specially concurring.
Because I would hold that ORS 137.090 permits witnesses to present hearsay testimony at sentencing hearings concerning circumstances which justify aggravation or mitigation of punishment but that the admission of the particular hearsay testimony here involved violated defendant’s confrontation rights under Article I, section 11, of the Oregon Constitution, I specially concur.1
The majority holds “that ORS 137.090 requires that [the hearsay rules,] OEC 801 to OEC 806[,] apply to testimony of witnesses in a sentencing hearing about circumstances [concerning] aggravation of punishment * * 84 Or App at 732-33. (Emphasis supplied.) The majority has misinterpreted ORS 137.090 in holding that it bars all hearsay testimony in sentencing proceedings.
ORS 137.090 requires that the state “present [evidence of aggravating circumstances] by witnesses in open court.” State v. Collins, 43 Or App 265, 268, 602 P2d 1081 (1979); see State v. Brown, 44 Or App 597, 600-602, 606 P2d 678 (1980). It did so here by producing the victim as a witness. Neither Oregon appellate court has decided whether those witnesses’ testimony is subject to the rules of evidence. OEC 101(4) (d) provides that the Evidence Code, including the rules covering hearsay (OEC 801 to OEC 806), does not apply to sentencing, *734“except as required by ORS 137.090.” The legislative commentary to OEC 101 (1) (4) (d) states that the rule “exempts sentencing from the rules of evidence and directs attention instead to the statute that specifically governs sentencing. ORS 137.090.” Commentary to Oregon Evidence Code 4 (Butterworth 1982) (Commentary).
ORS 137.090 provides:
“The circumstances which are alleged to justify aggravation or mitigation of the punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, the deposition of the witness may be taken out of court at such time and place, and upon such notice to the adverse party, and before such person authorized to take depositions, as the court directs. The court may consider the report of presentence investigation conducted by probation officers pursuant to ORS 137.530 or any other person designated by the court.”2
The majority states:
“[T]he exception clause [in OEC 101(4)(d)] has meaning only if ORS 137.090 requires that at least some portions of rules 100 to 412 and 601 to 1008 apply to sentencing. The second sentence of ORS 137.090 provides that the court may consider presentence reports, which commonly include hearsay evidence; it does not, therefore, require that the hearsay rules (OEC 801 to OEC 806) apply to sentencing. Accordingly, the exception clause must refer to the first sentence of ORS 137.090, which covers ‘the testimony of witnesses.’ OEC 801 to OEC 806 are clearly pertinent to the presentation of testimony. Furthermore, contrary to the second sentence [of ORS 137.090], the first sentence neither expressly nor impliedly states that the court may consider hearsay testimony.” 84 Or App at 732. (Emphasis in original.)
The majority misreads the import of that exception clause. It should not be interpreted to mean that some of the rules necessarily apply in sentencing. Rather, as the legislative commentary indicates, the intent was that ORS 137.090 determines whether any of those rules are to apply to sentencing. To hold that none of the enumerated rules applies would not, therefore, render the exception clause meaningless, as the *735majority contends. It follows that, to determine whether a witness in a hearing to present aggravating or mitigating circumstances may properly give hearsay testimony, we must look to ORS 137.090. Nothing in that statute, either expressly or impliedly, reveals a legislative intent that witnesses who testify to “circumstances alleged to justify aggravation or mitigation of the punishment” are prohibited from giving hearsay testimony. In construing a statute, we are not free “to insert what has been omitted or omit what has been inserted.” ORS 174.010; Raudebaugh v. Action Pest Control, Inc., 59 Or App 166, 172, 650 P2d 1006 (1982). We therefore may not infer, as the majority does, that hearsay testimony is prohibited because the first sentence of ORS 137.090 fails to state that the court may consider hearsay testimony. The majority cites no authority that that was the legislature’s intent but simply inserts what it deems to have been omitted.
However, defendant also argues that use of the victim’s hearsay testimony at sentencing that implicated him in uncharged and untried criminal activity violated his confrontation rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment and his due process rights under the Fifth and Fourteenth Amendments.3
Article I, section 11, provides that “[i]n all criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to face * * *.” The Oregon Supreme Court has stated, in reference to Article I, section 11, that “[t]he term ‘criminal prosecution’ includes sentencing, a stage at which a judicial decision affecting a defendant’s future liberty is made.” State ex rel Russell v. Jones, 293 Or 312, 315, 647 P2d 904 (1982). The Confrontation Clause thus applies to sentencing, and we would have to determine the scope of the confrontation right as it relates to hearsay testimony presented at sentencing hearings that implicates a defendant in serious criminal activity for which he has never been arrested, charged or tried.
Although the wording of the Confrontation Clauses *736in the Oregon and federal constitutions differ,4 the Oregon Supreme Court has adopted the reasoning of the United States Supreme Court in analyzing confrontation issues. State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985). The United States Supreme Court has not decided the precise issue presented in this case. However, in Williams v. New York, 337 US 241, 69 S Ct 1079, 93 L Ed 1337 (1949), the Court considered a related issue. A convicted defendant argued that his due process and confrontation rights under the federal constitution were violated because the sentencing judge considered information that was obtained outside the courtroom from persons whom the defendant had not been permitted to confront or cross-examine.
The Court held that the federal constitution does not require that information relied on in sentencing must be “restricted to that given in open court by witnesses subject to cross-examination.” 337 US at 250. The Court observed that there is a historical basis for different evidentiary rules governing sentencing procedures and trials. Courts in England and this country have long practiced the policy of allowing sentencing judges wide discretion in the sources and types of evidence used to determine the sentence to be imposed. The Court also noted some sound practical reasons for the distinction between sentencing and trial. The sentencing judge is not confined to the narrow issue of guilt, as is the trier of fact. Instead, the task is to select the appropriate sentence after considering
“the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to trial.” 337 US at 247.
Oregon law is similar to that relied on in Williams v. *737New York, supra. Article I, section 15, of the Oregon Constitution requires that sentencing “be founded on the principles of reformation, and not of vindictive justice,” and, to that end, “[t]he sentencing court must be provided with a great variety of information in order that it can perform its most burdensome function.” State v. Scott, 237 Or 390, 399, 390 P2d 328 (1964). Although it is essential that the material portions of that “great variety of information” be accurate, the Oregon Supreme Court has stated that “the right of confrontation and cross-examination is not vital to the receipt of all information which bears upon the sentencing process.” Buchea v. Sullivan, 262 Or 222, 235, 497 P2d 1169 (1972). In that vein, State v. Scott, supra, held that a sentencing judge may properly consider a list of arrests, as distinguished from convictions, that are included in a presentence report. 237 Or at 399-400. See also State v. Woolery, 16 Or App 180, 188, 517 P2d 1212, rev den (1974).
Although, as noted, the United States Supreme Court has not decided whether hearsay testimony that implicates a convicted defendant in criminal conduct for which he has never been arrested, charged or tried may be admitted at sentencing in view of the Confrontation Clause, the Ninth Circuit, in United States v. Weston, 448 F2d 626 (9th Cir 1971), cert den 404 US 1061 (1972), decided an almost identical issue. In that case, the defendant was convicted of receiving, concealing and facilitating the transportation of heroin, in violation of 21 USC § 174. The trial court imposed a harsher sentence on the defendant based on unreliable hearsay information contained in the presentence report that implicated the defendant in serious criminal activity for which she had never been arrested, charged or tried (specifically, that she was chief supplier of heroin to western Washington State). Expressly citing with approval the holding in Williams v. New York, supra, the court stated in Weston:
“[W]e believe that other criminal conduct may properly be considered [at sentencing] even though the defendant was never charged with it or convicted of it. Its relevance to the problem before the judge, ‘what sort of person is this defendant, and what sort of sentence should she receive?’ is apparent. But that does not solve our present problem. Here the other criminal conduct charged was very serious, and the factual basis for believing the charge was almost nil. * * *
*738<<* * * * *
“This will not do. It is tantamount to saying that once a defendant has been convicted of offense A, [other persons] can say to the judge, ‘We think that she is guilty of much more serious offense B, although all we have to go on is [a hearsay declarant’s] report,’ and the judge can then say to the defendant, ‘You say, it isn’t so; prove that to me!’ In addition to the difficulty of ‘proving a negative,’ we think it a great miscarriage of justice to expect [the defendant] or her attorney to assume the burden and expense of proving to the court that she is not the large scale [heroin] dealer that the [hearsay declarant] says that she is.
“[W]e * * * hold[] that a sentence cannot be predicated on information of so little value as that here involved. A rational penal-system must have some concern for the probable accuracy of the informational inputs in the sentencing process.” 448 F2d at 634.
The defendant’s sentence was vacated, and the case remanded for resentencing.
In this case, the victim testified at sentencing, over defendant’s objection, that defendant’s daughter had told her that defendant had “done the same things to her that he did to me, only worse.” That is hearsay testimony that, as in Weston, implicates defendant in serious criminal activity for which he has never been arrested, charged or tried. The state presented no evidence which would indicate that that testimony was supported by a minimum factual basis. The record reveals that the sentencing judge may have considered that testimony in sentencing defendant.5 For those reasons, and for the reasons stated in Weston, I would hold that the sentencing court violated defendant’s confrontation rights under the Oregon and federal constitutions when it admitted the victim’s unreliable *739hearsay testimony that implicated him in serious criminal conduct for which he had never been arrested, charged or tried. I would therefore vacate the sentence and remand for resentencing. I would not hold, however, that no hearsay testimony may be received in sentencing proceeings.
I specially concur.
Buttler, Warren and Rossman, JJ., join in this special concurrence.I agree with the majority that defendant’s first two assignments of error have no merit.
In sentencing, a court may consider other written hearsay besides the presentence report. ORS 137.079.
Defendant’s objection to the hearsay testimony at sentencing did not raise the constitutional issues. However, there were extensive arguments concerning the objection, and the record is sufficient for our review of the constitutional arguments made on appeal. Furthermore, the state does not contend that we should not consider those arguments. For those reasons, I would address the constitutional issues raised.
The Sixth Amendment provides, in pertinent part:
“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.”
Article I, section 11, of the Oregon Constitution provides, in pertinent part:
“In all criminal prosecutions, the accused shall have the right * * * to meet witnesses face to face.”
At sentencing, the court stated:
“I don’t place, for sentencing purposes, undue stock on the allegations of the other victim. My clear preference is that if someone has been damaged, they should have the courage to step forward and say so. I respect greatly the victim here that’s done that, but if the other alleged victim has not done that, then I’m not going to consider that with any great credibility at all.”
Had the court indicated that it completely disregarded the victim’s hearsay testimony here at issue, the error in admitting it would have been harmless. See Chapman v. California, 386 US 18, 23-24, 87 S Ct 824, 17 L Ed 2d 705 (1967); State v. Van Hooser, 266 Or 19, 25-26, 511 P2d 386 (1973).