Introduction

This decision addresses a recurring and practically important question in West Virginia sentencing practice: What happens to the presentence investigation and report when a defendant absconds before sentencing? The Supreme Court of Appeals of West Virginia holds that a defendant’s escape does not waive the statutory-equivalent requirement that a sentencing court receive and consider a presentence investigation and report (often called a “PSI” or “presentence report”) under Rule 32(b)(1) of the West Virginia Rules of Criminal Procedure. While absconding may waive the defendant’s right to participate in the probation interview, it does not waive the right to have the investigation conducted and the report prepared and considered before sentencing unless the strict, conjunctive requirements of Rule 32(b)(1)(A)-(C) are satisfied.

The petitioner, James Carroll DePriest, was convicted of failure to provide sex offender registration changes, third or subsequent offense. After he cut off his ankle monitor and absconded from home confinement pending sentencing, the circuit court sentenced him without a presentence report based on the court’s view that his escape waived that right. Seeking probation or an alternate sentence, the petitioner objected and appealed. The Supreme Court vacated the sentence and remanded with directions to obtain a presentence investigation and report and to resentence in compliance with Rule 32.

Key issues included: (1) whether a defendant has a constitutional right to a presentence investigation and report; (2) whether absconding constitutes waiver of the presentence investigation and report required by Rule 32(b)(1); and (3) whether any error was harmless because the trial court would have imposed the same sentence.

Summary of the Opinion

• No constitutional right. The Court reaffirmed that there is no constitutional right to a presentence investigation and report. Due process does not mandate a PSI; the right arises from Rule 32.
• Rule 32 controls and is mandatory unless a conjunctive three-part test is met. Rule 32(b)(1) requires that probation “make a presentence investigation and submit a report to the court before the sentence is imposed” unless all three conditions are satisfied: (A) the defendant waives a presentence investigation and report; (B) the court finds the existing record enables it to meaningfully exercise sentencing authority; and (C) the court explains that finding on the record. The Court reiterated this is a conjunctive standard as previously stated in State v. McDonald.
• Absconding is not a waiver of the PSI; it is a waiver only of participation. The petitioner’s escape impliedly waived only his right to participate in the interview, not the right to have the investigation and report prepared. The probation office could still assemble a report from other sources.
• Harmless error doctrine from Jeffers inapplicable. Unlike a mandatory sentence, where a judge lacks discretion (as in a life without parole imposed by a jury verdict), here the court had discretion regarding an alternate sentence. Therefore, the error in dispensing with the PSI was not harmless.
• Outcome. The sentence was vacated. The case was remanded with instructions to order a presentence investigation and report and then resentence in compliance with Rule 32.

Analysis

Precedents and Authorities Cited

• State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997) (Syllabus Point 1, in part): Establishes the standard of review—sentencing orders are reviewed for abuse of discretion, unless they violate statutory or constitutional commands. The Court used Lucas to frame the review and, in a footnote, linked the violation here to a “statutory” command because court-promulgated rules have the force of law in West Virginia.
• Stern Bros. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977) (Syllabus Point 1, in part): Confirms that rules promulgated by the Supreme Court of Appeals have the force and effect of statutory law under Article VIII, Section 8 of the West Virginia Constitution. This elevates Rule 32 compliance from mere procedure to a mandatory command.
• State v. McDonald, 250 W. Va. 532, 906 S.E.2d 185 (2023) (Syllabus Point 4, in part): Clarifies that all three conditions in Rule 32(b)(1)(A)-(C) must be met to dispense with a presentence report. The Court relies on McDonald to emphasize the conjunctive nature of the exception.
• State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996) (Syllabus Point 6, in part): Defines waiver as the intentional relinquishment of a known right. This frames the question whether flight constitutes waiver of the PSI requirement.
• Berghuis v. Thompkins, 560 U.S. 370 (2010): Cited for the general proposition that implied waiver can be found when a person acts in a manner inconsistent with exercising a right. The Court uses Berghuis to distinguish between waiving participation (which the petitioner did by escaping) and waiving the existence of a PSI (which he did not).
• State v. Jeffers, No. 23-106, 2025 WL 2201726 (W. Va. Aug. 4, 2025) (memorandum decision): In Jeffers, any error in denying a presentence report was harmless because the sentencing court lacked discretion—life without mercy was mandatory after the jury verdict. DePriest distinguishes Jeffers: where sentencing discretion exists, the error is not harmless.
• State v. Patterson, 674 A.2d 416 (Conn. 1996); Elswick v. Holland, 623 F. Supp. 498 (S.D.W. Va. 1985); Brown v. State, 924 S.W.2d 311 (Mo. Ct. App. 1996): Collected authorities showing there is no constitutional right to a PSI. This supports rejecting the due process claim.
• People v. Thompson, 588 N.Y.S.2d 778 (App. Div. 1992) (Mem.): Illustrates that a PSI may be incomplete due to a defendant’s absconding, yet the absence of an interview does not eliminate the report requirement.
• Mainella v. Board of Trustees of Policemen’s Pension or Relief Fund, 126 W. Va. 183, 27 S.E.2d 486 (1943): Quoted to avoid issuing advisory opinions. Because prong (A) of Rule 32(b)(1) failed (no waiver), the Court did not reach prongs (B) and (C).
• West Virginia Trial Court Rule 43: The Court flags that Rule 43 sets deadlines and duties on probation officers for the PSI. Those obligations persist despite the defendant’s escape.

Legal Reasoning

1. No constitutional entitlement to a PSI. The Court first disposes of the due process argument, aligning with federal and state authorities that a PSI is not constitutionally mandated. This channels the analysis squarely through Rule 32(b)(1).
2. Rule 32(b)(1) is a statutory-equivalent mandate. Rule 32 requires a presentence investigation and report before sentencing unless the court can satisfy three conjunctive conditions: (A) defendant waives; (B) the existing record suffices for meaningful sentencing; and (C) the court explains that sufficiency on the record. McDonald forecloses any “substantial compliance” approach—each prong must be met.
3. No waiver under Rule 32(b)(1)(A). The circuit court treated DePriest’s escape as a waiver of the report. Applying Crabtree’s definition and the Berghuis framework, the Supreme Court draws a critical distinction:
   • What was waived by absconding: the right to participate in the investigation (e.g., to be interviewed by probation). His conduct made participation impossible.
   • What was not waived: the right to have the probation office conduct an investigation using alternative sources (records, victims, law enforcement, treatment providers, NCIC/rap sheets, etc.) and to submit a presentence report for the court’s consideration.
   Because absconding does not logically preclude preparation of a report from other sources, it is not conduct “inconsistent with” the existence of a PSI. Absent an express waiver, Rule 32(b)(1)(A) was not satisfied.
4. Effect on the remaining prongs. Given the conjunctive test, failure of prong (A) ends the analysis. The Court therefore did not reach whether the existing record was sufficient for “meaningful exercise” of sentencing authority (prong B), nor whether the circuit court adequately explained such a finding (prong C). This restraint avoids advisory opinion-making per Mainella.
5. Harmless error argument rejected. The State’s reliance on Jeffers collapses in the face of sentencing discretion. In Jeffers, the trial court had no discretion: life without parole was mandatory based on the jury’s verdict, making any PSI omission harmless. Here, by contrast, the trial judge had discretion, including the ability to consider an alternate sentence such as probation. In discretionary sentencing, denying the PSI cannot be deemed harmless because the report is designed to inform the exercise of discretion.
6. Remedy. The appropriate corrective is to vacate the sentence and remand with instructions to order a presentence investigation and report and then to resentence in compliance with Rule 32.

Practical Impact and Significance

This opinion settles an important procedural point in West Virginia criminal sentencing:

• For trial judges:
  • Do not equate a defendant’s absconding with waiver of the PSI. Absent an express waiver, you must either receive and consider the PSI or make the two additional findings on the record required by Rule 32(b)(1)(B)-(C).
  • If you intend to proceed without a PSI, you must secure an express waiver from the defendant and make prong (B) and (C) findings. Without that, sentencing risks reversal.
  • When a defendant refuses to be interviewed or is unavailable, direct probation to prepare a report from other sources and note the defendant’s nonparticipation.
• For probation officers: Your Rule 32 and Trial Court Rule 43 duties persist even if a defendant has absconded. Prepare the best-available report using records, collateral interviews, and verified data, documenting the reasons for any missing components (e.g., “defendant unavailable for interview”).
• For prosecutors: You cannot rely on a defendant’s flight to eliminate the PSI. If the defense declines to waive expressly, insist on preparation of the report, or—if truly appropriate—seek explicit Rule 32(b)(1)(B)-(C) findings. Harmless error arguments will fail where the court has sentencing discretion.
• For defense counsel and defendants: While absconding will forfeit the chance to shape the PSI through an interview and may be aggravating at sentencing, it does not waive the right to have a PSI prepared and considered. In cases where an alternate sentence is sought, the PSI often provides the essential foundation for mitigation (e.g., treatment history, risk assessments, community support, employment record).
• For appellate review: Ensuring the PSI is in the record allows meaningful appellate scrutiny of discretionary sentencing decisions, promoting uniformity and reducing avoidable reversals.

More broadly, DePriest underscores the Court’s insistence on careful adherence to Rule 32 in discretionary sentencing regimes, including offenses like third-or-subsequent failure to update sex offender registration under W. Va. Code § 15-12-8(c), which carries an indeterminate ten-to-twenty-five-year sentence but still leaves room for alternate sentencing considerations.

Complex Concepts Simplified

• Presentence investigation and report (PSI): A comprehensive report prepared by a probation officer before sentencing, typically including the defendant’s criminal history, personal and social background, mental health and substance use history, victim impact, and risk/needs information. Its purpose is to inform the judge’s choice among sentencing options.
• Rule 32(b)(1)’s conjunctive test: The judge can skip the PSI only if all three things happen: the defendant waives the PSI; the court finds the record is sufficient to sentence meaningfully; and the court explains that finding on the record. Missing any one of these means a PSI is required.
• Waiver vs. forfeiture; express vs. implied:
  • Waiver is an intentional relinquishment of a known right. It can be express (stated orally or in writing) or implied (inferred from conduct inconsistent with the right).
  • Forfeiture is losing a right by failing to assert it timely. DePriest addresses waiver, not forfeiture.
  • In this case, absconding impliedly waived participation in the PSI interview, but not the existence of the PSI itself.
• Discretionary vs. mandatory sentencing: If a statute or verdict fixes a sentence, the judge has no discretion (mandatory). If multiple sentencing options exist (e.g., incarceration vs. probation), the judge exercises discretion, and the PSI is critical. Harmless error arguments are more plausible in mandatory contexts, but not where discretion exists.
• Home incarceration and absconding: Home confinement is a form of pretrial/post-conviction supervision with electronic monitoring. Removing an ankle monitor and fleeing is absconding, which can lead to revocation of bond and prosecution for additional offenses—but it does not eliminate the Rule 32 requirements.

Key Takeaways and Practice Pointers

• Absconding is not an implied waiver of the right to a presentence investigation and report under Rule 32(b)(1). It only waives the right to participate in that investigation.
• To sentence without a PSI, courts must satisfy all three Rule 32(b)(1) prongs and state the necessary findings on the record.
• Harmless error based on State v. Jeffers is limited to situations where the judge has no sentencing discretion. It does not apply where alternate sentencing is possible.
• Probation must still prepare a PSI using available sources even if the defendant does not cooperate, and should document nonparticipation.
• Counsel seeking to forgo a PSI should obtain and memorialize an express waiver and ensure the court makes prong (B) and (C) findings; otherwise, the sentence is vulnerable on appeal.

Conclusion

State v. DePriest establishes a clear and administrable rule for West Virginia trial courts: a defendant’s absconding cannot be treated as a blanket waiver of the presentence investigation and report mandated by Rule 32(b)(1). The decision harmonizes waiver doctrine with the structure of Rule 32, confirms the conjunctive nature of the exceptions recognized in McDonald, and cabins the harmless error approach of Jeffers to non-discretionary sentencing scenarios. By vacating the sentence and remanding for a PSI and resentencing, the Court reinforces the centrality of the presentence report to informed, fair, and reviewable sentencing in West Virginia.