Absconding Does Not Waive the Right to a Presentence Investigation: The Conjunctive Rule 32(b)(1) Mandate in State v. DePriest

Absconding Does Not Waive the Right to a Presentence Investigation: The Conjunctive Rule 32(b)(1) Mandate in State v. DePriest

Introduction

In State of West Virginia v. James Carroll DePriest, the Supreme Court of Appeals of West Virginia vacated a sentence imposed without a presentence investigation and report (PSI/PSR) after the defendant absconded from home incarceration pre‑sentencing. The Court clarified two important propositions. First, a defendant has no constitutional right to a PSI. Second—and central to this opinion—West Virginia Rule of Criminal Procedure 32(b)(1) requires a PSI unless all three conjunctive conditions are satisfied, and a defendant’s flight does not waive the right to have a PSI prepared and considered; it waives only the right to participate in the investigation. Because the circuit court sentenced Mr. DePriest without a PSI based on an incorrect waiver finding, the Court vacated the sentence and remanded for a PSI and a new sentencing in compliance with Rule 32.

The case presents a recurring and practical question for West Virginia sentencing courts: what to do when a defendant obstructs or fails to cooperate with the presentence process. DePriest establishes a clear rule that protects the integrity of individualized sentencing while acknowledging the consequences of a defendant’s noncooperation.

Summary of the Opinion

  • No constitutional right: The Court rejected the defendant’s claim of a due process right to a PSI, aligning with federal and state authority that no such constitutional right exists.
  • Rule 32 controls: Under Rule 32(b)(1), a sentencing court must receive and consider a PSI unless all three requirements are met: (A) the defendant waives the PSI; (B) the court finds the existing record allows a meaningful exercise of sentencing discretion; and (C) the court explains that finding on the record.
  • No waiver by absconding: The defendant’s absconding did not waive his right to have a PSI prepared. It waived only his right to participate in the PSI interview. The probation office could still compile a PSI from other sources.
  • Harmless error inapplicable: Unlike a mandatory sentencing context (as in the Court’s memorandum decision in Jeffers), the circuit court here had discretion (e.g., to consider alternative sentencing). Therefore, any Rule 32 error was not harmless.
  • Remedy: Sentence vacated; case remanded with directions to order a PSI and conduct a new sentencing consistent with Rule 32.

Factual and Procedural Background

  • Charge and bifurcation: Mr. DePriest was indicted for failure to provide notice of sex offender registration changes, third or subsequent offense. The court bifurcated the trial on the substantive charge and prior convictions.
  • Verdict and admissions: A jury convicted him on September 14, 2022. On September 21, 2022, he waived jury on the prior-conviction element and admitted at least two prior failures to register.
  • Bond and absconding: The court continued bond with home incarceration and referred the case for a PSI. In October 2022, probation reported that Mr. DePriest removed his ankle monitor and absconded; bond was revoked.
  • Missed PSI and sentencing: He failed to appear for the PSI interview and for a December 9, 2022 sentencing. After apprehension in April 2023, he appeared at a May 5, 2023 hearing and sought a continuance because no PSI existed. The court denied the request, finding his flight waived a PSI, and imposed an indeterminate 10–25 year sentence under W. Va. Code § 15‑12‑8(c).
  • Appeal: He challenged sentencing without a PSI as unconstitutional and contrary to Rule 32.

Detailed Analysis

Precedents and Authorities Cited and Their Influence

  • Review standard: The Court invoked Syllabus Point 1 of State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997), confirming sentences are reviewed for abuse of discretion unless they violate statutory or constitutional commands. Because Rule 32 has the force of law, violating it is a legal error, not protected by deference.
  • Rules as “statutory” commands: Stern Bros. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977), establishes that court-promulgated administrative rules have “the force and effect of statutory law.” This frames Rule 32(b)(1) as binding in the same way as a statute.
  • Rule 32’s conjunctive test: The Court relied on Syllabus Point 4 of State v. McDonald, 250 W. Va. 532, 906 S.E.2d 185 (2023), that a PSI is required unless all three conditions in Rule 32(b)(1)(A)-(C) are met. This authority is the lynchpin for vacating the sentence.
  • No constitutional right to a PSI: The Court aligned with federal and state precedent: Elswick v. Holland, 623 F. Supp. 498 (S.D. W. Va. 1985), citing Vines v. Muncy, 553 F.2d 342 (4th Cir. 1977); State v. Patterson, 674 A.2d 416 (Conn. 1996); and Brown v. State, 924 S.W.2d 311 (Mo. Ct. App. 1996), among others, to dispose of the due process claim.
  • Waiver doctrine: The Court quoted Syllabus Point 6 of State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996) (“Waiver is the intentional relinquishment or abandonment of a known right”), and canvassed authorities distinguishing express and implied waiver (Yates v. American Republics Corp., 163 F.2d 178 (10th Cir. 1947); Parsons v. National Interstate Ins. Co., 544 F. Supp. 3d 1202 (D. Utah 2021); Phillips v. People, 443 P.3d 1016 (Colo. 2019); State v. Cooley, 233 P.3d 713 (Haw. Ct. App. 2010); and Vreeland v. Zupan, 906 F.3d 866 (10th Cir. 2018)). These authorities structure the Court’s core ruling on what flight does—and does not—waive.
  • Conduct inconsistent with a right: The Court invoked Berghuis v. Thompkins, 560 U.S. 370 (2010), for the proposition that acting in a manner inconsistent with the exercise of a right can imply waiver. Applying that, the Court found absconding is inconsistent with participating in an interview, not with the existence of a PSI compiled from other sources.
  • Practical PSI completion when a defendant absconds: The Court cited People v. Thompson, 588 N.Y.S.2d 778 (App. Div. 1992), noting a PSI may be incomplete due to absconding, yet the defendant cannot complain if the probation department proceeds without an interview. That case reinforces that the investigation and report can—and should—go forward using available information.
  • Harmless error and mandatory sentencing: Distinguishing its memorandum decision in State v. Jeffers, No. 23‑106, 2025 WL 2201726 (W. Va. Aug. 4, 2025), the Court explained that where the circuit court lacks sentencing discretion (e.g., life without mercy mandated by the jury’s verdict), PSI denial may be harmless; but where discretion exists (as here), Rule 32 compliance matters and error is not harmless.
  • Advisory opinions: The Court declined to opine on Rule 32(b)(1)(B)-(C) after finding (A) unsatisfied, citing the longstanding rule against advisory opinions (Mainella v. Board of Trustees, 126 W. Va. 183, 27 S.E.2d 486 (1943); see also Commonwealth v. Solano, 129 A.3d 1156 (Pa. 2015) on conjunctive tests).
  • Trial Court Rule 43: The Court underscored that, in addition to Rule 32, Trial Court Rule 43 imposes deadlines and obligations for PSI preparation. A defendant’s escape does not waive the probation officer’s duties under these rules.

Legal Reasoning

  • Rule 32(b)(1)’s text and structure: The Rule uses “shall” and sets out three exceptions, each of which must be met before a court may sentence without a PSI. This conjunctive architecture demonstrates the Court’s commitment to individualized sentencing informed by a structured information set.
  • Waiver analysis: The Court’s granular approach to waiver distinguishes between the “right to have” a PSI (which promotes informed judicial discretion) and the “right to participate” in the PSI (which is personal to the defendant). Absconding is intentional conduct inconsistent with participating, but not inconsistent with the probation officer’s independent duty to investigate and report from other sources.
  • Scope of implied waiver: Implied waiver is limited to rights logically contradicted by the defendant’s conduct. Because the probation office can obtain criminal history, prior supervision records, victim input, institutional records, and other collateral information without the defendant’s cooperation, the conduct here did not imply a waiver of the PSI itself.
  • Harmless error dispelled: The Court rejected the State’s analogy to Jeffers—mandatory sentencing cases are unique. Where sentencing discretion exists (e.g., considering probation or other alternatives), the court must build and consider the PSI record; bypassing it materially risks an uninformed exercise of discretion.
  • Remedy and procedural directives: Because Rule 32 carries statutory force, its violation is legal error. The appropriate remedy was to vacate the sentence and remand with instructions to order a PSI and resentence after receiving and considering it.

Impact and Prospective Significance

  • For sentencing courts:
    • Courts must ensure a PSI exists and is considered unless the Rule 32(b)(1) exceptions are all satisfied. A defendant’s nonappearance or flight does not free the court from this obligation.
    • If a defendant refuses interview or absconds, the court should direct probation to complete an “incomplete” or “noncooperative” PSI using collateral sources and note the noncooperation.
    • If dispensing with a PSI, the court must obtain an explicit defendant waiver and make the (B) and (C) findings on the record; otherwise, the sentence is at risk on appeal.
  • For probation departments:
    • Proceed with the investigation even without a defendant interview; document efforts to reach the defendant and which components could not be completed.
    • Comply with Trial Court Rule 43 timelines and contents to the extent feasible; defendant noncooperation is not a basis to decline preparation.
  • For prosecutors:
    • Avoid arguing implied waiver of the PSI based solely on noncooperation. Argue instead that the PSI can be completed without the defendant and that any noncooperation should be weighed in sentencing.
    • Harmless error arguments will be limited to cases where the court lacks discretion in sentencing. Where discretion exists, insist on PSI compliance to safeguard the judgment.
  • For defense counsel:
    • Timely object to any sentencing without a PSI and request a continuance for its preparation; make a record that your client does not waive the PSI.
    • Advise clients that fleeing or refusing to participate will not block sentencing and may harm their position on alternatives, but they still retain the right to have a PSI prepared and considered.
  • Systemic effect:
    • DePriest reinforces individualized, evidence‑driven sentencing. By ensuring courts have PSIs—even when incomplete—the decision promotes consistency, transparency, and a robust appellate record.
    • The opinion delineates clear limits on implied waiver, discouraging ad hoc deprivation of process based on defendant misconduct while allowing that misconduct to inform the judge’s discretionary choices.

Complex Concepts Simplified

  • Presentence Investigation and Report (PSI/PSR): A report prepared by a probation officer to aid the judge’s sentencing decision. It typically includes the defendant’s criminal history, personal background, victim input, risk factors, and recommendations. It equips the court to meaningfully exercise sentencing discretion.
  • Rule 32(b)(1) Conjunctive Test:
    • Default: The court must receive and consider a PSI before imposing sentence.
    • Exception: Only if all three are true—(A) defendant waives the PSI; (B) the court finds the existing record is sufficient to exercise sentencing discretion; and (C) the court explains that finding on the record—may the court proceed without a PSI.
  • Waiver, Express vs. Implied:
    • Express waiver: The defendant clearly states—in writing or orally on the record—that they give up a right.
    • Implied waiver: The defendant’s actions are so inconsistent with exercising a right that the law treats the right as intentionally relinquished. In DePriest, flight impliedly waived only participation in the PSI interview, not the existence of the PSI itself.
  • Abuse of Discretion vs. Legal Error:
    • Sentencing is generally reviewed for abuse of discretion. But if a sentence violates a statute or rule with the force of law (like Rule 32), that is legal error, not insulated by deference.
  • Harmless Error:
    • An error that does not affect the outcome can be deemed harmless. In mandatory sentencing contexts, a missing PSI may be harmless. But where the judge has options (e.g., probation versus incarceration), the failure to obtain a PSI is not harmless because it may affect the exercise of discretion.

Practice Pointers and Checklists

For Judges

  • Before sentencing, confirm on the record:
    • Has a PSI been ordered and received?
    • If not, does the defendant expressly waive it? If yes, proceed to (B) and (C).
    • Make explicit findings under Rule 32(b)(1)(B) and explain them under (C) if proceeding without a PSI.
    • If the defendant absconded or refused interview, direct probation to prepare a PSI from available sources and document the noncooperation.

For Probation Officers

  • If the defendant is unavailable:
    • Document attempted contacts and reasons for non-interview.
    • Compile collateral information: NCIC/III criminal history, prior PSIs, supervision notes, victim impact submissions, police reports, institutional and treatment records.
    • Flag any sections that are incomplete due to noncooperation.

For Counsel

  • Defense: Object to sentencing without a PSI; request continuance; propose a timeline for PSI completion; identify mitigating material for inclusion even if the client refuses interview.
  • Prosecution: If the defendant absconded, urge completion of a collateral-source PSI and argue that noncooperation informs sentencing, not that it waives the PSI itself.

Why DePriest Matters

  • Sets a clear, administrable rule: Absconding is not a waiver of the PSI; the PSI remains mandatory unless Rule 32’s conjunctive exceptions are satisfied.
  • Protects individualized sentencing: Ensures courts have a baseline dataset for discretionary decisions, promoting fairness and appellate reviewability.
  • Limits overbroad implied waiver: Aligns waiver doctrine with logical inconsistency—only rights rendered impossible by a defendant’s conduct are impliedly waived.
  • Clarifies harmless error boundaries: The absence of a PSI will rarely be harmless where the trial court can choose among sentencing options.

Conclusion

State v. DePriest cements an important procedural guarantee in West Virginia sentencing: a presentence investigation and report is the default, and dispensing with it requires strict compliance with Rule 32(b)(1)’s conjunctive conditions. The decision rejects the notion that a defendant’s flight categorically waives the PSI; at most, it waives participation in the interview, not the court’s obligation to obtain and consider a report. By distinguishing mandatory from discretionary sentencing in its harmless-error analysis, the Court ensures that the PSI continues to play its central role in individualized justice. The remand directive underscores that when Rule 32 is not followed, the remedy is resentencing after a PSI is properly prepared and considered.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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