concurring.
Under Alaska law, when a defendant pleads guilty or no contest to a eriminal charge, that plea limits the defendant's ability to contest issues of fact at sentencing. We held in Ashenfelter v. State, 988 P.2d 120 (Alaska App.1999), that defendants are not entitled to deny their factual guilt of the charges to which they have pleaded guilty or no contest. Id. at 123.1 Thus, a sentencing judge can properly disregard a defendant's claim of innocence regarding the charge to which they have pleaded guilty or no contest, even when that claim of innocence is made under oath. Evans v. State, 23 P.3d 650, 652 (Alaska App.2001).
As explained in Judge Bolger's lead opinion, Ulak and the State chose to resolve the various criminal charges against Ulak by having Ulak plead guilty to a single count of third-degree assault under AS 11,41.220(a)(1)(C)Gi) (recklessly "caus[ing] physical injury to a child under 10 years of age on more than one occasion"), and by having Ulak concede aggravating factor AS 12.55.155(c)(2) (that "her] conduct during the *1259commission of the offense manifested deliberate cruelty to another person"). The problem in this case arises from the fact that the parties and the superior court went into the sentencing hearing without any clear understanding of what facts Ulak conceded when she entered this plea and admitted this aggravating factor.
Ulak took the stand and essentially denied any misconduct: she admitted that she had struck the child, but she contended that this had been normal discipline. She denied physically abusing the child, or injuring the child deliberately, or treating the child with cruelty. Then, based on this testimony, she demanded that the superior court redact the pre-sentence report by excising the statements attributed to her grandchildren, who told the authorities that Ulak deliberately abused the victim on numerous occasions.2
The State responded that, because Ulak pleaded guilty to recklessly injuring the vie-tim on more than one occasion, and because Ulak conceded that she acted with manifest cruelty toward the victim, she was barred from disputing any of the information in the pre-sentence report.
The sentencing judge-Superior Court Judge Marvin Hamilton-decided to cireum-vent this legal problem by leaving the grandchildren's inculpatory assertions in the pre-sentence report, but supplementing the pre-sentence report with Ulak's exculpatory statements. All three members of this Court agree that this was error. Under Criminal Rule 32.1(F), Judge Hamilton was required to resolve the disputed factual issues.
Technically, Criminal Rule 32.1(f) offered Judge Hamilton another option: he could have declared that the disputed factual issues were irrelevant to his sentencing decision, and then deleted the inculpatory assertions from the pre-sentence report. However, in Ulak's case, the disputed accusations of child abuse go to the very heart of the State's case against Ulak. Because there was no trial (and thus no evidentiary record to support Ulak's assault conviction and her concession of the "deliberate cruelty" aggravating factor), the pre-sentence report is the only source for determining the underlying factual basis for Ulak's conviction and the underlying factual support for the superior court's sentencing decision.
At first blush, the answer to this legal problem might appear to be simple. Under this Court's decision in Ashenfelter, because Ulak pleaded guilty to recklessly causing physical injury to the victim on more than one occasion, and because Ulak conceded that her conduct toward the victim manifested deliberate cruelty, the sentencing judge apparently should have disregarded Ulak's denials of the facts underlying this charge and this aggravating factor. In other words, TUlak would be foreclosed from asserting that she never physically abused the victim, and never struck the victim except for normal discipline, and never treated the vietim eruelly-because these assertions are seemingly inconsistent with Ulak's admission of the elements of third-degree assault as defined in AS 11.41.220(a)(1)(C)(if) and Ulak's concession of the "deliberate cruelty" aggravator.
The matter is more complicated, however, because Ulak's crime is not defined in terms of a single assault, but rather as repeated conduct-reckless infliction of injury to the child "on more than one occasion". The grandchildren's statements recounted in the pre-sentence report describe several incidents of abuse; but, technically, the State needed to prove only two incidents of abuse to establish the charged crime. Arguably, Ulak might be able to object to assertions in the pre-sentence report describing more than two incidents of her violence toward the vice-tim. But even then, it is not clear which of *1260the various incidents described in the pre-sentence report Ulak might be allowed to challenge.
Judge Bolger's lead opinion resolves this problem by relying on the rule that governs the acceptance of a guilty plea under Alaska Criminal Rule 11(f) and the corresponding federal law. Basically, Criminal Rule 11(f) states that a court should not enter a criminal judgement based on a defendant's guilty plea without hearing an offer of proof as to the factual basis of that plea-ti.e., a description of the facts which the State would be prepared to prove at trial to justify the defendant's conviction for the specified crime. I agree that this is the correct rule under Alaska law, and I further agree that we should remand Ulak's case to the superior court so that Judge Hamilton can determine the factual basis of Ulak's plea. This, in turn, will determine the extent to which Ulak is barred from attacking the inculpatory assertions in the pre-sentence report.
However, a related and potentially more difficult problem exists when a defendant pleads no contest (rather than guilty). In Alaska, defendants may plead no contest by right, and the court is not allowed to demand that the defendant admit that there is a factual basis for the plea. See Miller v. State, 617 P.2d 516, 518 (Alaska 1980); Jones v. State, 215 P.3d 1091, 1095-96 (Alaska App.2009). More specifically, our supreme court held in Miller that Criminal Rule 11(f) does not apply when a defendant pleads no contest:
[T]he only inquiry permitted the trial court by Criminal Rule 11 is that of determining whether the plea [of no contest] is knowing and voluntary.... [Once the trial court determines that a plea of nolo contendere is knowing and voluntary, [the court] is bound to accept that plea.... Subsection (£) [of Criminal Rule 11], by its terms[,] applies only to guilty pleas.... [Tlo require a defendant to show that there is a reasonable basis for a plea of nolo conten-dere puts the defendant in the awkward position of having to demonstrate his guilt in order to be allowed to plead nolo conten-dere. Such a practice destroys the unique purpose of the nolo [contendere] plea, which is that the issue of guilt shall not be contested.
Miller, 617 P.2d at 518 (internal citations omitted).
But even though a court may not demand that a defendant who offers a plea of no contest concomitantly acknowledge the factual truth of the State's case, the court still needs to identify the factual assertions that will be taken as proved for purposes of the sentencing proceedings. If these factual assertions are unidentified, the court will be unable to ascertain the scope of the facts that the defendant has conceded (for purposes the Ashenfelter rule) when resolving questions involving the proper content of the pre-sen-tence report and whether the State is required to present live testimony at the sentencing hearing.
Because of this, I would expand the rule that we are now adopting for guilty pleas, so that it covers no contest pleas as well. Even though a defendant who pleads no contest need not concede the factual truth of the State's allegations, the legal effect of the plea is that the sentencing court is entitled to treat each element of the offense as proved (despite the defendant's protestations of factual innocence). Scott v. State 928 P.2d 1234, 1238 (Alaska App.1996). I therefore believe that, even in cases where defendants plead no contest, a court can still require the parties to describe or identify the factual assertions that will be taken as proved for purposes of sentencing.
Judge Coats contends (in his separate opinion) that it is too late for the superior court to go back and identify the factual basis of Ulak's plea and the factual basis of Ulak's concession of the "deliberate cruelty" aggravator. Judge Coats explains his conclusion by noting that the superior court "long ago accepted Ulak's plea and ... sentenced her", and thus Ulak would be unable to "walk away from the plea agreement without prejudice".
*1261Judge Coats's statement implies that he believes that Ulak's double jeopardy or due process rights would be violated if the superi- or court were to inquire into the factual basis of Ulak's plea at this time. But there is no double jeopardy problem, because Ulak has not appealed her sentence. In other words, Ulak has not challenged Judge Hamilton's reliance on the grandchildren's factual assertions when he made the sentencing decision in this case. Instead, Ulak's sole contention on appeal is that those factual assertions should not remain part of her pre-sentence report.
With regard to the due process aspects of this case, Judge Coats argues that, because the parties failed to specify the factual basis of Ulak's plea to third-degree assault and the factual basis of her concession of the aggravating factor, the only fair thing to do is to have the superior court offer the State the choice of either (1) producing the live testimony of the grandchildren or else (2) suffering the deletion of all the incriminatory assertions from the pre-sentence report. But Judge Coats's approach to the situation ignores the rule of Ashenfelter and Evans. Defendants are not allowed to plead guilty and then demand that the State affirmatively prove their guilt during the sentencing proceedings.
In effect, Judge Coats is arguing that, at this point, Ulak must be deemed to have conceded nothing when she pleaded guilty to assaulting the child and when she agreed to the "deliberate cruelty" aggravating factor. To my mind, this suggestion is unfair and fundamentally inconsistent with Ashenfelter and Evans. It requires everyone to pretend that Ulak's guilty plea and Ulak's concession of the "deliberate cruelty" aggravating factor had no ascertainable factual basis-thus leaving the State the task of proving Ulak's guilt from seratech for purposes of sentencing.
The problem in this case arises from the fact that the parties failed to specify the factual basis of Ulak's plea. The solution is either to identify the basis of the plea or, failing that, to have Ulak ask the superior court to let her withdraw the plea. It would be unfair and improper to allow Ulak to maintain her guilty plea but, at the same time, demand that the State affirmatively prove Ulak's guilt at the sentencing hearing. For these reasons, I concur with Judge Bol-ger's resolution of this appeal.
. Citing Scott v. State, 928 P.2d 1234, 1238 (Alaska App.1996).
. See Alaska Criminal Rule 32.1(F). See also Evans v. State, 23 P.3d 650, 652 (Alaska App.2001), and Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989), both of which hold that a defendant has a conditional right of confrontation at sentencing: although a sentencing judge can normally rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted, the State must support its assertions with live testimony if the defendant offers a testimonial denial of those matters and submits to cross-examination.