People v. Matzat

Per Curiam.

Defendant, Carl Albert Matzat, appeals as of right from his plea-based conviction and subsequent 20- to 40-year prison sentence for second-degree murder. MCL 750.317; MSA 28.549. On appeal, defendant raises two issues in support of his claim for a remand for resentencing.

Defendant first alleges that two presentence conferences between the sentencing judge and defense counsel, at which the defendant was not present, denied the defendant his right to allocution. GCR 1963, 785.8(2).

This Court has held in several cases that a sentencing conference between the trial judge and defense counsel is not a critical stage of the proceedings, requiring a defendant’s presence. People v McIntosh, 101 Mich App 422; 300 NW2d 584 (1980), People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), People v Worden, 91 Mich App 666; 284 NW2d 159 (1979). Also, defense counsel’s presence at the conference prevented the trial court from obtaining "information about [the] defendant, not equally available to the defendant’s counsel * * *”. People v Oliver, 90 Mich App 144, 149; 282 NW2d 262 (1979), rev’d on other grounds 407 Mich 857 (1979). Finally, our review of the sentencing transcript reveals that both defendant and his attorney were "given the opportunity to address the court before sentencing”. People v *330Berry, 409 Mich 774, 779; 298 NW2d 434 (1980), GCR 1963, 785.8(2), 785.9. The defendant’s claim that he was denied his right to allocution prior to sentencing is thus without merit.

The defendant next argues that he was denied his right to allocution because neither the defendant nor his attorney were informed of a supplement to the presentence report given to the lower court prior to sentencing. The disputed memorandum recommended that the defendant be sentenced to a term of imprisonment of from 10 to 20 years.

The disclosure of presentence reports and the right of a defendant to controvert factual mátters therein is governed by GCR 1963, 785.12, which provides:

"Disclosure of Presentence Reports. The sentencing court shall permit the defendant’s attorney, or if the defendant is not represented by counsel, the defendant, to inspect the presentence report. The prosecution must also be shown the report. Both parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report. The court may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality. When a part of the report is not disclosed, the court shall state on the record the reasons for its action and inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure is subject to appellate review. The defendant’s attorney on appeal has the right- to inspect the presentence report at the county probation department or under the supervision of the Department of Corrections, at the attorney’s option.”

*331A cursory reading of the above rule discloses three essential rules regarding presentence report disclosure prior to appeal.1 Initially, the sentencing court must divulge the contents of the report to the defendant or defense counsel, as well as to the prosecuting attorney. Each side must then be afforded a full opportunity to contest or explain factual assertions contained in the report. Finally, if the sentencing judge deems it advisable to exclude certain factual, opinion, or diagnostic infor-. mation in the report from disclosure, an explanation of the basis for the exclusion must be provided.

We cannot conclude that defendant was permitted his full right "to inspect the presentence report” in the instant case. The court rule above does not limit the defendant’s right of inspection only to those portions of the report available on the day of sentencing. Rather, the defendant’s right of inspection extends to the entire report, with the single exception of those matters properly deleted under the court rule.

We hold, therefore, that the defendant herein was denied his right to inspect his presentence report prior to the imposition of sentence. The defendant’s case is thus remanded for a new sentencing at which an updated presentence report will be prepared and the defendant will be permitted to inspect ánd respond to its contents.

Remanded for a resentencing._

We note Department of Corrections Rule 910(1), 1977 AACS R 791.9910, which provides:

"Rule 910. (1) A presentence report shall contain at least the following information:
"(g) Recommended disposition, unless prohibited by the sentencing court.”
See also People v Books, 95 Mich App 500, 504-505, fn 5; 291 NW2d 94 (1980).