Concurring in Part and Dissenting in Part.
I agree with the majority’s decision to remand this matter to the Shelby Circuit Court for it “to conduct a sentencing hearing pursuant to KRS 640.030(2) and render a decision regarding [Appellant’s] future disposition.”1 However, I find the majority’s conclusion “that the trial court committed error by not providing Jeffries a worthwhile hearing”2 unnecessarily esoteric, and I believe, in its attempt to find a more narrow holding than the one reached by the Court of Appeals, the majority sidesteps the only real issue in this case — i.e., whether the sentencing court denied Appellant procedural due process when it would not allow Appellant to examine, under oath, Dr. Peterson and the witnesses Appellant had subpoenaed from CKYDC. The majority “declinefs] to prescribe the exact procedures the trial court here, or trial courts in general, should follow”3 and instead concludes, without identifying any specific error committed by the sentencing court, that “the trial court did not provide Jeffries a fair opportunity to controvert the evidence against him at his eighteen-year-old sentencing.”4 In my view, however, the sentencing court either erred when it refused to permit Appellant to introduce this evidence, in which case we must remand the case to the sentencing court for a new sentencing hearing where the errors will not be repeated, or it committed no error, in which case we should affirm the sentencing court’s decision to send Appellant to prison. I see no middle ground. Because I believe the sentencing court’s exclusion of this evidence denied Appellant his due process, I, like the majority, would affirm the Court of Appeals, but I dissent in part because I disagree with the scope of the remand directed by the majority opinion.
I believe the dispositive question for this Court is whether, by excluding this testimony, the sentencing court failed to provide Appellant: (1) the “fair opportunity and a reasonable period of time ... to controvert”5 the factual contents and conclusions of Dr. Peterson’s report guaranteed by KRS 532.050(6); or (2) the “opportunity ... to present any information in mitigation in punishment”6 guaranteed by RCr 11.02. Because I believe the Court of Appeals correctly concluded that the sentencing court’s rulings did, in fact, deny Appellant procedural due process, and I see no reason to reinvent the wheel, I adopt that portion of Judge Tackett’s majority opinion for the Court of Appeals that states:
*65In the instant case, the sentencing court denied Jeffries due process in refusing to allow him to present evidence of his progress towards rehabilitation. Jefferies was not permitted to call treatment staff at Central Kentucky Youth Development Center (CKYDC) to testify regarding his progress. Neither was this evidence permitted by avowal. Furthermore, Jeffries was prohibited from cross-examining Dr. Katherine Peterson, the psychiatrist who prepared the court’s report assessing Jeffries’ likelihood of committing further offenses and/or suitability for probation. Refusing to allow Jeffries to present this evidence was error. Kentucky Rule of Criminal Procedure (RCr) 11.02 allows information to be presented in mitigation of punishment. As the Kentucky Supreme Court stated in Edmonson v. Commonwealth, Ky., 725 S.W.2d 595, 596 (1987), these requirements “are not mere procedural formalities, but are substantive and may not be ignored.” Herein, Jeffries should have been permitted to present “his side” of the case in mitigation of punishment.
While the Court of Appeals focused its analysis primarily on the question of whether the sentencing court’s ruling violated Appellant’s RCr 11.02 entitlement to present mitigation evidence, I would emphasize that the exclusion of this evidence also violated Appellant’s KRS 532.050(6) statutory entitlement to controvert the factual contents and conclusions in Dr. Peterson’s report. In my opinion, KRS 532.055(6) allows a defendant to do more than merely vocalize his or her disagreement with a Pre-Sentence Investigation Report or a psychological examination,7 and I believe the sentencing court denied Appellant the opportunity that KRS 532.050(6) guarantees him when it would not permit Appellant to introduce evidence that controverted Dr. Peterson’s findings by suggesting that Appellant was amenable to treatment and/or rehabilitation outside of an adult correctional institution. As this Court has held that “the presen-tence procedure for felony convictions under KRS 532.050 is mandatory”8 and that “compliance with the provisions of KRS 532.050 is a ‘must’ and is in fact a prerequisite to the entry of a valid judgment,”91 believe the trial court’s failure to permit Appellant to introduce evidence to controvert Dr. Peterson’s report requires us to remand this case for resentencing.
While the dissenters correctly observe that “in certain cases proper consideration for the seriousness of the crime is the paramount concern,”10 I do not believe that analysis is germane to the case before the Court. While Appellant’s crime was certainly heinous, the trial court in this case did not deny probation because it found that such a sentence would place the public in danger by “unduly depreciating *66the seriousness of the crime.”11 In fact, the trial court’s written order does not contain any written findings of fact as to the KRS 533.010(2) bases for denying probation. Instead, the order simply reflects the court’s conclusion — presumably based upon Dr. Peterson’s report and the trial court’s own assumptions regarding amenability to treatment — that the Department of Juvenile Justice could not provide Appellant with the treatment he required:
6. The Department of Juvenile Justice has failed to provide sexual offender treatment or a meaningful evaluation of the Defendant. Though they have recommended to the Court that if the Defendant be probated, there is a favorable prognosis for success, this is unsupported by any appropriate evaluation or information tendered to the Court.
7. The nature of the offense (i.e. murder, attempted rape), coupled with the fact that the Defendant has denied responsibility for the crime and exhibits no signs of remorse or acceptance of the jury verdict confirms that the Defendant is not amenable to any rehabilitation or treatment in the context of the Department of Juvenile Justice.
Therefore, based on the above findings, IT IS ORDERED AND ADJUDGED that the Defendant be incarcerated in an institution operated by the Department of Corrections to serve out the balance of his sentence.
I would not equate the sentencing court’s findings with a determination that “[t]he defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution.”12 While the finding that the Court actually made would likely provide a basis for declining to return Appellant to the Department of Juvenile Justice to complete a treatment program within six months,13 I have serious concerns as to whether the sentencing court’s decision to deny probation was made in accordance with KRS 533.010.
In any event, however, I believe the sentencing court’s finding that Appellant’s favorable probation prognosis is “unsupported by any appropriate evaluation or information tendered to the Court” must be considered in light of the court’s erroneous limitation on Appellant’s entitlement to controvert the primary basis for those findings. Because the sentencing court prevented Appellant from introducing evidence that was probative as to whether Appellant could receive the necessary treatment in a program aimed at sexual offenders who have not accepted responsibility for their offenses, I believe that Appellant is entitled to a new sentencing hearing where he is allowed to introduce evidence relevant to determining his suitability for treatment in the community. As KRS 533.010(2) contains a presumption in favor of probation,14 the sentencing court *67should first make an informed decision whether to sentence Appellant to a sentence of probation or conditional discharge. If, and only if, the sentencing court determines that probation or conditional discharge is inappropriate because “imprisonment is necessary for the protection of the public” for one or more of the reasons contained in KRS 533.010(2)(a)-(e), it should direct that Appellant be incarcerated in an institution operated by the Department of Corrections.15
. Majority Opinion, 95 S.W.3d 60, 63-64 (2002).
. Id. at 63.
. Id. at 63.
. Id. at 63.
. KRS 532.050(6).
. RCr 11.02(1).
.See Doolan v. Commonwealth, Ky., 566 S.W.2d 413, 414-415 (1978) (referring to the Appellant’s ability to "substantiate his contention that the prior criminal offenses listed in the report are not properly attributable to him” and the trial court’s ability to “fairly and accurately authenticate ” the veracity of the Appellant's claims (emphasis added)); Johnson v. Commonwealth, Ky., 967 S.W.2d 12, 13-14 (1998) (“At the hearing, Appellant presented several witnesses in his behalf, including [a] Youth Treatment Specialist ... and ... a clinical social worker from the ... center where Appellant had been confined.”).
. Eversole v. Commonwealth, Ky., 575 S.W.2d 457, 461 (1979).
. Id., citing Arnold v. Commonwealth, Ky., 573 S.W.2d 344 (1978).
. Dissenting Opinion at 95 S.W.2d 60, 68 (Johnstone, J., dissenting).
. KRS 533.010(2)(c).
. KRS 533.010(2)(b).
. KRS 640.020(2)(b).
. See KRS 533.010(2) ("[P]robation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for the protection of the public ...." (emphasis added)). Commentary to KRS 533.010 (Banks/Baldwin 1974) ("This subsection seeks to start the sentencing process with probation or conditional discharge as the desired disposition with a movement from there to a sentence of imprisonment only upon a finding of some particular reason justifying the latter.”); Turner v. Commonwealth, Ky., 914 S.W.2d 343, 347 (1996) ("After considering both the nature of the crime *67and the history of the defendant, the trial court should grant probation unless to do so would place the public in danger....”).
. Although KRS 640.030(2) requires courts also to consider as a sentencing option "whether the youthful offender shall be returned to the Department of Juvenile Justice to complete a treatment program ..KRS 640.030(2)(b), the sentencing court in this case need not consider that option upon remand as Appellant is now above the age of nineteen (19), and "youthful offenders shall not remain in the care of the Department of Juvenile Justice after the age of nineteen (19).” KRS 640.030(3).