APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (Criminal No. 47-1973)
Aldisert, Adams and Garth, Circuit Judges.
In her appeal from a voluntary manslaughter conviction under the Virgin Islands Code, the defendant raises four contentions: (1) the judgment of the district court was not supported by substantial evidence, (2) the district court treated the indictment as one for murder, when in fact the indictment was for voluntary manslaughter, (3) the district court was biased in sentencing the defendant because of its knowledge of proceedings then pending against her, and (4) the sentence was excessive. Because there is patently no merit in the defendant's first two contentions, we affirm her conviction without the necessity of a detailed exposition. We do, however, find it appropriate to discuss contentions relating to the sentence.
Appellant was tried before a judge sitting without a jury. Two days after the conclusion of her trial, she was sentenced to the maximum penalty of ten years' imprisonment. During the sentencing hearing, defense counsel learned that an oral presentence report had been made to the court. Appellant argues that the substance of that report was never made available to her or to her counsel, thereby depriving them of an opportunity to refute the findings or facts submitted by the probation officer.
Rule 32(c) (2), F.R. Cr. P., made applicable to the District Court of the Virgin Islands, Rule 54(a) (1), F.R. Cr. P., and adopted, 5 V.I. App. II R 32 (c) (2), provides in part: "The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon."
Advisory Committee notes on Rule 32 express a hope that "courts . . . [would] make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences."*fn1 See, United States v. Miller, 495 F.2d 362 (7th Cir., 1974). While this court might well agree with a general policy of encouraging disclosure of presentence reports, defense counsel in this case at no time asked the sentencing judge for disclosure of the oral report made by the probation officer.*fn2 In United States v. Dreer, 457 F.2d 31, 34 (3d Cir. 1972), we were faced with a similar situation and, reasoning that "the rule does not give the defendant a right to examine the report," we found no error because the defendant had not asked to see the report prior to sentencing. We are not persuaded to depart from the Dreer holding in this case.
Appellant additionally contends that the sentence imposed was excessive. It is settled that a federal appellate tribunal will not examine the length of a sentence which is within the statutory maximum unless there be a showing of illegality or an abuse of discretion manifested in the sentencing procedure. United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972); Government of the Virgin Islands v. Venzen, 424 F.2d 521 (3d Cir. 1970); Government of the Virgin Islands v. Rodriguez, 423 F.2d 9 (3d Cir. 1970). Appellant has not shown that the sentence was the result of anything other than "a proper exercise of judicial judgment." United States v. Rodriguez, supra, 423 F.2d at 11.
The question of review of sentences in federal cases is now under active consideration by both the Judicial Conference of the United States and Congress. Proposed Amendment to the Federal Rules of Criminal Procedure, Rule 35(c), would provide for review of sentences by a panel of district judges. S. 716, 93d Cong., 1st Sess. (1973), introduced by Senator Hruska, would provide for review by this court under certain circumstances. See, ABA Approved Draft, Standards Relating to Appellate Review of Sentences (1968); M. Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).*fn3 Unless and until these changes are mandated by Congress, the trial court's discretion as to a sentence will not be disturbed if the sentence falls within statutory authorization and there is no defect in the sentencing procedure.
Appellant next argues that the district court judge improperly considered a criminal charge pending against ...