(a)In general; time for sentencing. – When a presentence investigation and report are made under subdivision (b)(1), sentence should be imposed without unnecessary delay following completion of the process prescribed by subdivision (b)(6). When a presentence investigation and report are not made, sentence shall be imposed without unreasonable delay. (b)Presentence investigation and report. –
(1)When made. – The probation officer shall make a presentence investigation and submit a report to the court before the sentence is imposed, unless:
(A) the defendant waives a presentence investigation and report; (B) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority; and (C) the court explains on the record its finding that the information in the record enables it to meaningfully exercise its sentencing authority. (2)Presence of counsel. – Upon good cause shown, the court may afford the defendant’s counsel the right to notice and a reasonable opportunity to attend any interview of the defendant by a probation officer during the course of the presentence investigation. (3)Nondisclosure. – The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty. (4)Contents of the presentence report. – The presentence report must contain:
(A) information about the defendant’s history and characteristics, including information concerning the defendant’s court and criminal record, occupation, family background, education, habits and associations, mental and physical condition, the names, relationships, ages and condition of those dependent upon the defendant for support and any circumstances that, because they affect the defendant’s behavior, may be helpful in imposing sentence, determining the propriety and conditions of release on probation, or determining correctional treatment; (B) a victim impact statement, pursuant to Chapter 61, Article 11A, Section 3 of the West Virginia Code of 1931, as amended, unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor, caused physical, psychological or economic injury or death of the victim; and (C) any other information required by the court. (5)Exclusions. – The presentence report must exclude:
(A) any diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation; (B) sources of information obtained upon a promise of confidentiality; or (C) any other information that, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. (6)Disclosure and objections. –
(A) Within a period prior to the sentencing hearing, to be prescribed by the court, the probation officer must furnish the presentence report to the defendant, the defendant’s counsel, and the attorney for the state. The court may, by local rule or in individual cases, direct that the probation office not disclose the probation officer’s recommendation, if any, on the sentence. (B) Within a period prior to the sentencing hearing, to be prescribed by the court, the parties shall file with the court any objections to any material information contained in or omitted from the presentence report. (C) Except for any unresolved objection under subdivision (b)(6)(B), the court may, at the hearing, accept the presentence report as its findings of fact. For good cause shown, the court may allow a new objection to be raised at any time before imposing sentence. (c)Sentence. –
(1)Sentencing hearing. – At the sentencing hearing, the court must afford counsel for the defendant and for the state an opportunity to comment on the probation officer’s determinations and other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. The court may, in its discretion, permit the parties to introduce testimony or other evidence on the objections. For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not effect, sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Board of Parole. (2)Production of statements at sentencing hearing. – Rule 26.2(a)-(d) and (f) applies at a sentencing hearing under this rule. If a party elects not to comply with an order under Rule 26.2(a) to deliver a statement to the movant, the court may not consider the affidavit or testimony of the witness whose statement is withheld. (3)Imposition of aentence. – Before imposing sentence, the court must:
(A) verify that the defendant and defendant’s counsel have read and discussed the presentence report made available under subdivision (b)(6)(A). If the court has received information excluded from the presentence report under subdivision (b)(5) the court in lieu of making that information available must summarize it in writing, if the information will be relied on in determining sentence. The court must also give the defendant and the defendant’s counsel a reasonable opportunity to comment on that information; (B) afford defendant’s counsel an opportunity to speak on behalf of the defendant; (C) address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of sentence; (D) afford the attorney for the state an opportunity equivalent to that of the defendant’s counsel to speak to the court; and (E) if sentence is to be imposed for a crime of violence or sexual abuse, address the victim personally if the victim is present at the sentencing hearing and determine if the victim wishes to make a statement or present any information in relation to the sentence. (4)In camera proceedings. – The court’s summary of information under subdivision (c)(3)(A) may be in camera. Upon joint motion by the defendant and by the attorney for the state, the court may hear in camera the statements made under subdivision (c)(3)(B), (C), (D), and (E) by the defendant, the defendant’s counsel, the victim, or the attorney for the state. (5)Notification of right to appeal. – After imposing sentence in a case which has gone to trial on a plea of not guilty, the court must advise the defendant of the right to appeal. After imposing sentence in any case, the court must advise the defendant of any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of intent to appeal on behalf of the defendant. (d)Judgment. –
(1)In general. – A judgment of conviction must set forth the plea, the verdict or findings, the adjudication, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment must be entered accordingly. The judgment must be signed by the judge and entered by the clerk. (2)Criminal forfeiture. – When a verdict contains a finding of criminal forfeiture, the judgment must authorize the attorney for the state to seize the interest or property subject to forfeiture on terms that the court considers proper. (e) Plea withdrawal. – If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea if the defendant shows any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by petition under W. Va. Code ยง 53-4A-1. (f)Definitions. – For purposes of this rule
(1) “victim” means any individual against whom an offense has been committed for which a sentence is to be imposed, but the right of allocution under subdivision (c)(3)(E) may be exercised instead by
(A) a parent or legal guardian if the victim is below the age of eighteen years or incompetent; or (B) one or more family members or relatives designated by the court if the victim is deceased or incapacitated; and (2) “crime of violence or sexual abuse” means a crime that involved the use or attempted or threatened use of physical force against the person or property of another, or a crime under Chapter 61, Article 8B, Sections 7, 8, and 9; Chapter 61, Article 8, Section 12; and Chapter 61, Article 8D, Section 5 of the West Virginia Code of 1931, as amended. (g)Probation. – After conviction of an offense not punishable by life imprisonment, the defendant may be placed on probation if permitted by law. (h)Revocation of probation. – The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing.
W.Va. R. Crim. P. 32
Effective October 1, 1981; amended effective February 1, 1985;January 1, 1996.
