concurring in part and dissenting in part.
Introduction
This case involves a dispute over what information may be included in a presentence report. In brief, Ulak entered a plea of guilty to one count of assault in the third degree. Later, at sentencing, Ulak offered testimony in which she denied statements by her grandchildren describing her treatment of C.S., the victim in this case. Ulak's grandchildren did not testify at the sentencing hearing and the State did not provide any evidence that they were unavailable to testify. Ulak moved to strike the grandechildren's statements from the presentence report. Judge Hamilton denied the motion but agreed to supplement the record with Ulak's affidavit setting forth her version of the offense.
This was error. Criminal Rule 82.1(F) requires the trial court to resolve all disputed allegations in the presentence report, or else declare that they do not need to be resolved and strike them from the record. I therefore would remand the case to allow the trial court to do this.
However, I have concerns about this court's opinion, which appears to allow the State to establish contested facts under Criminal Rule 11(f)-facts that the State might not be able to establish under Criminal Rule 32.1. Because Ulak has entered her plea and has been sentenced, she is not in the same position she would have been in if the court had established the basis for her plea before accepting the plea. Therefore, the State should be bound by the procedures for establishing facts under Rule 32.1(f).
Discussion
The State indicted Harrietta Ulak on four counts of assault in the first, second, and *1262third degree for abusing her three-year-old adopted daughter, C.S.1 Ulak entered into a plea agreement with the State in which she pleaded guilty to one count of assault in the third degree under AS a class C felony, for "recklessly [causing] physical injury to a child under 10 years of age on more than one occasion." Ulak also agreed to admit two aggravating factors-that her conduct during the commission of the offense manifested deliberate cruelty to C.S., and that she knew or reasonably should have known that C.S. was particularly vulnerable or incapable of resistance due to her extreme youth.2
In preparation for sentencing, a probation officer prepared a presentence report. Ulak filed a notice of several objections to assertions in the presentence report. In particular, Ulak objected to several hearsay reports by her grandchildren which purported to de-seribe Ulak's abuse of C.S.
Sentencing was held before Superior Court Judge Marvin Hamilton. Ulak testified at the sentencing hearing and denied many of the allegations in the presentence report. In particular, she denied the accuracy of most of the hearsay reports by her grandchildren. The State cross-examined Ulak about prior admissions that she had made to a state trooper. Ulak also called her husband, Paul Ulak, as a witness on her behalf. He de-seribed his wife as "a good mother." The State cross-examined Paul Ulak on prior statements he had made in which he had accused his wife of physically abusing C.S.
Ulak's grandchildren, who made the hearsay statements to which Ulak objected, did not testify at the sentencing hearing, and the State did not provide any evidence that they were unavailable to testify. Ulak then moved to strike the children's statements from the presentence report. Judge Hamilton denied this motion, but he agreed to supplement the record with Ulak's affidavit setting forth her version of the offense. Judge Hamilton imposed a sentence of 4 years with 1 year suspended and placed Ulak on probation for 5 years.
Under Alaska Criminal Rule 832.1(f), in sentencing proceedings, the trial court must resolve all disputed allegations in the presen-tence report or else declare that they do not need to be resolved and strike them from the record:
[The State can normally rely on hearsay allegations of a defendant's other misconduct-but not if the defendant takes the stand, denies the allegation, and submits to cross-examination regarding the matter. In that case, the State must either support its allegation with live testimony or, alternatively, prove that the hearsay declarant is not available to testify and furnish information to support the hearsay declarant's credibility.[3]
Ulak took the stand and denied the substance of the grandchildren's hearsay statements. The State never presented Ulak's grandchildren as witnesses or attempted to show that they were unavailable to testify. But rather than resolve the disputed factual issues, Judge Hamilton simply augmented the presentence report so that it contained the conflicting accounts. Therefore, Judge Hamilton did not follow the procedure mandated by Criminal Rule 32.1(F). The State agrees that Judge Hamilton erred in failing to follow the rule.
The State contends, however, that Ulak was not entitled to deny her grandchildren's statements because Ulak's testimonial denial was inconsistent with her plea of guilty to assault in the third degree and her concession of the aggravating factors, particularly *1263the aggravating factor that Ulak's conduct manifested deliberate cruelty to C.S. [Ae. Br. 11-12] The State relies on Evans v. State4
In Evans, the defendant pleaded no contest to one count of sexual abuse of a minor in the first degree5 At the sentencing hearing, Evans testified under oath and denied any sexual misconduct. The trial judge denied Evans's motion to strike the allegations in the presentence report. The judge simply noted that Evans had denied the allegations under oath, and stated that the evidence supported many of Evans's denials.6
Evans appealed, arguing that the trial judge erred in failing to redact the portions of the presentence report that he had challenged with his testimonial denial.7 We concluded that the trial judge had violated the provisions of Criminal Rule 32.1, and we stated that the judge "was obliged to resolve the disputed allegations or expressly declare that he did not need to resolve them (and then order them removed from the pre-sen-tence report)." 8
We observed, however, that "defendants are not entitled to deny their factual guilt of the charges to which they have pled guilty or no contest."9 Because Evans had entered a plea of no contest to one count of sexual abuse of a minor in the first degree, the judge "could properly disregard Evans's claim of innocence regarding this count, even though the claim was made under oath." 10 In addition, we noted that in Evans's testimony, he had admitted "making arguably incriminatory statements."11 We stated that the trial judge could consider these statements in determining the factual background of Evans's offense.12
Thus, under Evans, Judge Hamilton could rely on the fact that Ulak entered a plea of guilty to assault in the third degree and conceded two aggravating factors to reject Ulak's testimonial denial of the facts that formed the basis of the charge and the aggravating factors to which she pleaded.13 The court could also rely on the allegations in the presentence report, as long as they were "gufficiently verified." 14 But under Criminal Rule 32.1(f), Judge Hamilton was required to resolve all disputed allegations in the presen-tence report, or else declare that they did not need to be resolved and strike them from the record. Because Ulak made a testimonial denial and submitted to cross-examination, the State was required to "either support its allegations with live testimony or, alternatively, prove that the [grandchildren were] not available to testify and furnish information to support [their] credibility." 15
The State did not do this. And going back and revisiting Criminal Rule 11(F) at this time appears to me to raise serious problems. The trial court long ago accepted Ulak's plea and sentenced her. The parties are simply not in the same position they were in when Ulak entered her plea, when either side could walk away from the plea agreement without prejudice. If the State had wanted Ulak to concede certain facts as a condition of her plea agreement, the time to do that was before the court accepted Ulak's plea. Now that Ulak has entered her plea and has been sentenced, the fairest way to proceed is under the long-established procedures set forth *1264in Criminal Rule 82.1(f) for resolving disputed issues in presentence reports.
This procedure is set out in Evans.16 Because I see this court's decision as potentially a major departure from this established procedure, I am concerned that the effect of the decision will be unpredictable in any case in which the defendant enters a plea without agreeing to the facts that constitute the offense. And the court's decision could certainly be unfair to Ulak, who could not have foreseen this change in procedure.
I therefore agree with this court's decision that the case must be remanded to Judge Hamilton to resolve the disputed issues in the presentence report under Criminal Rule 32.1(f). But to the extent that the court's decision would allow the State to retroactively revisit Criminal Rule 11(f) to establish facts that it would not be able to establish under Criminal Rule 32.1(f), I disagree with this court's decision.
. AS 11.41.200(a)(3); 11.41.220(a)(1)(A), (C). 11.41.210(a)(3);
. AS 12.55.155(c)(2) & (c)(5).
. Charliaga v. State, 157 P.3d 1053, 1054 (Alaska App.2007) (citing Evan v. State, 899 P.2d 926, 929 (Alaska App.1995); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989)).
. 23 P.3d 650 (Alaska App.2001).
. Id. at 651.
. Id.
. Id.
. Id. at 652.
. Id. (footnote omitted).
. Id. (footnote omitted).
. Id.
. Id.
. Id.
. Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977).
. Charliaga, 157 P.3d at 1054.
. Id. at 651-52.