Dismissed Charges Listed in a Rule 32 PSI Are Not an Impermissible Sentencing Factor Absent Proof of Reliance or Inaccuracy

Introduction

In State of West Virginia v. Anthony Hairston, No. 23-674 (Kanawha County 23-F-153(I)), the Supreme Court of Appeals of West Virginia reviewed a sentencing challenge following a guilty plea to delivering a controlled substance (heroin). The petitioner, Anthony Warren Hairston, argued that the Circuit Court of Kanawha County imposed a harsher sentence by impermissibly considering prior criminal charges that had been dismissed—thereby, he claimed, undermining the presumption of innocence and injecting an improper consideration into sentencing.

The appeal required the Court to address (1) the scope of information a sentencing court may consider when a presentence investigation report (“PSI”) contains arrests and dismissed cases; (2) what qualifies as an “impermissible factor” under West Virginia sentencing review principles; and (3) what a defendant must show on appeal to obtain relief from a sentence that otherwise falls within statutory limits.

Summary of the Opinion

The Court affirmed the sentencing order in a memorandum decision issued February 11, 2026. It held that the record did not support the petitioner’s claim that the circuit court relied on dismissed charges to punish him or treated those dismissals as proof of guilt. The Court emphasized that the PSI’s inclusion of the petitioner’s “court history and criminal record” was mandated by Rule 32, that the petitioner did not dispute the accuracy of that portion of the PSI, and that the sentence imposed (one to fifteen years) fell within the statutory range for delivery of a Schedule I or II narcotic under W. Va. Code § 60A-4-401(a)(i).

Even assuming arguendo that the circuit court had relied on the dismissed matters, the Court noted that the petitioner identified no West Virginia statutory or case authority holding that prior arrests or dismissed charges are “impermissible factors” as contemplated by the Court’s sentencing jurisprudence.

Analysis

Precedents Cited

  • Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997)
    The Court anchored its review in Lucas, reaffirming that sentencing orders are reviewed under a deferential abuse-of-discretion standard, unless they violate statutory or constitutional commands. This framing is critical: it places the burden on the appellant to demonstrate a legal violation, not merely a disagreement with the sentencing court’s evaluative judgments.
  • State v. Sugg, 193 W. Va. 388, 406, 456 S.E.2d 469, 487 (1995)
    Sugg supplied the general rule that an appellate court will not disturb a sentence that falls within the statutory range. Here, the petitioner’s one-to-fifteen-year sentence mirrored the legislature’s prescribed bounds in W. Va. Code § 60A-4-401(a)(i), making the appeal viable only if an impermissible factor (or other legal error) tainted the sentencing calculus.
  • Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982)
    Goodnight provided the doctrinal hinge: sentences within statutory limits are generally unreviewable “if not based on some impermissible factor.” The petitioner attempted to extend Goodnight to cover dismissed charges as an impermissible factor. The Court declined to do so on this record.
  • State v. Moles, No. 18-0903, 2019 WL 5092415, at *2 (W. Va. Oct. 11, 2019) (memorandum decision)
    The Court used Moles to illustrate what has been recognized as impermissible—“race, sex, national origin, creed, religion, and socioeconomic status.” By citing this list, the Court implicitly treated “impermissible factors” as a constrained category rooted in constitutional equality and fundamental fairness, rather than an open-ended invitation to reweigh all background information in a PSI.
  • State v. Brown, 210 W. Va. 14, 28, 552 S.E.2d 390, 404 (2001)
    Brown supported the proposition that a presentence report is mandatory under Rule 32. This mattered because the petitioner’s complaint targeted information included in the PSI—information that the rules require be gathered and presented to the sentencing court.
  • Fox v. State, 176 W. Va. 677, 682, 347 S.E.2d 197, 202 (1986) (quoted in)
    State v. Beck, 243 W. Va. 293, 297, 843 S.E.2d 775, 779 (2020)
    These cases framed the due process floor: a defendant has a right to be sentenced on the basis of accurate information. The Court deployed this principle to show the proper target for sentencing challenges involving PSIs—accuracy, notice, and an opportunity to contest—not a categorical prohibition on a court’s awareness of non-conviction history.
  • Syl. Pt. 4, in part, State v. McDonald, 250 W. Va. 532, 906 S.E.2d 185 (2023)
    McDonald clarified when a court may sentence without a PSI, reinforcing that Rule 32 ordinarily requires the court to “receive and consider” a presentence report unless specified conditions are met. This reinforced the Court’s view that the sentencing framework expects comprehensive background information to be before the judge.
  • State v. James, No. 11-1009, 2012 WL 4054127, at *3 (W. Va. Sept. 7, 2012) (memorandum decision)
    The Court used James as a close analogue for the petitioner’s “impermissible factor” argument. In James, the appellant similarly failed to cite authority making reliance on pending out-of-state charges impermissible at sentencing. Here, the Court echoed that reasoning: absent supporting West Virginia law, the petitioner could not convert dismissed charges into a Goodnight-type bar.

Legal Reasoning

  1. Deference controls unless a legal boundary is crossed.
    The Court began from Lucas, Sugg, and Goodnight: within-range sentences are largely insulated from appellate revision unless grounded in an impermissible factor or other statutory/constitutional violation. This sets a high bar for reversal.
  2. Rule 32 contemplates broad “history and characteristics,” including court record.
    Rule 32(b)(4)(A) requires a PSI to include the defendant’s “court and criminal record” and other characteristics relevant to sentencing. The opinion treated the court-history portion of the PSI as procedurally proper and expected, not suspect.
  3. Accuracy and an opportunity to object are the due process touchstones.
    Citing Fox v. State (through State v. Beck), the Court emphasized that due process at sentencing centers on accurate information. The petitioner did not object to the accuracy of the PSI’s court history; his only noted exception at the hearing concerned a statement about how long he had been selling heroin/fentanyl. That posture undercut a due process challenge premised on misinformation.
  4. The record did not show the judge treated dismissed charges as proof of guilt or as sentencing “grounds.”
    Although the circuit court recited numerous prior arrests/charges that ended in dismissal and commented critically about dismissals generally, the Supreme Court concluded the record did not demonstrate that the circuit court imposed a harsher sentence because of those dismissals or that it presumed guilt. The Court distinguished between (a) referencing background information contained in a PSI and (b) actually relying on dismissed conduct as if it were adjudicated criminal behavior.
  5. No supporting authority for a categorical “dismissed charges are impermissible” rule.
    The Court’s final move was doctrinal: even if reliance had occurred, the petitioner cited no statute or West Virginia precedent that classifies prior arrests/dismissals as an “impermissible factor” under Goodnight. The Court thus left intact the traditional, narrow view of what qualifies as impermissible.

Impact

Although issued as a memorandum decision under W. Va. R. App. P. 21, the opinion meaningfully signals how the Court will approach similar challenges:

  • Sentencing appeals must show “reliance,” not mere “reference.” Defendants contesting the inclusion or mention of dismissed charges face an evidentiary burden: they must point to something in the record showing the sentencing court actually used dismissed matters as aggravating facts (or otherwise treated them as proof of guilt), rather than simply acknowledging the defendant’s court history.
  • Rule 32 PSIs will continue to include broad court-history data. The opinion reinforces that PSIs properly contain “court and criminal record” information, and that the presence of dismissed matters in that history is not, by itself, improper.
  • The “impermissible factor” category remains narrow. By relying on Goodnight and the list in State v. Moles, the Court declined to expand “impermissible factors” to include dismissed charges absent a developed legal basis.
  • Practice consequence: object early, object precisely. Because the due process protection is framed around accuracy (Fox/Beck), defendants seeking relief should make specific objections to PSI content, request factual findings/clarifications at sentencing, and create a record demonstrating prejudice or reliance if they intend to challenge sentencing on appeal.

Complex Concepts Simplified

  • Presentence Investigation Report (PSI): A report prepared for the sentencing judge that compiles background information (including court history) to help determine an appropriate sentence and correctional plan.
  • “Impermissible factor” (sentencing): A consideration the law forbids a judge from using to decide a sentence—classically, traits like race or religion, or other bases that violate constitutional or statutory commands.
  • Presumption of innocence at sentencing: The presumption applies to determining guilt. After a guilty plea/conviction, sentencing may consider a defendant’s history and characteristics. The legal concern is not whether the judge knows about arrests/dismissals, but whether the judge treats unproven accusations as established facts without due process safeguards.
  • Abuse of discretion (sentencing review): A highly deferential appellate standard; the appellate court will not substitute its judgment for the trial court’s unless a clear legal error or impermissible basis is shown.
  • Within statutory limits: If a sentence falls inside the minimum/maximum range set by the legislature—here, one to fifteen years under W. Va. Code § 60A-4-401(a)(i)—appellate courts rarely intervene absent a distinct legal violation.

Conclusion

State of West Virginia v. Anthony Hairston reinforces a practical rule of West Virginia sentencing review: when a sentence falls within statutory limits, an appellant must do more than show that dismissed charges were mentioned or listed in a mandatory PSI. To obtain appellate relief, the record must demonstrate that the sentencing court relied on an impermissible factor or violated a constitutional/statutory command—most notably, due process protections requiring sentencing to be based on accurate information. In the absence of disputed PSI accuracy, proof of reliance, or supporting authority that dismissed charges are categorically impermissible, the Court will affirm.