Counsel’s Representation Suffices to Verify PSI Review Under Rule 32(c)(3)(A); Failure to Object Waives Challenge

Introduction

In State of West Virginia v. Thomas Layton (No. 24-685), the Supreme Court of Appeals of West Virginia affirmed the Jackson County Circuit Court’s sentencing order against a defendant who entered an Alford/Kennedy plea to several sexual offenses. The appeal presented a focused procedural question: does West Virginia Rule of Criminal Procedure 32(c)(3)(A) require a sentencing judge to personally and directly ask the defendant whether he has read and discussed the presentence investigation (PSI) report, or may the court rely on defense counsel’s representation to that effect?

The Court answered by reaffirming and clarifying two complementary principles. First, Rule 32(c)(3)(A)’s verification requirement can be satisfied through counsel’s on-the-record representation that the defendant has read and discussed the PSI; no personal colloquy with the defendant is mandated. Second, when a defendant has been given the PSI in advance, counsel represents that both counsel and client have reviewed it, and no objection is raised at sentencing, any challenge to the adequacy of the court’s verification or to the PSI’s contents is waived. Because the petitioner neither objected below nor alleged any substantive inaccuracy in the PSI on appeal, the Court affirmed.

Case Background and Parties

The Jackson County Grand Jury indicted Thomas Layton on thirteen counts in March 2023, including second-degree sexual assault, third-degree sexual assault, and sexual abuse by a person in a position of trust. On February 9, 2024, Layton entered an Alford/Kennedy plea to three counts of third-degree sexual assault and the lesser-included felony attempt to commit sexual abuse by a person in a position of trust. The circuit court accepted the plea following a thorough colloquy and ordered a presentence investigation.

At sentencing on May 20, 2024, defense counsel stated on the record that counsel had received and reviewed the PSI and that Layton had also reviewed it; counsel flagged a small factual discrepancy but offered no substantive corrections and raised no objections. Layton, in his allocution, sought leniency and did not discuss the PSI. The court imposed one-to-five-year terms for each of the three third-degree sexual assault counts, to run consecutively to each other, and one-to-three years for the attempt count, to run concurrently. The court’s written order noted that both parties had an opportunity to read and discuss the PSI pursuant to Rule 32(b), and that there were no unresolved objections. Layton appealed, arguing that the court erred by failing to directly ask him whether he had read the PSI, as he claimed Rule 32(c)(3)(A) requires.

Summary of the Opinion

The Supreme Court affirmed in a memorandum decision (issued September 10, 2025), concluding:

• Rule 32(c)(3)(A) requires a court to verify that the defendant and counsel have read and discussed the PSI, but the rule does not require the court to ask the defendant personally so long as the record contains an adequate representation, including from counsel, that both have done so.
• Existing precedent permits verification by asking “the defendant, his lawyer, or both,” and the circuit court followed that practice here.
• Any complaint about the PSI or the court’s process was waived by the failure to object below, particularly where counsel’s statements and even identification of a minor discrepancy confirmed prior review.
• The petitioner did not claim any inaccuracy in the PSI on appeal, nor did he show prejudice from the alleged procedural lapse.

The Court distinguished the case on which Layton relied (State v. Rogers) and found that Bleck and Aaron were controlling. The sentencing order was within the circuit court’s discretion, and there was no violation of a statutory or constitutional command.

Analysis

Precedents Cited and Their Role

• State ex rel. Aaron v. King, 199 W. Va. 533, 485 S.E.2d 702 (1997).

  Aaron addresses a court’s obligation with respect to PSI review at sentencing. It states that a circuit court must ascertain whether a defendant has had the opportunity to review the PSI report and may do so by asking “the defendant, his lawyer, or both.” Layton’s core holding flows directly from this language: Rule 32(c)(3)(A) verification can be accomplished by counsel’s on-the-record representation that both attorney and client have read and discussed the PSI. The Court treated Aaron as dispositive on the method of verification and rejected the petitioner’s argument that a personal colloquy with the defendant is required.

• State v. Bleck, 243 W. Va. 293, 843 S.E.2d 775 (2020).

  In Bleck, the defendant challenged an allegedly incorrect PSI fact for the first time on appeal. The Court held that “the appropriate time to object to any portion of a [PSI] report is prior to the sentencing hearing, or at the very least, for good cause, prior to the imposition of sentence,” and found waiver where counsel had confirmed receipt, the court offered an opportunity to object, and counsel even lodged one objection—demonstrating review. Layton’s record is materially similar: counsel confirmed mutual review, noted a minor discrepancy, and neither party lodged substantive objections. Bleck therefore supplied the waiver framework that foreclosed Layton’s appellate claim.

• State v. Rogers, No. 14-0373, 2015 WL 869323 (W. Va. Jan. 9, 2015) (memorandum decision).

  Rogers concerned whether a defendant’s failure to object to the PSI at sentencing amounted to waiver when the court did not specifically ask him if he objected. The Court held the defendant had ample time to object and failed to do so, thus waiving the issue. Layton attempted to invert Rogers to argue that the court must specifically ask the defendant about the PSI. The Court rejected this reading, explaining that Rogers does not impose a requirement of direct defendant inquiry; it simply confirms that failure to object when given the opportunity results in waiver. Rogers thus undermined, rather than supported, Layton’s position.

• Standards of Review:
  • State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997): Sentencing orders are reviewed for abuse of discretion unless they violate statutory or constitutional commands.
  • Phillip Leon M. v. Greenbrier County Board of Education, 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): Interpretations of statutes and rules are reviewed de novo.

  Applying these standards, the Court treated the meaning of Rule 32(c)(3)(A) de novo and found no legal error in the circuit court’s method of verification, while reviewing the sentencing disposition itself deferentially.

• Alford/Kennedy Plea Context:

  The plea posture was noted with citations to Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) and North Carolina v. Alford, 400 U.S. 25 (1970), but the Court’s reasoning on PSI verification did not turn on the Alford/Kennedy nature of the plea.

Legal Reasoning

1. Text and Structure of Rule 32(c)(3)(A).

   The rule directs that “[b]efore imposing sentence, the court must … verify that the defendant and defendant’s counsel have read and discussed the presentence report.” The petitioner read this to require direct questioning of the defendant. The Court rejected that interpretation, pointing out that nothing in the rule forbids verification through counsel, and Aaron expressly authorizes verification by asking “the defendant, his lawyer, or both.” A representation by counsel that both have reviewed and discussed the report satisfies the rule’s command that the court “verify” the fact of mutual review and discussion.

2. Record-Based Verification.

   The sentencing transcript showed that defense counsel told the court: “I received it and I reviewed the PSI. My client has reviewed the PSI. We have no substantive additions or corrections,” while noting a small factual discrepancy. This was enough to establish compliance with Rule 32(c)(3)(A), particularly when paired with the defendant’s silence on the issue during allocution and the sentencing order’s recital that both parties had an opportunity to read and discuss the PSI.

3. Waiver Through Failure to Object.

   Even if the verification method could be debated, the Court applied Bleck’s waiver principle. The proper time to object to the PSI or the court’s process is before or at sentencing, when the court can resolve disputes or cure any omissions. Here, counsel’s statement and the absence of objections (despite time and invitation to raise them) demonstrated review and forfeited later complaint. The Court emphasized that Layton did not even allege any substantive inaccuracy in the PSI on appeal.

4. Distinguishing Rogers.

   The petitioner’s reliance on Rogers was misplaced. Rogers did not impose a requirement that a court personally question the defendant about the PSI. It affirmed that a defendant who has the report in advance and a fair chance to object must do so at sentencing or waive the issue. Thus, Rogers buttresses the waiver disposition rather than supporting Layton’s position.

5. No Prejudicial Error; Appropriate Use of Memorandum Disposition.

   Finding no substantial question of law and no prejudicial error, the Court resolved the appeal by memorandum decision under Rule 21(c). The combined effect of Aaron and Bleck made the issue straightforward: counsel’s representation sufficed, and the absence of objection waived any further challenge.

Impact and Practical Implications

• Clarifies verification practice at sentencing.

  Layton confirms that West Virginia trial judges may satisfy Rule 32(c)(3)(A) by accepting counsel’s on-the-record statement that the defendant and counsel have reviewed and discussed the PSI. A personal colloquy with the defendant is permissible but not required.

• Reinforces waiver for PSI objections.

  Defendants must raise objections to the PSI’s contents or to the sentencing process before or at the sentencing hearing. Silent acquiescence—especially following counsel’s representation of review—waives later challenges. This promotes efficiency and ensures accuracy when the court can still remedy mistakes.

• Counsel’s responsibilities.

  Defense attorneys should diligently review the PSI with clients and place a clear representation on the record. If inaccuracies exist, they must be raised before sentencing or, for good cause, before the sentence is imposed. Failure to do so will almost certainly foreclose appellate relief. Prosecutors and probation officers can expect courts to rely on the record developed by counsel, which heightens the importance of circulating the PSI in sufficient time for meaningful consultation.

• Judicial best practices remain advisable.

  Although not required, many judges may continue to make a brief, personal inquiry of the defendant to avoid later disputes. Layton does not discourage that practice; it simply holds that counsel’s representation suffices for compliance.

• Scope and limitations of the ruling.

  The decision does not alter standards for accuracy of PSIs or the grounds for challenging them. It also does not resolve ineffective-assistance claims concerning PSI review; such claims typically arise in collateral proceedings and require a different record. Finally, the Court’s analysis turned, in part, on the absence of any claimed inaccuracies or prejudice in this case.

Complex Concepts Simplified

• Presentence Investigation (PSI) Report: A report prepared for the court before sentencing that summarizes the defendant’s background, offense conduct, criminal history, and other factors relevant to sentencing. Parties may raise factual objections to ensure accuracy.
• Rule 32(c)(3)(A) (W. Va. R. Crim. P.): Requires the court, before imposing sentence, to verify that the defendant and defense counsel have read and discussed the PSI. Layton clarifies that this verification may be established via counsel’s representation.
• Alford/Kennedy Plea: A guilty plea in which the defendant does not admit the underlying facts but acknowledges that the evidence is sufficient for conviction and pleads in his best interests (North Carolina v. Alford; Kennedy v. Frazier). It is treated as a conviction for sentencing.
• Waiver vs. Forfeiture at Sentencing: If a party fails to object to the PSI or to the court’s process when given an opportunity at sentencing, the issue is generally deemed waived and cannot be raised on appeal absent extraordinary circumstances.
• Consecutive vs. Concurrent Sentences: Consecutive sentences run back-to-back; concurrent sentences run at the same time. Layton received three consecutive one-to-five-year terms on the third-degree sexual assault counts, concurrent with a one-to-three-year term on the attempt count.
• Memorandum Decision (Rule 21(c)):: A streamlined appellate disposition used where no substantial question of law is presented and no prejudicial error is found. It carries persuasive value and clarifies the application of existing law to recurring issues.

Conclusion

State v. Layton reaffirms a practical and widely followed approach to PSI verification: a trial court satisfies Rule 32(c)(3)(A) by relying on defense counsel’s on-the-record representation that both counsel and defendant have reviewed and discussed the PSI; a personal colloquy with the defendant is not mandatory. The decision also underscores a robust waiver rule—objections to the PSI or to sentencing procedure must be raised before sentencing or, at the latest, before the court imposes sentence.

For practitioners, the takeaways are clear. Defense counsel should ensure timely review of the PSI with the client and make or preserve any objections before sentencing; prosecutors and courts should structure the record to reflect compliance with Rule 32. For judges, while Layton confirms that counsel’s representation suffices, a brief personal verification from the defendant remains a sound practice to forestall later disputes. In short, Layton strengthens procedural clarity at sentencing while aligning West Virginia practice with established precedent, promoting finality and accuracy in the sentencing process.