¶1dissenting.
¶2I must respectfully dissent. In my opinion the sentencing procedure conducted by the court violates article I, sections 6, 6-A and 7 of the Maine Constitution.
¶3The precise novel issue before the court is: in the sentencing process can the trial court consider infamous crimes alleged to have been committed by the defendant for which the defendant has never been charged or convicted? I believe it cannot.
¶4The sentencing process is the culmination of a criminal prosecution. A criminal prosecution is the procedural vehicle by which an individual can legally be deprived of his liberty. To zealously enforce our constitutional safeguards throughout the procedure leading up to the deprivation of liberty and then to abandon them at that critical point, is to produce a result that clearly signals a radical defect in the system of justice.
¶5There is little guidance afforded by statute or rule as to the form or specifics of information that can be received and considered by the court in the sentencing process. A probation officer is required by statute to “investígate any criminal case or matter referred to him [by the court] for investigation and report the result of the investigation.” 34-A M.R.S.A. § 5404(1) (Supp.1984-1985). The minimum requirements of the content of a pre-sentence report are set forth in M.R.Crim.P. 32(c)(2). The only specific piece of information required by the rule is “any prior criminal record.” Our previous decisions, cited by the court, do not address the issue here presented.
¶6A Class C crime is “infamous” within the meaning of the state constitutional requirement that infamous crimes be presented by indictment. 17-A M.R.S.A. § 9 (1975).
¶7For the court to have jurisdiction of the subject matter and the person necessary for the criminal prosecution of a felony, compliance with section 7 is essential. See Low’s Case, 4 Me. 439, 452 (1827) (individual has constitutional right not to be held to answer for infamous crime on bill of indictment found by less than 12 grand jurors); M.R.Crim.P. 12.
¶8Article I, section 6-A was added to the Declaration of Rights of the Constitution by Amendment LXXXIX, effective November 20, 1963, for the stated purpose of “a new due process clause forbidding discrimination” as a “second or repeat guarantee” of protection found in the Declaration of Rights. See First Report of Maine Constitutional Commission to the Legislature of the State of Maine, January 4, 1963.
¶9Long before the passage of this “second or repeat guarantee,” our court addressed those “guarantees” provided in section 6 and 7. In State v. Learned, 47 Me. 426 (1859), in determining that an individual could not be convicted under a complaint in *170the form prescribed in an 1858 statute, the court stated:
We do not doubt the power of the Legislature to prescribe, change or modify the forms of process and proceedings in all civil actions_ But in criminal prosecutions, the exercise of this right is limited and controlled by the paramount law in the Constitution. It has for centuries, since the declaration in the Magna Char-ta, been the boast of the common law, that it protects with jealous care the rights of the accused. It not only secures a speedy and impartial trial by jury, but it requires that no person shall be held to answer, until the accusation against him is formally, fully and precisely set forth, that he may know of what he is accused, and be prepared to meet the exact charge against him. This right of the respondent has ever been regarded as sacred and essential to the protection of the individual citizens. In all the changes of forms, and in the principles and practices of the law, this right has remained untouched and unchanged. The people have not been willing to leave it without the express sanction of the Constitution. In the Declaration of Rights, it is set down as one of the rights of the accused, “in all criminal prosecutions, to have a right to demand the nature and cause of the accusation, and have a copy thereof; and that he shall not be deprived of his life, liberty, property or privileges, but by the judgment of his peers, or the laws of the land” .... This “law of the land” is not simply the existing statute law of the State, but, as has often been decided, it is the right of trial according to the process and proceedings of the common law.
¶10Id. at 432, 433. See also State v. Gurney, 37 Me. 156, 163 (1853) and Saco v. Wentworth, 37 Me. 165, 176 (1853) (Legislature has no power to impair constitutional right of trial by jury by imposing penalties on appeal from conviction).
¶11Not only have we not allowed the Legislature to infringe by statute upon these constitutional rights of an individual, we have been equally protective when the purpose of the legislation was “to legalize and make valid 'the doings’ of the court in criminal cases when it had no jurisdiction.” In State v. Doherty, 60 Me. 504 (1872), the court held the Legislature could not make legal and valid indictments returned by grand jurors impaneled and sworn by the Superior Court when that court had no criminal jurisdiction. The court stated:
When applied to proceedings in criminal cases, the expression “due process of law,” or “the law of the land,” means that no person shall be deprived of life, liberty, property or privileges, without indictment or presentment by good and lawful men, selected, organized and qualified, in accordance with some pre-exist-ing law, and a trial by a court of justice, according to the regular and established course of judicial proceedings.
¶13This court, through its history of repeated assurance to the individual of the sanctity of his constitutional protections, recognizes that the Declaration of Rights is designed to exclude arbitrary power from every branch of government. We cannot assert that the legislative branch has no power to impair a right given by the Constitution and condone exclusion of the judicial branch from that prohibition.
¶14By requiring the defendant to “answer to” charges of infamous crimes based upon affidavits, the court violates the mandate of section 7. To further require the defendant to forego a “speedy public and impartial trial” and a “judgment of his *171peers,” as it relates to those charges before depriving him of his liberty, violates the mandates of sections 6 and 6-A. In the guise of “obtaining a complete and accurate picture of the person to be sentenced,” the court cannot justify this violent impairment of an individual's constitutional rights.
¶15I would vacate the sentence and remand the matter to the Superior Court for resen-tencing of the defendant.
¶16. I do not here address the trial court’s consideration of Robert Dumont’s "lack of remorse" as an "aggravating circumstance" in determining the length of sentence imposed. My views in that regard remain those expressed by me in State v. Farnham, 479 A.2d 887, 893-96 (Me.1984).
¶17. 17-A M.R.S.A. § 9(1) (1983) provides:
Notwithstanding any other provision of law:
1. All proceedings for Class A, B and C crimes shall be prosecuted by indictment, unless indictment is waived, in which case prosecution may he by information.
¶18. The liability for punishment on conviction for a crime, rather than the punishment actually inflicted is the criterion that renders an offense infamous. LeClair v. White, 117 Me. 335, 104 A. 516 (1918); State v. Vashon, 123 Me. 412, 123 A. 511 (1924). See also Opinion of the Justices, 338 A.2d 802 (Me.1975).
¶19. The provision of 17-A M.R.S.A. § 9(1) allowing the individual to waive indictment and the court to gain jurisdiction by information provides an optional and voluntary procedure to the individual. See M.R.Crim.P. 7 and Tuttle v. State, 158 Me. 150, 180 A.2d 608 (1962), cert. denied, 371 U.S. 879, 83 S.Ct. 151, 9 L.Ed.2d 116, for discussion of safeguards for both the State and the individual when indictment is waived and criminal action instituted by information. See also Ex parte Gosselin, 141 Me. 412, 44 A.2d 882 (1946), appeal dismissed, 328 U.S. 817, 66 S.Ct. 982, 90 L.Ed. 1599 (whether indictment, as distinguished from complaint, is requisite to commencement of prosecution, depends on whether offense is punishable for period of one year).
¶20. Article I, section 6 of the Maine Constitution provides:
In all criminal prosecutions, the accused shall have a right to be heard by himself and his counsel, or either, at his election;
To demand the nature and cause of the accusation, and have a copy thereof;
To be confronted by the witnesses against him;
To have compulsory process for obtaining witnesses in his favor;
To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity. He shall not be compelled to furnish or give evidence against himself, nor be deprived of his life, liberty, property or privileges, but by judgment of his peers or the law of the land.
¶21.In January 1962, the Governor appointed a Commission to report to the 101st Legislature such changes and amendments to the Maine Constitution as appeared to be necessary or desirable. The Commission, inter alia, proposed as an addition to the Declaration of Rights, "a due process clause similar to that which appears as the 14th Amendment to the United States Constitution that would forbid discrimination against any person because of race, religion, sex or ancestry.” See 2 Legis.Rec. 2919 (1963). Initially, the proposed amendment read:
No person shall be deprived of life, liberty or property without due process of law, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.
¶22The proposal appeared as L.D. 1448 in the 101st legislative session. The majority of the Committee on Constitutional Amendments and Legislative Reapportionmate reported that the bill ought not to pass. The minority of the same Committee reported that the bill ought to pass, as amended by S-275 (deleting the language "because of race, religion, sex or ancestry.”). See 2 Legis.Rec. 2558-59. With this deletion, the proposed amendment was added to the Declaration of Rights of the Maine Constitution.
¶23. In Saco, we also explained that “by the process and proceedings of the common law" was meant "that the accused has a right to know the charge in the whole form and substance against him, to contest it, and if not proved to the satisfaction of a jury, to demand an acquittal." Id. at 172.
¶24. I borrow the language of this court, paraphrasing to meet the issue presented: Now for courts to be solemnly resolving, and legal writers of the first eminence to be gravely stating as a matter of settled law that a right given by the Constitution belongs to the citizen untrammeled and unfettered seems to me to be very idle, to say the least of it, if we construct a fiction of the law and allow it to prevail against the truth of a constitutional right to defeat the ends of justice. See Low's Case, 4 Me. at 452 and State v. Gurney, 37 Me. at 163.