I dissent and would set aside the judgment sentencing defendant and remand the case to the trial court for further proceedings at the sentencing stage because the trial court refused to permit defendant’s counsel to cross-examine the parole officer at the sentencing process.
As stated by the majority, “After inquiry by defense counsel the court stated for the record that the author of the pre-sen-tence report had, in addition, to furnishing the written statement recommended orally to the court, in the absence of counsel, that defendant should receive a prison sentence and that defendant could not be successfully supervised if he were placed on probation.” The author of the report was Richard M. Sorci, a Board of Control parole agent.
Defense counsel then requested permission to call Mr. Sorci, who was present in court, as a witness for the purpose of determining by examination the basis of his opinion defendant was not a fit subject for probation.
After the State’s objection that such procedure would be against public policy the court denied defendant’s request.
In this appeal defendant is not challenging his conviction resulting from his plea of guilty. He asks only for a remand of the case to the trial court so he may test by cross-examination validity of certain opinions which were material factors in determining his sentence before it is imposed.
Stated in other words, defendant merely seeks opportunity to challenge the conclusion sought to be drawn, to detemine whether it is based on logic or prejudice and, if the latter, to refute and discredit the opinion.
I. I have no quarrel with much of what is said in announcing general propositions of law in Divisions I through V of the majority opinion. My disagreement is with Divisions VI and VIII.
*43In Division VI the majority states, Defendant’s complaint is that denial of the right to examine the validity of the parole agent’s conclusion was a denial of defendant’s right to be effectively represented by counsel at a critically important proceeding. This argument proceeds from a faulty premise. The hearing did not involve any ‘right’ of defendant to probation. It was a hearing to determine whether the sovereign state against which defendant had offended should grant ‘grace, favor or forebearance’.”
Although recognizing the sentencing process is not immune from scrutiny the majority fails to state why a probation officer should be immune from inquiry as to factual basis giving rise to his opinion defendant could not be successfully supervised if placed on probation.
I believe opportunity for such criticism could improve the accuracy of facts on which the sentencing judge relies.
Defendant makes no contention he has a “right” to a bench parole as suggested in the quoted portion from Division II, supra, but that he is “entitled only to justice”.
In the two errors assigned defendant contends (1) the trial court deprived him of his constitutional and statutory right to assistance of counsel by prohibiting defense counsel from examining a parole agent as to the validity of the agent’s conclusions defendant should receive a prison sentence since he was not supervisable. The conclusion having been orally communicated to the court prior to the sentencing hearing and outside the presence of defendant and counsel and (2) the court’s refusal to permit defendant’s calling the parole agent as a witness to test the validity of his adverse opinions constituted procedural conduct prejudicial to defendant.
His position is that he does have a right to have standards of due process applied when the court receives information on which its decision will be based.
“* * * traditional Anglo-American conception of due process, applicable as well to administrative as to judicial proceedings, includes the fundamentals of the adversary system: Assistance of counsel; disclosure of legal and factual materials to be considered by the tribunal; and opportunity for confrontation, cross-examination, and rebuttal. Our traditional high regard for those procedures rests on the judgment that in the long run they serve to make the fact finding and conclusion drawing processes more accurate and reliable.” Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv. L. Rev. 821, 824-825 (1967-1968). This appears in footnote 18 of the Note:
“* * * [Tjhis requirement (of an opportunity for cross-examination) has been deemed essential in every court and in every form of proceeding. Even for the various administrative boards created by modern statutes * * * it is common to provide (where any interest of a citizen may be affected adversely by the board’s ruling) that an opportunity to hear the evidence shall be given. In short, however radically the jury-trial rules of evidence may be dispensed with, * * * this one at least remains as a fundamental of fair and intelligent investigation of disputed facts [5 Wigmore on Evidence, Third Ed., section 1940].”
II. State v. Delano, Iowa, 161 N.W.2d 66, 71-72, contains this:
“This is not to say the sentencing process is immune from scrutiny.
“Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326, although adhering to the pronouncement of Williams v. People of State of New York, supra, [337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337] refused to extend it to a radically different fact situation.
“In Townsend v. Burke, 334 U.S. 736, 740-741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, due process was found lacking where the sentencing judge had been furnished incorrect information in or had misread the record of prior convictions.
*44“In the notes appended to rule 32 as amended, Federal Rules of Criminal Procedure, 18 U.S.C.A., the Advisory Committee on rules indicated its belief Williams v. State of Oklahoma, supra, [358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516] and Williams v. People of State of New York, supra, held the due process clause of Amendment 14 does not require that sentencing court must disclose report of the presentence investigation to defendant or give him an opportunity to rebut it. However, the committee noted substantial policy arguments that the accused have an opportunity to see and refute allegations made in such reports. It expressed hope courts would make increasing use of their discretion to make such disclosures so defendants generally may be given full opportunity to rebut or explain facts in the presentence report which will be material factors in determining sentences.
“In this connection see also A.L.I. Model Penal Code, proposed official draft, section 7.07(5) which provides:
“ ‘Before imposing sentence, the Court shall advise the defendant or his counsel of the factual contents and the conclusions of any presentence investigation or psychiatric examination and afford fair opportunity, if the defendants so request, to controvert them. The sources of confidential information need not, however, be disclosed.’
<<* * *
“As a note of caution it has been suggested that ‘Kent [(Kent v. United States) 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84] and Specht [supra], read together, seem to indicate that some form of hearing or opportunity to rebut matters in confidential reports which significantly affect important dispositional or sentencing decisions may emerge as a constitutional necessity in the not too distant future.’ [Maxim N. Bach] The Defendant’s Right of Access to Presentence Reports, * * * [4 Criminal Law Bulletin, No. 3, 160] 167.”
The author of the Note, Procedural Due Process at Judicial Sentencing for Felony, supra, 81 Harv. L. Rev at 827-828, expresses a similar caution. “However, recent decisions of the court cast doubt on the view of due process which underlies Williams [Williams v. People of State of New York, supra]. In 1963 the right to counsel guaranteed by the sixth amendment was made binding on the states through the due process clause of the fourteenth amendment; in 1967 the Court held specifically that this right applies at sentencing [Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336], Moreover, Kent v. United States and In re Gault [387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527] suggest the willingness of the Court to re-examine the meaning of due process in proceedings traditionally characterized as discretionary.”
III. The majority states at the outset, “Defendant has had counsel at all times.” This is true but the vice of the sentencing was absence of a real opportunity to challenge accuracy of information on which the probation officer based his opinion.
It could hardly seem that mere presence of counsel could make the procedure consistent with due process if counsel were denied opportunity to challenge whether his opinion was based on reason, rather than emotion or arbitrary will. The furnishing of counsel and then restraining the extent of his assistance is tantamount to a denial of counsel.
“The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is the essence of justice. Appointment of counsel without affording an opportunity for hearing on a ‘critically important’ decision is tantamount to denial of counsel.” Kent v. United States, supra, 383 U.S. at 561, 86 S.Ct. at 1057, 16 L.Ed.2d at 97.
There is no irrebuttable presumption of accuracy attached to the probation officer’s opinion.
IV. In Division IV of the majority we find this statement:
“Assuming, arguendo, that the court considered the recommendation, there is no in*45dication that the court abdicated its responsibility to the parole agent.”
In our own cases we have stressed the desirability of basing each sentence upon the fullest possible knowledge about the prisoner’s character, background and antecedent career. The quoted conclusion of the majority is not very persuasive. At the hearing on remand the extent of cross-examination should be subject to the trial court’s sound discretion but to shut off this right altogether is an abuse of discretion.
I would remand for further proceedings.
RAWLINGS and BECKER, JJ., join in this dissent.