¶ 45. (dissenting). From time to time, this court needs to step back from the narrow disputes in a particular case to seek a broader perspective on the workings of our criminal justice *474system. The court did this recently in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, in which it underscored the vital need for sound discretion in sentencing in the wake of truth-in-sentencing legislation.
¶ 46. Truth-in-sentencing imposes new responsibilities on a circuit court. As a general rule, whenever a court sentences a person to imprisonment in a Wisconsin state prison, the court must impose a bifurcated sentence consisting of a fixed term of confinement followed by a fixed term of extended supervision. With few exceptions, these terms, once set, will not be altered. A person serving a bifurcated sentence is not eligible for parole. This means that the traditional safety valve for a functionally excessive sentence has been removed.
¶ 47. Thus, truth-in-sentencing creates added pressure for the court to produce a sentence that is reasonable, just, and rationally explained. Such a sentence requires the court to have the best information available, delivered in a timely manner. As we observed in Gallion,
Because we recognize the difficulty in providing a reasoned explanation [for a sentence] in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels' recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning.
Id., ¶ 47.
*475¶ 48. There are portions of the lead opinion in this case that mesh perfectly with the concerns we expressed in Gallion.1 See Lead op., ¶¶ 8, 9. For instance, the lead opinion recognizes that the court must possess the "fullest information possible concerning . the defendant's life and characteristics" to facilitate the selection of an appropriate sentence. Lead op., ¶ 8 (quoting State v. Knapp, 111 Wis. 2d 380, 385, 330 N.W.2d 242 (Ct. App. 1983) 2 But the lead opinion's ultimate conclusion is inconsistent with this sound policy, and that is the reason I respectfully dissent.
HH
¶ 49. Truth-in-sentencing is one of several evolving factors that affect contemporary sentencing. As an example, in Wisconsin and throughout the country, there is a new emphasis on victims' rights. Article I, Section 9m of the Wisconsin Constitution affords certain rights to victims of crime, including "the opportunity to make a statement to the court at disposition." This constitutional provision is amplified in Wis. Stat. § 950.04.
¶ 50. As a result, in a felony case the circuit court may receive a blizzard of information: (1) statements from the victim and/or the victim's friends and family; (2) other testimonial and documentary evidence offered *476by the state or defense; (3) a presentence investigation conducted by the Department of Corrections; (4) an oral presentation from the prosecutor; (5) argument and recommendation from defense counsel; and (6) allocution by the defendant. At the conclusion of a sometimes emotional, sometimes confrontational sentencing hearing, the court faces the challenge of weighing all relevant information and then incorporating it into a reasoned, satisfactorily explained sentence.
¶ 51. In reality, and by necessity, the court may contemplate the essence of both the sentence and its rationale before the hearing begins.3 Consequently, defense counsel would be foolish not to seek additional ways to effectively communicate the defendant's position to the court, and to communicate that position well before sentencing. A sentencing memorandum from the defendant is a logical option.
I — I HH
¶ 52. A defendant's sentencing memorandum has no set format, but it is intended to serve at least two objectives. First, it corrects any erroneous information or analysis in the court-ordered presentence investigation (PSI), when there is a PSI and when the PSI is issued first. Second, it accentuates mitigating factors about the defendant and the crime.
¶ 53. An informative article about sentencing memoranda explains that:
There is ... neither a set format. .. nor a prescribed set of arguments that the attorney can make. In some cases, the presentation in the [defendant's sentencing *477memorandum] will focus on the hardship of the defendant's life and environmental factors such as child abuse. In others, the emphasis will be on the defendant's crime-free life and his contributions to society. No matter what the arguments... the defendant's lawyer must include a section on the defendant's background and history. Most of the mitigating circumstances will appear in this section, and, when appropriate, the section should include a defendant's version of the offense. Given the importance of expressions of remorse in the sentencing process, the section also should include candid remarks on the subject of remorse, and should explain why the defendant committed the criminal act.
John L. Carroll, The Defense Lawyer's Role in the Sentencing Process: You've Got to Accentuate the Positive and Eliminate the Negative, 37 Mercer L. Rev. 981, 1000-01 (1986) (emphasis added).
¶ 54. It is hard to dispute the article's advice that a defendant who wishes to influence the court at sentencing should attempt to explain his motivation, express his remorse, and apologize to his victim.
1 — I H-t HH
¶ 55. The issue presented in this case is whether a defendant's post-conviction statements, contained in a defendant's sentencing memorandum, relating to the offense of which the defendant was convicted, may be used by the state as direct evidence against the defendant in a new trial for the same offense after the defendant successfully withdraws his plea or after the defendant's conviction of the offense is reversed.
¶ 56. To my mind, this is an issue that requires us to step back and reflect upon coherent policy in our criminal justice system.
*478¶ 57. My first premise is that a circuit court needs and benefits from useful, timely information as it prepares to sentence a criminal defendant.
¶ 58. My second premise is that a defendant's sentencing memorandum can and should provide useful, timely information to the court. Ideally, a sentencing memorandum should give the court insightful information about what makes a defendant tick, so that the court can properly calculate the defendant's prognosis for rehabilitation and need for punishment. If defense counsel waits until the sentencing hearing to present mitigating evidence, it may be too little and too late.
¶ 59. My third premise is that the majority severely disadvantages a defendant who wishes to file a sentencing memorandum with the court because it precludes the defendant from including any inculpatory statement about the offense in the memorandum without giving up use immunity for that inculpatory statement if there is a new trial. Fear of having one's own truthful words used against him is bound to chill a defendant's candor and substantially nullify the usefulness of the memorandum.
¶ 60. As I read the lead opinion, a defendant cannot repeat word-for-word to a person preparing his sentencing memorandum what he told the person preparing the PSI, without losing the protections of the PSI statement recognized in State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989). Correspondingly, a defendant cannot (1) expand his discussion of the offense; (2) personally clarify error in the PSI's description of the offense; (3) explain his motivation for the offense; or (4) personally express apology and remorse for the offense without putting himself in jeopardy. The logic of the lead opinion strips a defendant of use *479immunity even if he only quotes from his statement in the PSI because, unlike the PSI, the sentencing memorandum is not a confidential document. In short, the majority sharply curtails a defendant's right to make his own case at sentencing.
¶ 61. The State reassures us that the defendant can say everything he wants to say in the PSI and receive immunity for it. This does not explain what the defendant should do if there is no PSI,4 or if the defendant forgets something until after he sees the written PSI, or if the PSI leaves something out or gets something wrong. In State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), this court acknowledged that "some of the information in a PSI may be unverified and some of it may be inaccurate." Id. at 194. A defendant is entitled to be sentenced on the basis of true and correct information.
¶ 62. In essence, the State contends that the defendant has no right to make the case for himself at sentencing in the way he wants to make it, unless he is willing to surrender his rights against self-incrimination if there is a second prosecution.
¶ 63. The majority forces a defendant to choose between preserving the immunity for statements made in the PSI, or making the most effective case he can in his own sentencing memorandum. He cannot do both. If the defendant chooses to preserve his immunity, he must restrict the range and candor of his sentencing memorandum. This will limit the defendant's right to make his case to the court, and it may deprive the court of information. If the defendant speaks candidly about the offense in his sentencing memorandum, he must *480give up the protections afforded to his statements under Wis. Stat. § 972.15. This severely undermines the Crowell decision.
IV
¶ 64. The lead opinion dismisses two potential bases for protecting a defendant's inculpatory statements in a sentencing memorandum. First, it concludes that Wis. Stat. § 972.15, by its terms, does not cover a defendant's sentencing memorandum. Second, it concludes that there is no federal or state constitutional due process right of allocution. The first conclusion is reasonable; the second is problematic.
¶ 65. The lead opinion explains that allocution is a statutory right to speak in open court prior to sentencing, Wis. Stat. § 972.14(2), and that the exercise of that right does not require suppression of any statement made by a defendant outside the courtroom to the person who prepares a sentencing memorandum. Lead op., ¶¶ 31, 34, 35.
¶ 66. In providing this explanation, the lead opinion dodges the obvious question whether a statement made by a defendant inside the courtroom at a sentencing hearing is protected from use in a new trial. For the lead opinion to answer this question directly would be awkward. Determining that an in-court statement is protected would dilute the lead opinion's arguments against use immunity for a defendant's statements in a sentencing memorandum. Determining that an in-court statement is not protected would render the statutory right of allocution meaningless for some defendants.
¶ 67. I acknowledge that an unconditional due process right of allocution would present some disconcerting questions. For instance, does a defendant have a *481due process right of allocution in cases where the court has no discretion to deviate from a determinate sentence?5 Does a defendant have a due process right of allocution in every misdemeanor case? Does a defendant have a due process right of allocution if his counsel speaks but the defendant is never asked? Does a defendant have a due process right of allocution if his statutory right is overlooked but the defendant does not object and the court imposes a reasonable, satisfactorily explained sentence?
¶ 68. The last question is similar to the question posed in Hill v. United States, 368 U.S. 424 (1962). Hill was convicted of two felonies after a jury trial. At sentencing he was not asked whether he wished to make a statement in his own behalf. The district judge, after noting his familiarity with the defendant's character and history, imposed sentence and there was no appeal. Five years later Hill commenced litigation under 28 U.S.C. § 2255 to vacate his sentence, claiming he had been denied the right of allocution under Rule 32(a) of the Federal Rules of Criminal Procedure.6 The Court *482decided that "the failure to follow the formal requirements of Rule 32(a) is not of itself an error that can be raised by collateral attack." Hill, 368 U.S. at 426. The Court added: "It is to be noted that we are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed." Id. at 429. This caveat puts in context the Court's statement that:
The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error that is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.
Id. at 428 (emphasis added).
¶ 69. The Hill court decided that a defendant does not have an unconditional due process right of allocution. However, because the Hill case involved a collateral attack on the defendant's sentence, id. at 425, its holding is necessarily limited, and it must be cited with caution. Thus, it would be dangerous to rely on Hill for the proposition that a defendant has no due process *483right to allocution, especially when a statute grants such a right and the defendant timely seeks to assert that right.
¶ 70. In any event, this court has twice stated that due process affords a defendant the right of allocution. State v. Borrell, 167 Wis. 2d 749, 772, 482 N.W.2d 883 (1992); Bruneau v. State, 77 Wis. 2d 166, 174-75, 252 N.W.2d 347 (1977). See also State v. Perez, 170 Wis. 2d 130, 138, 487 N.W.2d 630 (Ct. App. 1992); State v. Varnell, 153 Wis. 2d 334, 340, 450 N.W.2d 524 (Ct. App. 1989) ("due process inheres in the right of allocution at sentencing"). The lead opinion asserts that this court's pronouncement of that right in 1977 was erroneous. Lead op., ¶ 31. It is bad enough to rescind a recognized constitutional right; it is quite unacceptable to rescind that right retroactively.
¶ 71. In my view, this case should be analyzed differently. Much to its credit, the State quotes from Mathews v. Eldridge, 424 U.S. 319, 333 (1976): "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner'" (emphasis added). There can be no doubt that sentencing is a critical stage in criminal cases,7 and ordinarily, the defendant has a right to be heard. This is recognized at the federal level in Rule 32 (i) (4) of the Federal Rules of Criminal Procedure and in Wis. Stat. § 972.14(2).
¶ 72. Section 972.14(2) gives the defendant two opportunities to speak in a sentencing hearing: (1) "the court shall ask the defendant why sentence should not be pronounced upon him or her;" and (2) the court shall *484"allow... defendant an opportunity to make a statement with respect to any matter relevant to the sentence." The lead opinion diminishes these opportunities by compromising the defendant's ability to tell the truth.
¶ 73. Section 972.14(2) also gives defendant's counsel the opportunity to make a statement. Sometimes defense counsel's presentation will eliminate any actual need for a defendant to speak personally. But sometimes, as Justice Frankfurter wrote in Green v. United States, 365 U.S. 301, 304 (1961): "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." In most situations, the defendant must "have the opportunity to present to the court his plea in mitigation." Id. (emphasis added).
¶ 74. The law is not static. As noted above, the victim of a crime now has a constitutional right to "the opportunity to make a statement to the court at disposition." Wis. Const, art. I, § 9m (emphasis added). Consequently, the defendant should have an equivalent right. This right may not be an unconditional right but it is most assuredly a significant right.
V
¶ 75. In lieu of any formal holding on due process, I would immunize a defendant's inculpatory statements in a sentencing memorandum from future use by the state as direct evidence against the defendant on grounds that it furthers sound policy in the administration of justice.
¶ 76. In our 1999 Watson decision, 227 Wis. 2d at 194, we stated: "The defendant is entitled to file his own presentence memorandum and to present testimony at *485the sentencing hearing." In the 1992 Perez decision, 170 Wis. 2d at 141-42, the court of appeals stated: "[T]he defendant has the opportunity to file his own presen-tence memorandum with the court which can present what the defendant believes to be true and correct information the court should rely upon in sentencing." These unremarkable passages indicate that sentencing memoranda have become a recognized part of criminal sentencing procedure. As such, judicial policy should promote their quality and facilitate their value to the court.
¶ 77. The lead opinion contends that affording protection to a defendant's inculpatory statements in a sentencing memorandum could undercut the court-ordered PSI: "[I]f a defendant's sentencing memorandum were to achieve the same status as a court-ordered PSI, a defendant may be less likely to be forthcoming with a department of corrections staff member over whom he or she has no control. This could cause the sentencing court to have more limited information available to it in the PSI." Lead op., ¶ 28.
¶ 78. This analysis does not square with the defendant's incentives at sentencing, especially when the defendant — for either strategic or cathartic reasons —opts to reveal information that would normally be harmful to him. Simply stated, when the defense strategy is candor, it would be unwise for a defendant to attempt to game the system by selectively withholding factual information from the PSI in order to control its spin in a sentencing memorandum. The court has the prerogative not only to consider a defendant's remorse but also a defendant's cooperation. Gallion, 2004 WI 42, ¶ 43, n. 11. If a defendant deliberately withholds information from the preparer of the PSI so that he can pour out inculpatory facts or admissions to the preparer of *486his own sentencing memorandum, the court is likely to sense noncooperation and conclude that the defendant's remorse is insincere. In short, a realistic defendant has a strong incentive to be as candid in the PSI as in his own sentencing memorandum.
¶ 79. The lead opinion also suggests that a sentencing memorandum is less reliable than an objectively prepared PSI because the sentencing memorandum is a tool of advocacy. This overlooks the fact that the very information the state would seek to use at a new trial is inculpatory information that tends to establish the defendant's guilt. This damaging information is, for the most part, extremely reliable, which is precisely why the state seeks to use it and why it is valuable to the court.
¶ 80. A third reason for opposing use immunity for the defendant's statements is that the state should not be deprived of reliable evidence in a new trial. The immediate answer to this is that the state either tried the defendant once before or was prepared to try him when he entered a plea ... without his post-conviction inculpatory statements in the sentencing memorandum.
¶ 81. In addition, a defendant's inculpatory statements in a plea colloquy, Wis. Stat. § 904.10, and in a PSI, § 972.15, may not be used in any future proceeding, regardless of how reliable and helpful they might be to the state. Moreover, a defendant's statements in a Goodchild8 hearing are inadmissible as direct evidence, although they may be used for impeachment. See State v. Schultz, 152 Wis. 2d 408, 426, 448 N.W.2d 424 (1989). Until advised otherwise, I believe a defendant's state*487ments in court at sentencing may not be used against him as direct evidence in a new trial — in part because a defendant may be forced to answer statements made by a victim at sentencing or to correct inaccuracies in the PSI.9 A contrary holding would trigger a defendant's rights against self-incrimination at sentencing, eliminating the presumption that a defendant should come clean about any accomplices in his crime. See State v. Kaczynski, 2002 WI App 276, 258 Wis. 2d 653, 654 N.W.2d 300. If a defendant's statements at sentencing are not to be protected in the future, the court has a duty to say so now.
¶ 82. To sum up, the circuit court had legitimate reasons for excluding the defendant's incriminating statements in the defendant's sentencing memorandum. There was existing precédent for a due process right of allocution. There was concern that permitting the statements to be used as direct evidence against the defendant would undermine the Crowell decision. The State offered no urgent need for using the evidence. The use of the evidence to impeach the defendant's testimony in a new trial is a separate question. On policy grounds, on these facts, I would affirm.
¶ 83. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
The opinion of Justice Patience D. Roggensack is a lead opinion, ¶¶ 26-35, in regard to the constitutional issue of a due process right to allocution. It is, however, the majority opinion with respect to the interpretation of Wis. Stat. § 972.15 and in reversing the determination of the circuit court.
See also State v. Carter, 208 Wis. 2d 142, 146, 560 N.W.2d 256 (1997) ("We conclude that a circuit court should have available to it all information relevant to determining the appropriate sentence.").
"[A] proper exercise of discretion contemplates that a court will give advance thought to the particular crime, the criminal and the community." State v. Varnell, 153 Wis. 2d 334, 338, 450 N.W.2d 524 (Ct. App. 1989).
The lead opinion reiterates that "a PSI is not required prior to sentencing" (citing cases). Lead op., ¶ 10.
See State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996).
At the time of the decision in Hill v. United States, 368 U.S. 424 (1962), Rule 32(a) of the Federal Rules of Criminal Procedure read, in part, as follows:
(a) Sentence.
(1) Imposition of Sentence. Sentence shall he imposed without unreasonable delay. Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
The equivalent text now appears in Rule 32(i)(4) and reads:
*482(i)(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court must:
(i) provide the defendant's attorney an opportunity to speak on defendant's behalf;
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant's attorney.
State v. Strickland, 27 Wis. 2d 623, 635, 135 N.W.2d 295 (1965), partial abrogation recognized by Ernst v. State, 43 Wis. 2d 661, 170 N.W.2d 713 (1969).
State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).
A defendant's statements to the court at a sentencing hearing following a plea are arguably protected by Wis. Stat. § 904.10 ("Evidence of statements made in court... in connection with any of the foregoing pleas ... is not admissible"). But statements made to the court at sentencing after a trial do not appear to be covered by the statute.