State ex rel. Aaron v. King
| Decision Date | 11 April 1997 |
| Docket Number | No. 23932,23932 |
| Citation | 485 S.E.2d 702,199 W.Va. 533 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Glen AARON, Kimberly Brogan, Brian Russell Clark, Brent McCrea, Roy Deangelo Sharpless and Robert Lee Williams, Relators, v. Honorable Charles E. KING, Judge of the Circuit Court of Kanawha County, and John J. Myatt, Chief Probation Officer for the Thirteenth Judicial Circuit, Respondents. |
2. West Virginia Rule of Criminal Procedure 32 requires that a criminal defendant and his or her counsel be provided with a copy of the presentence investigation report prepared in accordance with subsection (b) of the rule. To the extent that Syllabus point 1 of State v. Byrd, 163 W.Va. 248, 256 S.E.2d 323 (1979), states otherwise, our prior holding is hereby modified.
3. A circuit court must, without exception, determine on the record that a defendant has had the opportunity to read and discuss the presentence investigation report with his counsel, and the record should demonstrate that such opportunity has been provided or extended to a defendant.
4. West Virginia Rule of Criminal Procedure 32(b)(5), is mandatory in its requirement that the following information be excluded from presentence investigation reports:
(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.
Such information should be provided to the Court, but not the defendant or his counsel, unless such information will be relied on in determining sentence, in which case it must be summarized by the court, in writing, and provided to the defendant or his counsel.
George Castelle, LaDonna Saria, Office of the Public Defender, Charleston, for Relators.
Charles E. King, Judge of the Circuit Court of Kanawha County, John J. Myatt, Chief Probation Officer for the Thirteenth Judicial Circuit, Respondents, No appearance.
The relators in this original proceeding in mandamus petition this Court for a writ of mandamus to compel the respondents, the Honorable Charles King, Chief Circuit Judge, Thirteenth Judicial Circuit, and John J. Myatt, Chief Probation Officer, Thirteenth Judicial Circuit, to provide the petitioners and their counsel with copies of their respective presentence reports as required by Rule 32 of the West Virginia Rules of Criminal Procedure. We find that West Virginia circuit court judges and probation officers are required, under Rule 32, to assure that defendants and their counsel are provided with copies of the presentence investigation report prepared pursuant to subsection (b) of the Rule.
The petitioners, Glen Aaron, Kimberly Brogan, Brian Clark, Brent McCrea, Roy Sharpless, and Robert Williams [hereinafter collectively referred to as the defendants], who are representative clients of the Kanawha County Public Defender Office, complain that the Kanawha County Probation Department, under the supervision and direction of the Chief Judge of the Thirteenth Judicial Circuit of West Virginia, has refused to provide the defendants and their counsel with copies of their respective presentence investigation reports as required by Rule 32 of the West Virginia Rules of Criminal Procedure. The defendants assert that they have repeatedly attempted, through administrative channels and by motion in their individual cases, to secure compliance with the requirements of Rule 32 to no avail. Consequently, the defendants petitioned this Court for a writ of mandamus. On January 8, 1997, we issued a rule to show cause. We now grant the writ.
We first review the standards for issuing a writ of mandamus. "Since mandamus is an 'extraordinary' remedy, it should be invoked sparingly." State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 303, 460 S.E.2d 436, 438 (1995) (footnote omitted). See also State ex rel. Frazier v. Meadows, 193 W.Va. 20, 31, 454 S.E.2d 65, 76 (1994) (). Billings at 303, 460 S.E.2d at 438.
We have set forth three criteria that must be met before the issuance of a writ of mandamus is deemed proper:
A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Syl. pt. 5, State ex rel. Frazier v. Meadows, 193 W.Va. 20, 454 S.E.2d 65 (1994). We have further explained that "[o]nce these prerequisites are met, this Court's decision whether to issue the writ is largely one of discretion." Billings at 304, 460 S.E.2d at 439 (footnote omitted). With these standards in mind, we proceed to a consideration of the issue raised by the defendants.
The issue presented in this original proceeding is whether probation officers, under the supervision of circuit court judges, are required under Rule 32 of the West Virginia Rules of Criminal Procedure to provide defendants and their counsel with copies of the presentence investigation report prepared pursuant to subsection (b)(6) of Rule 32. The relevant portion of Rule 32(b)(6) states:
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.
W. Va. R.Crim. P. 32(b)(6) (as amended, effective January 1, 1996).
The defendants argue that Rule 32 creates a mandatory duty to provide a copy of the presentence investigation report to its subject criminal defendant and his or her counsel. 1 The defendants contend that the respondents' repeated refusal to comply with the disclosure provisions of Rule 32 have caused a continuing impediment to meaningful review of presentence reports by defendants awaiting sentencing. Consequently, such defendants have been denied the opportunity to correct any errors that might be discovered through meaningful review. The defendants maintain further that these problems are exacerbated when a defendant is in jail and is, therefore, unable to review his or her presentence report prior to the beginning of the sentencing hearing. We agree that Rule 32 mandates that criminal defendants be provided with a copy of the presentence investigation report prepared in anticipation of their sentencing.
There is no West Virginia case law interpreting Rule 32 in its current form. However, our rule is substantially similar to Rule 32 of the Federal Rules of Criminal Procedure. 2
[199 W.Va. 537] Consequently, we find the advisory notes accompanying Federal Rule 32 are useful in interpreting our rule. See, e.g., State ex rel. Paige v. Canady, 197 W.Va. 154, 160, 475 S.E.2d 154, 160 (1996) ("Because the language contained inRule 26(c) of the West Virginia Rules of Civil Procedure is nearly identical to Rule 26(c) as contained in the Federal Rules of Civil Procedure, we look to federal case law for guidance."). 3 In our view, the advisory notes relating to revisions made to earlier versions of Federal Rule 32, which ultimately led to the rule as presently stated, are particularly useful in determining the intent behind the language contained in the current rule
Prior to 1989, the federal provisions regarding disclosure of the presentence investigation report, found in subsection (c)(3) of Federal Rule 32, provided that a defendant and his or her counsel would be permitted only to read the report, with certain restrictions upon the information contained therein, at a reasonable time before imposing sentence. Fed.R.Crim.P. 32(c)(3)(A) (as amended, effective August 1, 1987). The rule stated further that any copies of the report made available to the defendant and his or her counsel must be returned to the probation officer immediately following the sentencing proceeding, unless the court directed otherwise. Fed.R.Crim.P. 32(c)(3)(E) (as amended, effective August 1, 1987).
The provisions of Federal Rule 32(c) relating to disclosure of the presentence investigation report were amended in 1989 to state, in part:
(3) Disclosure.--
(A) At least 10 days before imposing sentence, unless this minimum period is waived by the defendant...
To continue reading
Request your trial
-
Evans v. Mutual Min.
... ... denied, 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985), state: ... The imposition of sanctions by a circuit court under ... ...
-
State v. Keefer
... ... See, e.g. , State ex rel. Erlewine v. Thompson , 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973) ("A court of record speaks ... Va. 248, 253, 256 S.E.2d 323, 325 (1979), holding modified by State ex rel. Aaron v. King , 199 W. Va. 533, 485 S.E.2d 702 (1997) ("The subject matter of the rule not rising to a ... ...
-
State v. Hall
... ... circuit court complied with a Rule of Criminal Procedure ... See State ex rel. Aaron v. King , 199 W.Va. 533, ... 539-40, 485 S.E.2d 702, 708-09 (1997); Syl. pt. 3, ... ...
-
State ex rel. Davis v. Vieweg
... ... See Syl. pt. 1, State ex rel. Aaron v. King, 199 W.Va. 533, 485 S.E.2d 702 (1997). "Once these prerequisites are met, this Court's decision whether to issue the writ is largely one of ... ...