Hamilton v. State , 1989 Alas. App. LEXIS 40 ( 1989 )

COATS, Judge,

concurring.

In this case Hamilton faced a presumptive sentence of ten years. Judge Michal-ski found that several aggravating factors applied to Hamilton’s sentence. Two critical aggravating factors were that Hamilton’s prior criminal history included conduct involving aggravated or repeated instances of assaultive behavior, AS 12.55.-155(c)(8), and that Hamilton had a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which he was being sentenced. AS 12.55.155(c)(21). These aggravating factors were based on hearsay evidence that Hamilton had committed two prior sexual assaults. Hamilton testified at the sentencing hearing and denied that he had committed these alleged prior assaults. It appears that Judge Mi-chalski placed great weight on the evidence that Hamilton committed the prior assaults; he sentenced Hamilton to twenty years with five years suspended. Under these circumstances, I have no quarrel with the majority’s decision requiring more than the hearsay which the state presented at sentencing to show that Hamilton committed the two prior assaults. I am not confident, however, that in every case where the defendant denies a material matter we should require the state either to call a witness to testify at the sentencing hearing or to prove the unavailability of a witness before using hearsay statements. I would prefer to resolve this issue on a case-by-case basis. It is important for the trial court to have as much reliable information as possible when sentencing a defendant. I am concerned that the rule which the court announces in this case may unduly restrict that information in other cases.