Dissenting.
I respectfully dissent. Apparently dissatisfied with the result, the majority has remanded this case to the trial court for a new sentencing hearing. But the majority opinion simply invites the trial court to reach the same conclusion it reached the first time:
We do not reach the issue of whether the sentencing court committed error in its refusal to permit the testimony of specific witnesses.... Instead, the trial court .should use its learned discretion when it must determine what process is due a youthful offender at a sentencing hearing held pursuant to KRS 640.030(2). Allowing Jeffries to call CKYDC treatment staff as witnesses or allowing him to cross-examine Dr. Peterson may be necessary to provide Jeffries with an appropriate sentencing hearing. However, any such decision lies within the due discretion of the trial court.
Op. at 63 (emphasis added). This is not a case where the trial judge thought he had no discretion. Judge Stewart recognized that he had discretion, he unequivocally and unambiguously exercised that discretion, and he did so without abuse. To ask him to do so again is an exercise in futility.
Though the case for harmless error would be a facile one to make, I believe there was no error because the law supports the trial court’s decision to exclude the witnesses. The majority casts the issue in this case as “what process is due a youthful offender during a KRS 640.030(2) sentencing hearing held after he or she has reached the age of majority.” Op. at 62. But that issue was statutorily decided, as Justice Stumbo observed in Johnson v. Commonwealth, Ky., 967 S.W.2d 12 (1998): “The prefatory language of KRS 640.030 states clearly that[] a youthful offender ... shall be subject to the same type of sentencing procedures ... as an adult _” Johnson, 967 S.W.2d at 15, quoting KRS 640.030. Instead, I suggest that this case presents a different issue: Does a trial judge at a sentencing hearing have the discretion to exclude witnesses, offered by the offender, that the judge finds possess no probative information?
To properly address that issue, we must consider the facts of this case. As Judge Emberton succinctly observed in his Court of Appeals’ dissenting opinion: “Jeffries’ crime was not one of petty, mischievous, juvenile behavior. He committed a brutal sexual assault on an elderly woman, beating her savagely about the head and face with rocks, leaving her to die.” Court of Appeals’ opinion at 7. After a mere eight *68months of incarceration and rehabilitation, Jeffries appeared before the judge as an adult for a new sentence and requested that he be probated, or at most returned to a juvenile facility for six months, and then discharged. In fact, those are two of only three options the legislature gave the judge, the final option being to incarcerate Jeffries as an adult. KRS 640.030. In making this decision, the legislature instructed the judge to consider (1) whether there is a substantial risk that Jeffries would commit another crime if probated or discharged, (2) whether Jeffries is in need of correctional treatment, or (3) whether probation or discharge would “unduly depreciate the seriousness of [Jeffries’] crime.” KRS 533.010.
This Court has made it abundantly clear that in certain cases proper consideration for the seriousness of the crime is the paramount concern. In Johnson, the youthful offender pled guilty to several counts of complicity to kidnapping and complicity to murder. At his resentencing as an adult, the trial judge examined the three KRS 533.010 factors and determined that Johnson was not at risk of committing further crimes and that Johnson received abundant treatment — to which he responded quite well — but the judge nonetheless denied probation and sentenced Johnson as an adult solely because of the serious nature of his offenses. In a unanimous opinion, this Court upheld the trial court’s decision:
Here, the record clearly reflects that the trial court thoughtfully evaluated both the defendant’s character and condition and the nature and circumstances of the crime he committed. Based on this evaluation, the court clearly felt that despite the apparently successful rehabilitation of Appellant, granting him probation would clearly endanger the public. This danger presents itself not in the form of Appellant, personally, but rather in the message his probation would send to the world. Appellant’s crime was indeed serious in nature, but the circumstances surrounding the crime indicate that it was also particularly cruel, committed in a callous way, and was apparently motivated not by passion or desperation, but rather merely by boredom and a desire to be entertained. To probate Appellant after only four years of detention, merely because he has cleaned up his act and apologized, would send a message to other children that they can get away with such reprehensible behavior and suffer only minor consequences. The trial court, in its discretion, obviously felt that to send such a message would endanger the public.
Johnson, 967 S.W.2d at 15-16. Unlike Johnson, who had received four years of treatment by the time he was resentenced, Jeffries had only received eight months of treatment. That, of course, is because Jef-fries was nearly an adult at the time he committed his brutal crimes. Moreover, Johnson was one of several accomplices, but Jeffries acted alone.
With these facts properly framed, it is now possible to examine whether the trial court’s decision to exclude certain witnesses violated Jeffries’ due process rights. To the majority’s credit, it avoids the specious argument asserted by both defense counsel and the majority in the Court of Appeals. With respect to cross-examining Dr. Peterson, defense counsel suggested that he did not know the criteria for the sentencing hearing, but he did know that Jeffries had “the right to confront and cross-examine his accusers.” The Court of Appeals’ majority opinion reiterated that argument, citing Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 702 (1994), cert. denied, 516 U.S. 1154, 116 S.Ct. 1034, 134 L.Ed.2d 111 (1996) (“A denial of effective cross-examination is a *69constitutional error of the first magnitude, and no showing of want of prejudice will cure it.”) But that argument is inapposite in this case: the right to cross-examine witnesses applies to trial, not sentencing. A convicted person may be permitted to cross-examine witnesses at a sentencing hearing, but he is not entitled to do so. See United States v. Silverman, 976 F.2d 1502, 1510 (6th Cir.1992) (en banc) (“[Confrontation rights do not apply in sentencing hearings as at a trial on the question of guilt or innocence.”); See also United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir.1990); United States v. Carmona, 873 F.2d 569, 574 (2nd Cir.1989). But these cases do more than suspend confrontation clause rights at sentencing hearings. These cases stand for the idea that after conviction the process due a person is diminished: “The Bill of Rights as interpreted by the Supreme Court focuses most protections in criminal cases on the adjudication of guilt and innocence. The Fourth Amendment exclusionary rule applies at the trial, but not at sentencing. The right of confrontation does not apply at sentencing.” Stephen Saltzburg, Due Process, History, and Apprendi v. New Jersey, 38 Am.Crim. L.Rev. 243, fn. 3 (Spring.2001) (internal citations omitted). Cf Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 2415, 153 L.Ed.2d 524, 538 (2002) (citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)) (Rules of evidence do not apply at sentencing hearings and the trial judge is allowed wide discretion as to evidence to be considered in imposing sentence.) See also United States v. Lopez, 898 F.2d 1505, 1512 (11th Cir.1990); United States v. Agyemang, 876 F.2d 1264, 1271 (7th Cir.1989).
Statutory protections, however, may exceed the constitutional baseline, as the majority correctly points out. For example, RCr 11.02 permits a defendant to “present any information in mitigation of punishment.” And KRS 532.050 permits a defendant to controvert the PSI or psychiatric examination. In order to examine the fairness of the due process Jeffries received, we must inspect the evidence he offered. With respect to the treatment center employees who worked with Jeffries for eight months, Jeffries’ counsel informed the court that the employees would testify that he had performed very well throughout treatment, that they did not testify on behalf of all of their wards (i.e., Jeffries was exceptional), and that Jeffries was not likely to reoffend. While this testimony. undoubtedly would have reflected favorably on Jeffries, it simply did not rise to the level of mitigation evidence given the trial judge’s limited options.
Appellant also complains that the trial judge improperly denied him the right to cross-examine Dr. Peterson. Although not in the record, Dr. Peterson’s report apparently concluded that Jeffries’ amenability to treatment was low and his potential to reoffend was high. Further, the report indicated, Jeffries’ past was a good predictor of his future — he committed these crimes while on home incarceration for previous crimes. And the fact that Jef-fries was a nonadmitter also weighed against his claims of rehabilitation. Defense counsel argued that he tried to enroll Jeffries in a nonadmitter rehabilitation program, but was not permitted to do so. He wanted to examine Dr. Peterson concerning the efficacy of nonadmitter programs and the possibility that Jeffries would respond well if he was afforded the opportunity to attend one. The trial judge correctly determined that this line of inquiry would not be appropriate at the sentencing hearing. Dr. Peterson’s testimony, even if favorable to Jeffries would have been little more than speculation: she could only testify that if Jeffries had been in a nonadmitter program, he might have *70responded favorably or if he were sentenced to a nonadmitter program for the following six months — the judge’s only option besides release or incarceration — then he would respond well. Such second guessing and prediction is hardly the type of evidence contemplated by RCr 11.02 and KRS 532.050.
Finally, the majority determined that “Jeffries did not receive the same treatment that an adult offender would have received under KRS 532.050. Jeffries should have been afforded a meaningful opportunity to controvert the evidence -against him at his sentencing hearing.” Op. at 62. But the majority offers no case law to support the claim that these witnesses would have been permitted at an adult sentencing hearing. In fact, the trial judge asserted that he would not have allowed these witnesses at an adult proceeding.
To conclude, I agree with Judge Ember-ton that Jeffries was afforded all the process he was due by the trial court. A psychological report and a PSI were prepared on Jeffries and these documents were examined by counsel and the trial judge. Jeffries was represented by counsel at the hearing. Jeffries’ counsel was permitted to admit evidence and argue on Jeffries’ behalf. Given the nature of the crime, the diminished due process rights at sentencing, the limited probativeness of the proposed testimony, the limited sentencing choices afforded the trial court, and the court’s discretion to admit evidence, I agree with Judge Stewart that these witnesses would have been superfluous.
GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.