Argued and submitted August 28,

reversed and remanded for resentencing November 26, 1979

#### STATE OF OREGON, *Respondent, v.*ROBERT LEE COLLINS, *Appellant.*

(No. 78-10-393, CA 13928)

602 P2d 1081

Dale D. Liberty, Sr., Oregon City, argued the cause d filed the brief for appellant.

Catherine Allan, Assistant Attorney General, lem, argued the cause for respondent. With her on e brief were James A. Redden, Attorney General, d Walter L. Barrie, Solicitor General, Salem.

Before Tanzer, Presiding Judge, and Thornton and mpbell, Judges.

*266THORNTON, J.

*267THORNTON, J.

Defendant was discovered and apprehended in the irse of burglarizing two adjoining apartment units Milwaukie. He appeals from his conviction after ~y trial of two counts of burglary in the first degree.

The sole assignment of error requiring discussion als with the propriety of the trial court’s having isidered prior to imposing sentence a typewritten mmary prepared by the district attorney's office of Pendant’s alleged further misdeeds.

Among the items in the summary that defendant s objected to were:

(a) An allegation that defendant had threatened 5 life of a witness for the state in the instant case;

(b) An allegation that after the verdict was en-ed defendant had conspired to escape, together with letailed description of the planned escape;

(c) A recommendation that a more severe sen-ice be imposed than recommended in the presen-ice report.

None of the above information was in the presen-ice report from the Corrections Division.

Defendant objected to the district attorney’s sum-.ry on the ground that it was based on hearsay; that was an invasion of the court’s sentencing preroga-es. Further, defendant disclaimed through his coun-that he threatened the witness’s life or was involv-in an escape try. Defendant was given an opportuni-to refute the derogatory information set forth in the nmary prior to imposition of sentence. Defendant not request that the derogatory information be sented by witnesses in open court.

We conclude that the circuit court’s action in con-ering the district attorney’s sentencing summary [uires that we remand for resentencing.

On appeal, defendant calls attention to ORS *268137.090 in support of this assignment. This section provides in pertinent part as follows:

> "The circumstances which are alleged to justify aggravation or mitigation of punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend * * *. The court may consider the report of presentence investigation conducted by probation officers pursuant to ORS 137.530 or any other person designated by the court.”

While the above provision appears to require that circumstances of aggravation be presented by in-court testimony, the state argues that our Supreme Court has interpreted this not to be an absolute requirement. In *Barber v. Gladden,*228 Or 140, 143, 363 P2d 771 (1961), *cert den*369 US 838 (1962), the court said:

> "A sentencing court is only required to take actual testimony as provided by ORS 137.090 when requested by either party. Otherwise, the court has considerable latitude in deciding what will be considered in affixing a penalty. *Admire v. Gladden,*227 Or 370, 362 P2d 380 [(1961), *cert den 368*US 971 (1962)]. * * *"

The state also points out that the court reaffirmed this interpretation in *Coffman v. Gladden,*229 Or 99, 103, 366 P2d 171 (1961), where it observed:

> "To hold otherwise would be little short of ridiculous. It would require the trial court when hearing the most perfunctory facts to proceed only by the formal process of swearing witnesses. The legislature would never have intended such a useless formality. The trial courts were granted a sensible discretion. *

Both cases are distinguishable in that in neither case did defendant object. Here defendant did object.

We conclude that the plain language of ORS 137.090 requires that the state must present this derogatory information by witnesses in open court. An unambiguous statute should not be interpreted but should be enforced according to its clear language. *State v. Young,*74 Or 399, 145 P 647 (1915).

Reversed and remanded for resentencing.