dissenting.
I.
My first vote is that the Court not make its decision in this case until it has received the benefit of oral argument.
II.
The defendant makes no challenge to the verdict of the jury — nor to the judgment of conviction entered upon the verdict. The sole issue on appeal is the harshness of the sentence, plus the assertion that the harsh*708ness is partly attributable to hearsay evidence submitted to the court, and forthrightly mentioned in the opinion of the Court. The majority sees no problem because so it is said, “The legislature has specifically authorized admission of hearsay evidence for sentencing purposes ...,” so long as such hearsay is encompassed “in the form of a pre-sentence report.” I.C. § 20-220. This is strange language coming from the same majority of the Court which has recently declared that this Court will shortly be the promulgator of all rules of evidence. Moreover, my reading of § 20-220 shows no mention of hearsay. What is true is that the Court’s opinions have authorized hearsay, even in the field of capital sentencing, a due process flaw which has been lamented by both Justice Huntley and myself. As I pointed out some years ago, when the earlier opinions of this Court authorized the reception of hearsay, it was solely for the benefit of those defendants who were seeking probation. But times and the changing of the Court’s membership have changed all that. Nowadays, pre-sentence reports abound with hearsay; and, such hearsay is used to the detriment of the defendant, even where the defendant does not seek probation. Here the pre-sentence investigator, with the signed approval of a district manager wrote a letter to the district judge, telling the judge what he, the pre-sentence investigator, had heard from a Sharon Ryen, the contents of that letter being appended. A day later, the pre-sentence investigator sent another letter to the judge, also appended. Those who read the letters will feel some concern as to the pre-sentence investigator’s apparent advocacy and non-impartiality.
With all due respect to my brethren’s point of view and philosophy, I am unable to see the use of such hearsay as not violative of due process of law. That is a general statement. In this particular case, the court’s sentencing hearing took place on the 15th — allowing defense counsel one day to attempt any meaningful refutation of inferred guilt of other crimes and misconduct by hearsay accusation. The presentence investigator’s informant, Sharon Ryen, may not have been known to the district judge. But the judge did remark: “I also happen to know the Ryens a little bit, I went to school with Kenny Ryen and I don’t think that they lie.”
Defense counsel, who well represented a defendant who undoubtedly was far from being a model 18-year-old, rather eloquently says of the foregoing in his brief:
As to the letter allegedly admitting some crimes by David Mason, the judge took this letter as the truth, even though David denied the truth of the letter.
From all the facts and statements made by Judge Haman on the record at sentencing, it is apparent that before the two (2) supplemental reports were added to the Pre-Sentence Investigation that David was heading for Cottonwood on a retained jurisdiction. But, because the Judge believed both the hearsay letter and the neighbor’s statements, David Mason was highly prejudiced.
Although it is apparent that the criminal sentencing process is a difficult one, the fact is, totally unsupported hearsay at the sentencing caused David Mason’s sentence to be considerably lengthened. It is even more unfair that the Judge believed the neighbor’s story mainly on the basis that he himself knew these people. Would he have believed the story if he did not know the Ryens? Appellant’s Brief, pp. 10-11.
Defense counsel in this case, and others similarly serving defendants, cannot help but be demoralized at the message the Court this day sends out.
III.
Admittedly, my review of the record does not convince me that the sentence was unduly harsh, although, as I have said on earlier occasions, two years in the main yard might as well have served the purposes of society and an 18-year-old defendant who had no prior felony convictions. As is evident, my concern here is primarily *709with the prolific use of hearsay, which hearsay was obviously bolstered by the district judge’s belief that the informant was of a family which did not lie.
APPENDIX
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