dissenting.
I would hold that defendants in criminal prosecutions do not have an absolute right under Article I, section 11 of the Oregon Constitution or the Sixth Amendment of the United States Constitution to have a lawyer present at their presentence interviews. I would also note that as a matter of due process the sentencing judge in his sound discretion may be required to allow a defendant in a particular case the right to have his attorney present at the interview. This is not such a case.
It is my opinion that the Article I, section 11 and Sixth Amendment problem should be resolved by “weighing or balancing” the competing interests. State ex rel Ott v. Cushing, 289 Or 695, 617 P2d 610 (1980), State ex rel Johnson v. Richardson, 276 Or 325, 555 P2d 202 (1976), Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972).
“No constitutional questions of consequence are cut and dried. Their solution requires the weighing of competing interests; the constitutional question in this case is no exception.” Buchea v. Sullivan, supra, at 236.
“In State ex rel Johnson v. Richardson, 276 Or 325, 329, 555 P2d 202 (1976) we stated that the rights of the defendant must be weighed against ‘the right of the people, as represented by the state, to present competent, persuasive evidence on the defense raised by the defendant.’ ” State ex rel Ott v. Cushing, supra, at 701-702.
The right of the defendant to have an attorney present at the presentence interview must be balanced and weighed against the right of the people to have a prompt, efficient, and reasonable system of preparing presentence reports.
The mere fact that the presentence interview takes place after the commencement (arrest or arraignment) of a criminal prosecution and before the conclusion (sentence) does not make it adverse in nature. The district attorney or a deputy of that office is not present. The defendant is not sworn as a witness or cross-examined. A court reporter does *337not make a record of the interview. The general presentence interview is normally conducted by a probation officer. One of the functions of the interview is to determine if the defendant is a candidate for probation. Subject to certain exceptions the presentence report is made available to the defendant or his counsel. ORS 137.079.
The majority at 293 Or 317 (1982) says:
“We do not suggest that every defense attorney is duty bound to accompany his or her client at the probation office. Often, little purpose would be served by the presence of counsel at a presentence interview and a conscientious defense attorney would not necesarily feel obliged to attend to protect his client’s interests. After guilt is no longer in issue, the inquiry is into defendant’s background, present situation and attitude. At the hearing, the report of information given by the defendant is subject to disclosure and defense counsel can make objections and present evidence and additional statements by defendant. Given these procedural opportunitites, rarely would there be risk of irremediable harm from the absence of counsel at the presentence interview. Yet circumstances are conceivable where the presence of counsel would be helpful. We do not hold that the presence of counsel is required at every presentence interview or that his absence would constitute ineffective assistance of counsel. Rather, we hold only that Article I, section 11, and the Sixth Amendment require that counsel may not be barred from attendance at a presentence interview.”
In effect the majority has held that the defendant has an absolute constitutional right to have counsel present at the presentence interview, but then has gone further to give the Oregon State Bar some “fatherly advice” by saying that the defendant should exercise this right on only rare occasions.
It is not certain that the bar will accept this “fatherly advice.” In the first place, it is the defendant’s right and not the attorney’s right. The choice to exercise the right rests only with the defendant. Even so, some lawyers may think that they will be subject to a possible malpractice complaint if they do not attend the presentence interview. Others may perceive that their failure to attend will trigger post-conviction proceedings. The defendant may *338demand to have his attorney at the interview to “get his money’s worth.”
Many of the attorneys who attend the presentence interview will be excess baggage. The presence of the attorney, or any third person for that matter, will tend to inhibit the interview.1 The defendant should be given a chance to prove that he or she can handle a one on one interview and thereby show that he or she is a candidate for probation. The probation officer will get a more accurate and complete picture of the defendant at the interview if no third persons are present.
Given the opportunity, I would hold that the right of the people to have a prompt, efficient and reasonable procedure for preparing presentence reports outweighs the defendant’s right to have an attorney present at the pres-entence interview. Setting up an interview for three people instead of two necessarily slows down the system. If the presence of an attorney in the vast majority of cases is not necessary, the efficiency of the procedure is reduced — the time of the attorney would be better spent elsewhere. If the presence of the of the attorney inhibits the interview it is unreasonable to employ and pay one for that purpose.2 The last thing the criminal justice system in Oregon needs is for this court to place upon it an additional burden when the present system, on occasion, sputters, squeaks and groans.
I agree that there are certain isolated cases in which the defendant may need an attorney at the presentence interview. For example, where the defendant has been indicted for two interrelated crimes and has been convicted of one and the other is still pending it may be necessary that an attorney be present to make sure that the *339defendant does not discuss the pending case during the interview.
The most reasonable way to handle this problem is to give all defendants, as a matter of due process, the right to petition the sentencing judge for permission to have an attorney to represent them at the presentence interview. The sentencing judge would then, based upon his sound discretion, determine if an attorney was necessary in the individual case. This procedure would follow that set out by the United States Supreme Court in Gagnon v. Scarpelli, 411 US 778, 93 S Ct 1756, 36 L Ed 2d 656 (1973), regarding the necessity of an attorney to represent the defendant at a probation or parole revocation hearing. The Court at page 666 said:
“We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.”
In this particular case the trial judge exercised his discretion and denied the defendant’s motion to have his attorney present at the presentence interview. The judge in making his ruling said:
“* * *The thrust of your argument is not so much to urge the necessity of legal counsel as a legal advisor but that this man needs someone with whom he trusts and would feel more comfortable and ask that you be there. * * * I think that there are many reasons that having an attorney present at this state of the presentence interview would inhibit the process. * *
I would hold that the trial judge did not abuse his discretion. A further reason for denying the defendant’s petition is that mandamus will not lie to control judicial discretion. State ex el Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953).
For these reasons I dissent.
If the defendant’s attorney is the dominant person present at the interview he will be hard pressed to keep from interjecting himself into the discussion. Anyone who has interviewed a 17 year old juvenile with his parents present knows who answers the questions.
The authority for talking about such a “vulgar” subject as money is Gagnon v. Scarpelli, 411 US 778, 93 S Ct 1756, 36 L Ed 2d 656 (1973), where the United States Supreme Court in considering the defendant’s right to have an attorney at a probation or parole revocation hearing said at page 665:
“Certainly, the decisionmaking process will be prolonged, and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial.”