dissenting.
It is firmly established in criminal law that the sentencing judge may consider almost any evidence that assists him in imposing a proper sentence for the crime committed. The underlying requirement of such evidence is that it be composed of established facts and beyond the realm of speculation and question. It is generally observed that the sentencing judge should not consider evidence in the sentencing process that requires him to be a finder of fact. Stated another way, when the reliability of the evidence offered has not been established by some other factfinding body or admitted by the defendant and the sentencing judge must determine the truth of the allegations, then such evidence should not be received. Today, the majority departs from this time-honored practice by allowing evidence of misconduct to be introduced for which the defendant has not been charged or tried, to which he has not confessed, and the truth of which he categorically denies. In my view, here the admission of the evidence during the sentencing procedure was error. I, therefore, respectfully dissent.
Jerry Oscar Smith was found guilty of the first degree rape and first degree sexual offense of Minnie Burt. Testimony at Smith’s trial showed that the rape occurred on June 10, 1984, after Smith offered to drive Burt to a cab stand, but instead drove her to a secluded country road. At his sentencing hearing, a witness for the State testified that on June 9, 1984, Smith offered to drive her to a gas station, but instead drove her to a wooded area, where she eventual*177ly jumped from the ear and hid from Smith. Smith objected to this testimony and in defense took the stand and denied that the event ever occurred. He specifically denied taking the witness to a wooded area and maintained that he took her to the promised destination of a gas station. Smith was never arrested, formally charged, or, of course, convicted for any of his actions with the witness. I believe it was improper for the sentencing judge to consider this evidence.
The majority cites many Maryland cases in support of its position today. What the majority fails to point out, however, is the common denominator shared by these cases that make them inapposite. This common denominator is that in each and every case the unconvicted crime introduced by the State at the sentencing hearing was not disputed by the defendant. Consequently, the accuracy and truth of the defendant’s actions were settled and the sentencing judge was not called upon to make a finding of fact as to whether the defendant or the State’s witness was telling the truth. A review of the Maryland cases cited by the majority is illustrative.
In Purnell v. State, 241 Md. 582, 217 A.2d 298 (1966), the defendants pled guilty to breaking and entering a diner. The defendants also admitted that they attempted to break into another store on that same night, and this admission was introduced at the defendants’ sentencing hearing. On appeal, the defendants argued that the allegation of unconvicted criminal conduct should not have been considered by the judge at sentencing. This Court stated:
Of course, if a person has simply been accused of a crime, and acquitted, the accusation, alone, should not be taken into consideration in sentencing, for the acquittal presumably shows the charge not to have been well founded. But this does not mean that a convicted person’s confession of another crime cannot be so utilized.
Id. at 584-85, 217 A.2d at 300 (emphasis added). Thus, because the defendants admitted their involvement in the unconvicted crime, the sentencing judge was not called upon to resolve that issue; the evidence was settled and *178became another fact for the judge to weigh in determining sentence.
The case of Logan v. State, 289 Md. 460, 425 A.2d 632 (1981), is substantially similar. There, the defendant was convicted of daytime housebreaking and larceny. In addition, he confessed to numerous other crimes, which were later introduced at his sentencing hearing. The defendant argued on appeal that because these confessions were unconstitutionally obtained, they should not have been considered at the sentencing hearing. This Court disagreed and held that because the exclusionary rule does not apply at sentencing hearings, the evidence of the admitted criminal conduct was proper. Again, because the defendant confessed to the unconvicted crimes, the sentencing judge was not required to become a factfinder as to disputed criminal conduct.
This common denominator is also present in Henry v. State, 273 Md. 181, 328 A.2d 293 (1974). In Henry, a jury convicted the defendant of larceny and receiving stolen money and acquitted him of armed robbery, assault with the intent to murder, and murder. The judge gave the defendant the maximum penalty and in pronouncing the sentence remarked that it was clear to him that the defendant participated in, and could have prevented, the robbery and murder for which he was acquitted. On appeal, the defendant argued that the facts surrounding his acquittal should not have been considered by the sentencing judge. We noted that the trial judge did not rely on outside evidence and that “[i]n determining a proper sentence the trial judge was entitled to consider [the defendant’s ] own testimony as to the [circumstances surrounding his convictions and acquittals].” Id. at 151, 328 A.2d at 305 (emphasis added). Thus, because the sentencing judge merely considered the defendant’s own account of his conduct, the sentencing judge was not placed in the position of determining whether the defendant or anqther witness was telling the truth regarding the defendant’s actions. Consequently, the sentencing judge avoided becoming a factfinder.
*179Huffington v. State, 304 Md. 559, 500 A.2d 272 (1985), cert. denied, — U.S.-, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986), also involved settled facts. In Huffington, the defendant was convicted of murder and other lesser offenses. At his sentencing proceeding, the trial judge admitted the defendant’s institutional history pertaining to infractions. The defendant argued on appeal that the evidence should not have been admitted, but he did not deny the truth of the report. Consequently, there was no necessity to determine whether the infractions actually occurred. In addition, correctional institutions have various factfinding and due process procedures in place to determine whether an inmate did in fact commit an infraction. As such, the question of whether the defendant committed the infractions had been decided long before the sentencing hearing.
Similarly, none of the other Maryland cases cited by the majority involved disputed evidence of misconduct. Reid v. State, 302 Md. 811, 490 A.2d 1289 (1985) (facts contained in victim impact statement not disputed); Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972) (Court remanded case for resentencing and merely stated general guidelines for the trial court to follow); Farrell v. State, 213 Md. 348, 131 A.2d 863 (1957) (accuracy of medical reports of the defendant’s mental health not disputed).
It is clear, therefore, that prior Maryland cases merely permit unconvicted criminal acts to be introduced at the defendant’s sentencing hearing when the defendant’s guilt as to those charges is uncontested and thus not an issue to be resolved by the sentencing judge. This is not the case before the Court today. Here, Smith expressly denied that he ever committed any criminal act against the State’s witness.
It is a basic premise of the American criminal justice system that a defendant is innocent until proven guilty. A defendant on trial is protected by numerous conditioning devices designed to promote fairness and ensure that no innocent man goes to prison. The requirement of fairness is also present at a sentencing hearing. There, the defend*180ant’s guilt is settled and the purpose of the hearing is to gauge the severity of the crime and character of the defendant in order to mete out a punishment consistent with the interests of society and calculated to influence and reform the offender. At a sentencing hearing, the judge reviews facts. As we said in Henry v. State:
[T]he judge may not consider evidence which possesses such a low degree of reliability that it raises a substantial possibility that his judgment may be influenced by inaccurate or false information. Consideration of such information leads to unwarranted assumption of guilt. For this reason it has been recognized that when they stand alone, bald accusations of criminal conduct for which a person either has not been tried or has been tried and acquitted may not be considered by the sentencing judge. Purnell v. State, 241 Md. 582, 584, 217 A.2d 298, 299 (1966); Walker v. State, 186 Md. 440, 448, 47 A.2d 47, 48 (1946); Baker v. State, supra, 3 Md.App. [251] at 257-58, 238 A.2d [561] at 566.
Henry v. State, supra, 273 Md. at 147, 328 A.2d at 303 (quoting Henry v. State, 20 Md.App. 296, 314, 315 A.2d 797, 807 (1974)).
The majority opinion suggests that the sentencing judge did not make a finding as to whether Smith was guilty or innocent of the misconduct alleged by the witness. In my view, the sentencing judge was forced to decide whether Smith’s version or the witness’s version of the story was correct. The judge was forced to review, conflicting testimony and resolve one basic issue: Did Smith take the witness to a gas station or to a dark, wooded area? This issue does not arise out of and is unrelated to the factual scenario for which Smith was on trial. Therefore, it was wrong for the sentencing judge to become a factfinder on this issue, particularly when the defendant denied the allegations and was not protected by trial.
The facts of this case make consideration of the uncharged, contested criminal activity particularly egregious. Here, the criminal conduct alleged by the State’s witness is *181nearly identical to the conduct for which Smith was convicted. If the sentencing judge believed the witness, he could not view Smith as a one-time sexual offender, but would instead view him as a two-time sexual offender. Smith’s sentence would thus be aggravated by unproved, controverted criminal allegations.
Other states have addressed the problem before the Court today. For example, in State v. Womack, 319 N.W.2d 17 (Minn.1982), the defendant was charged with being a felon in possession of a pistol and with second degree assault. The assault charge was dismissed in exchange for a guilty plea to the possession charge. At sentencing, the judge based his heavy sentence on his belief that the defendant had committed the assault. The court noted that although the defendant admitted possession of the pistol, he at all times maintained that he was not guilty of assault because of the defense of self-defense. The court stated:
It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant pled guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred. In this case the defendant at all times has claimed that he acted in self-defense____
The state’s response is that as a matter of law defendant did not act in self-defense. However, upon analysis it becomes apparent that the state is really arguing that as' a matter of fact defendant did not act in self-defense. Given the way in which the case was presented to the trial court, the trial court was not entitled to act as factfinder and determine whether defendant was telling the truth when he claimed that the complainant attacked him with a knife. That being so, we believe that the departure, based on the sentencing court’s fact-finding, was improper.
Id. at 19-20 (emphasis in original); see also Ture v. State, 353 N.W.2d 518, 525 (Minn.1984) (“Generally, it is proper *182for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced, but generally it is not proper for the court to consider evidence which points to defendant’s guilt of some other offense____”); Newby v. State, 161 Ga.App. 805, 810, 288 S.E.2d 889, 894 (1982) (“ ‘It is entirely reasonable, proper and necessary in rational sentencing for the trial court to look to the circumstances and context in which the offense was committed, but a sentence based in part upon articulated consideration of other offenses, as yet untried, amounts to prescribing punishment for conduct for which there has been no conviction.’ ”); State v. Green, 62 N.J. 547, 571, 303 A.2d 312, 325 (1973) (Unproven allegations of criminal conduct should not be considered by the sentencing judge, but arrest could be relevant because it could lead to “factual material which the defendant does not contest”) (emphasis added).
In sum, as I see it, the State should not be permitted to introduce evidence of contested, uncharged criminal conduct in an effort to enhance Smith’s punishment for the offense of which he was convicted. The trial judge has countless means to determine the character and background of a defendant without the necessity for him to consider controverted evidence of uncharged and unconvicted criminal conduct. A sentencing judge is given the power to consider information regarding “the convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background, and any other matters that a judge ought to have before him in determining the sentence that should be imposed.” Bartholomey v. State, supra, 267 Md. at 193, 297 A.2d at 706; see also Driver v. State, 201 Md. 25, 31-32, 92 A.2d 570, 573-74 (1952). Other considerations include the defendant’s education, family relationships, work experience, military history, drug dependencies, sociological tendencies, psychological well-being, intelligence, probation and parole records, and institutional history. See Huffington v. State, supra, 304 Md. at 577-78, 500 A.2d at 281 (institutional history); Driver v. State, supra, 201 Md. at 33-34, 92 A.2d at 574 (medical report); Donner v. Cal*183vert Distillers Corp., 196 Md. 475, 493, 77 A.2d 305, 312 (1950) (official records). The sentencing judge is not restricted by evidentiary rules, and relevant facts “can be derived from the evidence presented at trial, the demeanor and veracity of the defendant gleaned from his various court appearances, as well as the data acquired from such other sources as the presentence investigation or any personal knowledge the judge may have gained from living in the same community as the offender.” Johnson v. State, 274 Md. 536, 541, 336 A.2d 113, 115-16 (1975) (footnotes omitted). Thus, it is clear that the sentencing judge has a plethora of facts and reliable sources at his disposal when sizing up the character of the offender.
I am confident that sentencing judges can competently impose punishment with the numerous tools now provided. The sentencing judge need not reach out and consider disputed matters relating to serious charges. Controverted criminal allegations are unreliable and unresolved, and merely inject uncertainty and prejudice into the sentencing judge’s consideration.
Accordingly, I dissent and would remand for resentencing.
Judge ELDRIDGE has authorized me to state that he concurs with the views expressed herein.