Counsel’s Verification Suffices to Satisfy Rule 32(c)(3)(A); Unraised PSI Objections Are Waived — State v. Layton

Introduction

In State of West Virginia v. Thomas Layton, No. 24-685 (Sept. 10, 2025), the Supreme Court of Appeals of West Virginia issued a memorandum decision affirming a sentencing order from the Circuit Court of Jackson County. The appeal turned on a discrete but recurring procedural question at sentencing: What must a trial court do to “verify” that a defendant has read and discussed the presentence investigation (PSI) report with counsel under West Virginia Rule of Criminal Procedure 32(c)(3)(A)?

Layton argued that Rule 32 required the circuit court to directly ask him—rather than his lawyer—whether he had read the PSI report. The Supreme Court rejected that contention, holding that a court may satisfy Rule 32(c)(3)(A)’s verification requirement through counsel’s on-the-record representation that both counsel and the defendant have read and discussed the PSI. The Court further held that where a defendant fails to lodge objections to the PSI prior to or at sentencing, any challenge is waived on appeal.

The case provides practical guidance for trial courts, defense counsel, and prosecutors about creating a clear record at sentencing and reinforces West Virginia precedent on verification, waiver, and the preservation of PSI-related issues.

Summary of the Opinion

The Jackson County grand jury indicted Thomas Layton on multiple sex offenses. On February 9, 2024, he entered an Alford/Kennedy plea to three counts of third-degree sexual assault and one count of felony attempt of sexual abuse by a parent, guardian, custodian, or person in a position of trust. The circuit court accepted the plea and ordered a PSI.

At the May 20, 2024, sentencing hearing, Layton’s counsel stated on the record that he had received and reviewed the PSI, that Layton had also reviewed it, and that there were no substantive additions or corrections (noting only a small factual discrepancy). Layton, during allocution, asked for leniency and did not dispute counsel’s representation or pose any PSI objections. The court sentenced Layton to three consecutive terms of one to five years on the sexual assault counts, with a concurrent term of one to three years on the attempt count. In its written order, the circuit court memorialized that both the State and the defense had the opportunity to read and discuss the PSI, and that there were no unresolved objections.

On appeal, Layton argued the court erred by failing to personally ask him if he had read and discussed the PSI, citing Rule 32(c)(3)(A). The Supreme Court affirmed, holding:

Rule 32(c)(3)(A) requires verification that the defendant and counsel read and discussed the PSI, but it does not require the judge to ask the defendant personally. Verification may be established through counsel’s representation, consistent with State ex rel. Aaron v. King.
Layton’s reliance on State v. Rogers was misplaced; that decision did not impose a requirement of direct questioning of the defendant and, in any event, found waiver where no timely PSI objections were raised.
Under State v. Bleck, objections to PSI content must be made prior to or at sentencing; failing to do so waives the issue on appeal. Layton did not object and, in fact, affirmatively represented through counsel that he and counsel had reviewed the PSI.

Finding no prejudicial error and no substantial question of law, the Court affirmed the sentencing order.

Analysis

Precedents Cited and Their Influence

State ex rel. Aaron v. King, 199 W. Va. 533, 485 S.E.2d 702 (1997). The Court relied on Aaron for the proposition that a circuit court may ascertain Rule 32 compliance by asking “the defendant, his lawyer, or both.” This is the linchpin for rejecting Layton’s argument that personal inquiry of the defendant is mandatory. Aaron makes clear that the method of verification is flexible; what matters is the assurance that the report was read and discussed.
State v. Bleck, 243 W. Va. 293, 843 S.E.2d 775 (2020). Bleck is the Court’s waiver roadmap. It held that the time to object to PSI content is before or at sentencing. Where counsel indicates receipt and review of the PSI and does not raise inaccuracies at sentencing, challenges are waived on appeal. Layton’s case mirrors Bleck: counsel confirmed review and even identified a minor discrepancy, yet no substantive objections were lodged; thus, the issue was waived.
State v. Rogers, No. 14-0373, 2015 WL 869323 (W. Va. Jan. 9, 2015) (memorandum decision). Layton argued that Rogers supported a requirement that the court directly ask the defendant about PSI objections. The Court explained that Rogers actually cuts the other way: it found waiver where the defendant failed to object despite having notice and opportunity, and it did not impose any personal questioning requirement on the trial court.
State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). Cited for the standard of review: sentencing orders are reviewed for abuse of discretion unless they violate statutory or constitutional commands. This frames the appellate deference given to the trial court’s management of sentencing procedure—including Rule 32 verification—absent legal error.
Phillip Leon M. v. Greenbrier Cnty. Bd. of Educ., 199 W. Va. 400, 484 S.E.2d 909 (1996) and Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). These authorities support the proposition that interpretations of rules and statutes are legal questions subject to de novo review. The Court used this to address the scope of Rule 32(c)(3)(A)’s verification requirement.
Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) and North Carolina v. Alford, 400 U.S. 25 (1970). These cases explain the Alford/Kennedy plea framework: a defendant may plead guilty while maintaining innocence if the record supports a likely conviction and the plea is knowing and voluntary. They are background only and did not drive the Rule 32 analysis.

Legal Reasoning Applied

The Court’s reasoning unfolds in two steps: what Rule 32(c)(3)(A) requires, and whether the defendant preserved any challenge.

First, the text of Rule 32(c)(3)(A) provides that “[b]efore imposing sentence, the court must … verify that the defendant and defendant’s counsel have read and discussed the presentence report.” The rule demands verification; it does not prescribe the form of that verification. Relying on Aaron, the Court reiterated that a trial judge may satisfy the rule by asking counsel, the defendant, or both. There is no requirement that the judge personally interrogate the defendant, so long as the court can reliably confirm that both attorney and client read and discussed the PSI.

Second, the record independently demonstrated waiver. Layton’s counsel represented that both he and Layton reviewed the PSI and had no substantive corrections. Counsel even noted a “small factual discrepancy,” signaling that the report had, in fact, been read and considered—precisely the type of engagement Rule 32 is designed to ensure. Layton did not contradict counsel’s statement during allocution or otherwise. Under Bleck, the failure to lodge objections before or at sentencing waives subsequent appellate challenges to PSI review or content. The Court distinguished Rogers, explaining that it does not impose a judicial duty to personally question the defendant; it instead reinforces that timely objections are essential and, if absent, are waived.

The Court also noted that Layton did not allege any reliance on inaccurate PSI content, further undermining a claim of prejudice. Applying the abuse-of-discretion standard to the sentencing order and de novo review to the interpretation of Rule 32, the Court held that there was neither legal error nor prejudice warranting relief.

Impact and Prospective Significance

Although issued as a memorandum decision, Layton clarifies and operationalizes Rule 32(c)(3)(A) verification in day-to-day sentencing practice:

Verification can be satisfied by counsel’s on-the-record representation. Judges need not personally question the defendant to comply with Rule 32, though doing so remains a prudent best practice.
PSI objections must be timely. Defendants and counsel must raise inaccuracies or procedural concerns with the PSI before or at sentencing; failure to do so will generally waive the issue on appeal.
Record-building matters. Trial courts should elicit clear statements from counsel about receipt, review, and discussion of the PSI, and offer the parties an opportunity to state any corrections. Including those points in the written order, as the circuit court did here, substantially fortifies the record against appellate challenges.
Alignment with broader practice. The decision tracks both prior West Virginia authority and common federal practice under the analogous federal rule, which likewise permits verification via counsel’s representation.

For defense counsel, Layton underscores a critical professional obligation: meaningfully review the PSI with the client and place any objections on the record. For trial judges, it supplies a clean, administrable verification approach while encouraging precise recordkeeping. For appellate courts, it reinforces a disciplined approach to preservation and waiver in sentencing procedures.

Complex Concepts Simplified

Presentence Investigation (PSI) Report: A PSI is a confidential report prepared to assist the court at sentencing. It typically includes the defendant’s background, offense conduct, criminal history, victim impact information, and recommendations. Rule 32 ensures the defense has access to the PSI and a chance to challenge inaccuracies before sentencing.
Rule 32(c)(3)(A) “Verification”: Verification means the judge must be satisfied—and make a record—that the defendant and counsel have read and discussed the PSI. The judge may ask counsel, the defendant, or both; there is no rigid requirement to address the defendant personally.
Waiver vs. Forfeiture: Waiver is the intentional relinquishment of a known right (e.g., affirmatively stating there are no objections). Forfeiture is the failure to timely assert a right (e.g., not objecting when given the opportunity). Both can preclude appellate review of PSI issues; Layton’s case reflects waiver/forfeiture principles as applied in Bleck.
Allocution: The defendant’s right to address the court before sentencing. Allocution is a chance to seek leniency and, where appropriate, to raise lingering procedural or factual concerns. Layton used it to request leniency but did not dispute PSI verification or content.
Alford/Kennedy Plea: A plea in which a defendant accepts conviction while maintaining innocence, based on an assessment that the evidence could lead to conviction at trial. It does not dilute Rule 32 rights; defendants entering such pleas still must receive, review, and be able to contest the PSI.
Consecutive vs. Concurrent Sentences: Consecutive sentences run one after the other; concurrent sentences run at the same time. Layton received three consecutive one-to-five-year terms on sexual assault counts, with a concurrent one-to-three-year term on the attempt count.
Memorandum Decision in West Virginia: Under Rule 21, the Supreme Court issues memorandum decisions when the case presents no new or substantial question of law and no prejudicial error. These decisions do not include syllabus points. While their precedential weight is lower than full opinions with syllabus points, they reflect the Court’s application of existing law and can guide practice.

Practical Guidance and Checklists

For Trial Judges

On the record, ask defense counsel whether counsel and the defendant read and discussed the PSI; invite any corrections or objections.
Optionally, also ask the defendant to confirm—this is not required but is a sound best practice that further insulates the record.
State in the written sentencing order that both sides had the opportunity to read and discuss the PSI and whether any objections remain unresolved.

For Defense Counsel

Obtain and thoroughly review the PSI with the client well before sentencing; document the review.
Submit written corrections or objections in advance when feasible; renew or supplement them orally at the hearing.
If the PSI was not received in time or could not be reviewed, say so expressly on the record and seek a continuance.

For Prosecutors and Probation Officers

Ensure timely disclosure of the PSI to the defense to allow meaningful review.
Be prepared to address and, where appropriate, correct factual inaccuracies identified by the defense in advance of sentencing.

Limits and Open Questions

Layton does not hold that a court may ignore a defendant’s express statement that he has not reviewed the PSI. If a defendant disputes counsel’s representation, the court should inquire further and, if necessary, continue sentencing.
Claims that counsel failed to actually review the PSI with the client, contrary to representations, are typically framed as ineffective-assistance claims and are generally addressed in collateral proceedings, not on direct appeal.
The case does not decide whether a complete absence of any on-the-record verification could ever be harmless; here, counsel’s statements and the written order supplied verification.

Conclusion

State v. Layton confirms a practical rule for West Virginia sentencing proceedings: a trial court satisfies Rule 32(c)(3)(A)’s verification requirement when counsel represents on the record that both counsel and the defendant have read and discussed the PSI; the judge need not personally question the defendant. The decision also reiterates that PSI challenges must be raised before or at sentencing; failure to do so waives the issue on appeal.

By anchoring its reasoning in Aaron and Bleck and clarifying the limited reach of Rogers, the Court provides clear guidance for courtroom practice. The takeaways are straightforward: build the record, verify review, and raise any PSI objections in a timely manner. Doing so protects the defendant’s due process interests, streamlines appellate review, and promotes the accuracy and integrity of sentencing.