(concurring in part, dissenting in part).
I join that part of the decision affirming the conviction for manslaughter and aggravated assault.
I dissent to the treatment of the sentencing procedure and would reverse and remand on the resentencing.
Immediately prior to sentencing, an altercation took place between law enforcement and the defendant. Thereafter, the trial court had ex parte communication with law enforcement concerning this altercation. Defense counsel was in the court room and should have been summoned. Furthermore, there were incident reports submitted to the trial judge concerning Arguello’s conduct in jail. These incident reports were not made available to counsel prior to sentencing to ameliorate or rebut same. It appears that from the statements of the trial judge, at sentencing, that matters concerning the altercation and the incident reports were used as a basis for the sentence. Of particular concern, State called one Richard Mareska as a witness. Mareska was an alleged victim of an assault by Arguello in the jail during the time that Arguello was awaiting trial on the homicide charge. Arguello’s counsel promptly objected to this testimony for the reason that Arguello was awaiting trial on the alleged aggravated assault and was represented by another attorney on the aggravated assault charge. Defense counsel at the sentencing procedure believed that he could not put Arguello on the stand to rebut the testimony of Mareska. This appears to me to be true for, inter alia, he was not representing Arguello in that case. To place him on the stand could have forced Arguello to incriminate himself.
Defense counsel preserved the record objecting, in essence, to this criminal sentencing procedure for the reason that it was not conducted in a legal, impartial, and unprejudicial atmosphere.
Defense counsel vigorously asserts that Arguello was assaulted while handcuffed enroute to the sentencing hearing. Counsel tried to obtain a continuance, which was *558denied, to dull the immediacy of the events which had transpired. Defense counsel also maintained, and still does, that the ex parte conversation with law enforcement immediately prior to sentencing was improper.
Arguello now maintains that the ex parte evidence and the highly emotional events prior to the sentencing had an effect on his sentencing which increased his sentences on the two charges.
The procedure set forth in SDCL 23A-27-9 forbids the imposition of sentence in this fashion. Arguello should have been given an opportunity to be heard and defend and rebut as to both the reports and the ex parte conversation with the trial judge. All matters relied upon by the trial court in the sentencing process, should have been heard in an atmosphere to determine the truthfulness of the reports and the ex parte conversation. It appears to me that State v. Grosh, 387 N.W.2d 503 (S.D.1986) supports my conclusion as does State v. Brech, 84 S.D. 177, 169 N.W.2d 242 (1969). I also rely upon two federal decisions: U.S. v. O’Neill, 767 F.2d 780, 787 (11th Cir.1985) and U.S. v. Williams, 668 F.2d 1064, 1072 (9th Cir.1981).
A trial should be conducted in an impartial setting. So should the sentencing aspect. State v. Weatherford, 416 N.W.2d 47 (S.D.1987). Arguello, at the sentencing procedure, was denied a meaningful opportunity to be heard. In conclusion, this sentence should be set aside and he should be given an opportunity to rebut the aforesaid evidence, so as to mitigate and defend upon its impact.