courts] could neither maintain their

dignity, transact their business, nor accomplish the purposes of

their existence." City of Sun Prairie v. Davis, 226

Wis. 2d 738, 748, 595 N.W.2d 635 (1999) (citations and internal

quotation marks omitted). Put another way, "[a] power is

inherent when it is one without which a court cannot properly

function." Henley, 328 Wis. 2d 544, ¶73 (internal quotations

omitted) (quoting State v. Braunsdorf, 98 Wis. 2d 569, 580, 297

N.W.2d 808 (1980)).

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 No. 2011AP1770-CR & 2011AP1771-CR

¶51 Circuit courts exercise their inherent authority in

three general areas: (1) guarding against actions that would

"unreasonably curtail the powers or materially impair the

efficacy of the courts or judicial system"; (2) regulating

judges and attorneys; and (3) ensuring that courts function

"efficiently and effectively to provide the fair administration

of justice." Davis, 226 Wis. 2d at 749-50 (citations and

internal quotation marks omitted).19

¶52 In this case, the question before the court relates to

the third area——the efficient and effective functioning of a

circuit court.

¶53 In this review, Melton argues that judicial authority

to order the destruction of a PSI is necessary for two reasons.

First, destruction of an incorrect PSI will prevent confusion on

the part of the DOC for use in Melton's correctional

programming. It will prevent the "wrong" PSI from being used

against Melton "in any prejudicial manner." Second, destruction

of an incorrect PSI will prevent any confusion over which PSI in

the court file is the correct one at a possible resentencing.
Destruction of the suspect PSI will assure that it will not be

used accidentally. The court of appeals adopted this second

19
See also Lynn Laufenberg and Geoffrey Van Remmen, Courts:
Inherent Power and Administrative Court Reform, 58 Marq. L. Rev.
133, 135 (1975) (explaining that the concept of inherent
authority is "found in the constitutional separation of powers"
and that the judiciary must possess power "not only to protect
itself from attacks by the co-ordinate branches, but also to
take the initiative in preserving its existence when the need
arises").

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 No. 2011AP1770-CR & 2011AP1771-CR

conclusion. Melton, 343 Wis. 2d 784, ¶¶22–23 (citing Henley,

328 Wis. 2d 544, ¶73).

¶54 As the party asserting the existence of inherent

authority to exercise this power, Melton carries the burden of

establishing that the power is necessary for efficient and

effective functioning of a court. See Davis, 226 Wis. 2d at

751. Melton has failed to meet this burden.

¶55 Melton's concern about DOC misuse of the first

disputed PSIs——instead of the second PSIs utilized in

sentencing——raises several fundamental questions. The fact that

a court orders a second PSI that omits certain suspect

information does not necessarily mean that the deleted

information is false or irrelevant for correctional purposes.

The deleted information here pertains to Melton's statements to

police with respect to certain uncharged offenses. These

uncharged offenses may never be prosecuted because the

information in the PSIs was not accurate, or was cumulative and

did not justify additional prosecution, or would be subject to

suppression on constitutional grounds. Information that may be
inappropriate for judicial consideration in sentencing might be

relevant and valuable in correctional programming. This is not
the case to consider such issues.

¶56 The DOC is required to keep a copy of its PSI/PSIs in
its "case record." Wis. Admin. Code § DOC 328.30(1)(j) (Dec.

2006). After a DOC agent authors a PSI and sends the report to

the circuit court, the agent is likely to have access to an

electronic copy of the PSI, and may keep a paper copy for his or
23
 No. 2011AP1770-CR & 2011AP1771-CR

her own records. The PSI writer may also have documentary

evidence from third parties to support information outlined in

the PSI. Consequently, judicial power to physically destroy

copies of a PSI would be ineffectual in relation to the DOC if

it did not include the power to scrub DOC computers and purge

DOC paper files.

¶57 Inherent authority would not sustain incursions of

this magnitude into the operations of a separate branch of

government. The DOC's actions, past or future, would not

threaten or impair the operation of the judiciary. The DOC's

use of the PSI would not implicate the efficient and effective

functioning of a circuit court. See State v. Bush, 185

Wis. 2d 716, 722–24, 519 N.W.2d 645 (Ct. App. 1994).

¶58 In Bush, a defendant suggested that a circuit court

had the inherent authority to "strike" a PSI containing

allegedly inaccurate information that the DOC relied on for

correctional programming and order a new PSI.20 Id. at 721–22.

The court of appeals declined to decide the issue of inherent

authority, affirming the decision of the circuit court on other

grounds. Id. at 722. However, the analysis in Bush is

instructive on why striking and ordering a new PSI for DOC use

does not implicate a court's inherent authority.

20
The defendant in Bush sought to correct the PSI long
after the entry of judgment and original sentencing in the case.
State v. Bush, 185 Wis. 2d 716, 720–21, 519 N.W.2d 645 (Ct. App.
1994). The defendant's sole reason for striking the allegedly
inaccurate PSI was the "adverse effects of these inaccuracies on
his parole and program reviews in the prison." Id. at 721.

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 No. 2011AP1770-CR & 2011AP1771-CR

¶59 The Bush court explained that the defendant

essentially requested the court to tell [DOC] how it
is to use its records and how it is to correct errors
in those records. Courts are not well-situated to
make judgments on [DOC's] use of its own records and
administration of its own rules. . . . We conclude
that policy principles and considerations of judicial
administration dictate that courts should not exercise
their jurisdiction to correct PSIs for reasons solely
related to [DOC] administration.
Id. at 723–24 (footnote omitted). We agree with the Bush

court's reasoning. The power to modify——"strike" or destroy——a
PSI for reasons related to DOC administration is not an inherent

power of the circuit court.

¶60 Melton and the court of appeals also argue that a

court has inherent power to order the destruction of a PSI so as

to prevent confusion caused by two PSIs in a defendant's court

record. Again, Melton fails to meet his burden of showing that

the power of ordering PSI destruction is necessary for efficient

and effective functioning of a court.

¶61 When a court has justification for ordering a second

PSI, it should be able to seal the first PSI, label it so

unmistakably, and provide such a clear, written explanation of

its action that the possibility of subsequent misuse is

miniscule. Destruction is not necessary for the fair and

efficient administration of justice.

¶62 Failing to destroy the disputed PSIs in this case

results in no immediate harm to Melton in the courts; it creates

only potential harm, at most. Furthermore, this potential harm

depends upon a judge disregarding the court-ordered seal on the

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 No. 2011AP1770-CR & 2011AP1771-CR

disputed PSIs, using the disputed information from those PSIs,

and using the disputed information in a resentencing. We are

not persuaded that the potential of mistakenly using disputed

PSIs at a resentencing is sufficient for a court to justify the

invocation of inherent authority, especially if the court

employs proper safeguards.

¶63 Therefore, we hold that courts do not possess the

inherent authority to order the destruction of a PSI on any of

the grounds argued by Melton, see supra, ¶48, because it is not

necessary for the efficient and effective functioning of a

court.

C. Correcting and Preserving a Disputed PSI

¶64 We turn now to the procedure that ought to be employed

when a party disputes a PSI.

¶65 A defendant has the right to challenge a PSI that he

or she believes is "inaccurate or incomplete." Greve, 272

Wis. 2d 444, ¶11 (citing Watson, 227 Wis. 2d at 194); State v.

Perez, 170 Wis. 2d 130, 141, 487 N.W.2d 630 (Ct. App. 1992).

"In the event the defendant wishes to contest any of the factual

matters set forth in a PSI, the defendant is entitled to an

evidentiary hearing where evidence regarding the issue in

controversy may be presented by the State or the defendant."

State v. Suchocki, 208 Wis. 2d 509, 515, 561 N.W.2d 332 (Ct.

App. 1997) (citation omitted).

¶66 To secure a hearing the defendant should file a motion

with the court (1) identifying specific problems with the PSI,

and (2) requesting specific remedies to deal with those
26
 No. 2011AP1770-CR & 2011AP1771-CR

problems. Problems include inaccurate or objectively false

information, incomplete information, or unfairly prejudicial

information. In the Suchocki case, the defendant challenged the

entire PSI on grounds that the PSI author was biased because she

was married to the prosecuting attorney. Suchocki, 208

Wis. 2d at 513.

¶67 Wisconsin Admin. Code § DOC 328.29(3) reads: "Arrest

records that did not lead to conviction and not confirmed by the

client may not be used as a source of information in a

presentence investigation and report, except that adjudications

under s. 961.47, Stats., and ch. 54, 1975 Stats., misdemeanant

expunction, and pending charges may be included." A defendant

may object to the inclusion of information in the PSI that is

inconsistent with DOC rules, but the validity of such an

objection may require a judicial ruling.

¶68 An evidentiary hearing may not be necessary if the

parties are able to stipulate to additions or corrections to the

PSI, with the approval of the court.

¶69 The remedies requested in the motion should be
tailored to the problems alleged. Some objections may be

addressed by striking portions of the PSI before or during the
sentencing hearing. Bush, 185 Wis. 2d at 724 n.1.

¶70 "Striking," in this context, may mean different things

to different judges. One dictionary defines strike as "[t]o

eliminate or expunge." The American Heritage Dictionary of the

English Language 1779 (3d ed. 1992). Black's defines "strike"

to mean "[t]o expunge, as from a record." Black's Law
27
 No. 2011AP1770-CR & 2011AP1771-CR

Dictionary 1559 (9th ed. 2009). "Strike" can also mean to

disregard something said or presented, like a question,

testimony, or evidence. See, e.g., Jay E. Grenig 4A Wis.

Pleading & Practice § 32A:76 (5th ed. 2009) ("There should be a

ruling on a motion to strike evidence and to instruct the jury

to disregard." (emphasis added)) (footnote omitted); see also

Black's Law Dictionary 1110 (9th ed. 2009).

¶71 We think "strike" can mean to redline21 or line through

objected-to information, to identify and make marginal notes

disavowing objected-to information,22 to redact objected-to

information, to make a record that the court will not use

objected-to information, and the like.

¶72 Redaction of information in a PSI is an accepted form

of striking available to a court. See, e.g., State v. Parent,
2006 WI 132, ¶45, 298 Wis. 2d 63, 725 N.W.2d 915. "Redaction"

means "[t]he careful editing of a document, esp[ecially] to

remove confidential references or offensive material." Black's

Law Dictionary 1390 (9th ed. 2009). Courts outside of Wisconsin

have utilized the redaction method of correcting PSIs, although

the term seems synonymous with striking portions of PSIs.

21
See, e.g., State v. Molen, 231 P.3d 1047, 1058 (Idaho Ct.
App. 2010) (explaining that "redlining" a PSI is when "the court
physically notes which portions [of the report] are excluded").
22
The Wisconsin Judicial Benchbook devotes a small amount
of space suggesting how to correct "errors" in a PSI. 1A Wis.
Judicial Benchbook CR36-21 (3d ed. 2012) (recommending that
judges should "[n]ote corrections or disputes in [the] margin of
[the] PSI and order all copies corrected").

28
 No. 2011AP1770-CR & 2011AP1771-CR

People v. Freeman, 889 N.Y.S.2d 119 (N.Y. App. Div. 2009)

(holding that certain information in a PSI "should have been

redacted because the PSI contained clearly erroneous

information").

¶73 In our view, striking does not mean destroying the

PSI.23 It means isolating objected-to portions of a PSI so that

they will not be considered or used against the defendant.

¶74 Some problems may require the preparation of a new

PSI. A new PSI may be ordered if problems so permeate the first

PSI that striking is impractical or because substantial

additional information should be added to the PSI for

completeness.

¶75 When the court orders selective striking or redacting,

it should collect copies of the PSI from the prosecutor and the

defendant to conform their copies to the court's agreed-upon

changes. When the court orders a new PSI, the court should

collect copies of the first PSI and securely seal them with the

court's copy.

¶76 At the hearing on the defendant's motion, at the
sentencing hearing, or in writing, the court should make a

23
The federal courts also have a procedure for challenging
disputed information in a PSI. Fed.R.Crim.P. 32(i)(3)(B)–(C).
At sentencing, a federal court must rule on any disputed portion
of a PSI and append a copy of its determinations to any copy of
the PSI made available to the Bureau of Prisons. Id.; see also
United States v. Lopez, 907 F.2d 1096, 1101 (11th Cir. 1990). A
federal court may also determine that a ruling is unnecessary
because the disputed matter will not affect sentencing or the
court will not consider it in sentencing. Fed.R.Crim.P.
32(i)(3)(B)–(C).

29
 No. 2011AP1770-CR & 2011AP1771-CR

record memorializing what objections were made to the PSI and

how the court resolved those objections. Transcripts, written

explanations, corrected copies of PSIs, and court orders should

be forwarded to the PSI writer and to the DOC for incorporation

into the "case record."

¶77 We think the court is more likely to achieve success

in dealing with the DOC by carefully explaining what it has done

and why than by trying to order the DOC to alter its records.24

¶78 Finally, the court should securely seal any

objectionable, superseded PSIs together with all collected

copies. The court should clearly label a superseded PSI and

distinguish it from a new PSI by different markings and clear

explanations and instructions.

¶79 Methodically following these procedures should

eliminate most problems associated with a disputed PSI.

IV. CONCLUSION

24
In Bush, the court was asked to correct a PSI well after
the defendant had been sentenced. Bush complained about
misinformation in the PSI, but he failed to read the document
before the sentencing hearing. Bush, 185 Wis. 2d at 723. The
court stated: "While the trial court could appropriately modify
Bush's sentence based on erroneous information in the PSI,
because the PSI is now under the Department of Corrections'
control, a motion to correct the information contained in the
PSI should be directed to that agency." Id. (emphasis added).

There are limits to the court's authority to interfere with
the operations of a separate branch of government. As the Bush
opinion suggests, however, a defendant is entitled to ask the
DOC to correct clearly inaccurate information in a DOC-authored
document.

30
 No. 2011AP1770-CR & 2011AP1771-CR

¶80 We conclude that courts do not have either express or

implied statutory authority to order the destruction of PSIs.

The PSI statute, the administrative code, and Supreme Court

Rules on record retention implicate principles of preservation

and confidentiality, not destruction. We also conclude that

courts lack the inherent authority to order the destruction of

PSIs on the facts before us or on any of the arguments Melton

has made because such power is not necessary to a court's

efficient and effective administration of justice. A court has

adequate means of dealing with errors, omissions, or prejudicial

material in a PSI without physically destroying the disputed

report. A court can strike or redact objected-to portions of a

PSI and make a record that the court will not use the objected-

to information. In unusual cases, a court can order that a

corrected PSI be prepared, and it can seal and clearly label the

superseded report.

¶81 To forestall further confusion on the issue and

mitigate the possibility of error, we have outlined procedures
that should be followed when the bench and bar are confronted

with disputed PSIs.

By the Court.—The decision of the court of appeals is
reversed.

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 No. 2011AP1770-CR & 2011AP1771-CR.akz

¶82 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I

concur with the majority and write separately to clarify that

under the right circumstances, albeit rare, the circuit court

has authority to destroy a PSI. It is not unusual for a

defendant to dispute certain contents of a PSI, and here, the

defendant lodged very specific complaints, to specific

paragraphs, on specific pages. The record here, however, does

not support destruction of the PSI. Given these objections, a

court typically might strike those disputed portions from the

PSI and explain that those matters would not be considered for

purposes of sentencing.

¶83 Our circuit courts possess the inherent power to,

inter alia, "'ensure the efficient and effective functioning of

the court, and to fairly administer justice.'" State v. Melton,

2012 WI App 95, ¶22, 343 Wis. 2d 784, 820 N.W.2d 487 (quoting

State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544, 787

N.W.2d 350). I am reluctant to diminish the authority that is
endowed to our circuit courts, which are on the front lines.

Circuit courts do not often need to rely on their inherent

power, but when it is absolutely necessary, they should be

allowed to exercise that power. Under these facts, however, I

cannot conclude that the circuit court properly exercised its

inherent authority in ordering the destruction of this PSI.

¶84 For the foregoing reasons, I respectfully concur.

¶85 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurrence.

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1