concurring in part and dissenting in part.
I concur in the principal opinion in all respects except, in my view, Laron Hart’s knowing and voluntary waiver of his right to have a jury participate in his sentencing should prohibit him from demanding that a jury participate in his sentencing on remand. Prior to the beginning of the guilt phase of Hart’s original trial, at a time when he would not necessarily have been subject to a sentence of life without parole, he waived the right to have a jury participate in his sentencing. Pursuant to this Court’s prior case decisions, a defendant may not waive jury sentencing in the original proceeding only to demand jury sentencing1 on remand. Once a strategic jury waiver decision is made, the defendant should be held to his decision. Unlike the principal opinion, in my view, there is no qualitative difference in this resentencing context that should permit Hart to withdraw his knowing and voluntary waiver.
Relevant Facts to Jury Waiver
As the principal opinion acknowledges, Hart decided to waive jury sentencing before the guilt phase of his trial.2 At the time he made this waiver, Hart could have been found guilty of first-degree murder or second-degree murder — and sentenced accordingly — or he could have been found guilty of nothing at all. Nevertheless, Hart argues that he made his waiver, at least in part, because no amount of mitigating evidence would have changed the fact that the law mandated a life without parole sentence for a first-degree murder conviction. Hart’s argument would be well taken if his waiver had occurred after the jury had found Hart guilty of first-degree murder.3 But, as the principal opinion points out, when Hart waived his right, he did so with the knowledge that he might have been convicted of second-degree murder, an offense that carries a sentencing range of 10 to 30 years or life with possibility of parole. This Court should presume on this record, therefore, that Hart strategically waived his right to jury sentencing because he would have preferred to have the judge determine punishment even if he was found guilty of second-degree murder.
Before trial, the circuit court conducted, on the record, an inquiry into whether Hart’s waiver was made knowingly, voluntarily, and intelligently. Hart affirmed that he wished to waive jury sentencing. He affirmed that he knew the judge would sentence him if he was found guilty, that the range of punishment would not be any different if he was sentenced by the judge, that he had discussed waiving jury sentencing with his lawyer, and that no one had talked him into waiving jury sentencing. Convinced that Hart’s waiver was knowing and voluntary, the circuit court accepted it.
Once the right to jury sentencing is waived, it is considered waived for all fu*252ture proceedings. In State v. Emery, 95 S.W.3d 98, 102-03 (Mo. banc 2003), this Court held that because the defendant had waived his right to jury sentencing, he would not be entitled to jury sentencing on remand. In State v. Nunley, this Court held that the waiver of a right to jury trial by a guilty plea remains valid after the case is remanded. 341 S.W.3d 611, 621-22 (Mo. banc 2011). And in State ex rel. Taylor v. Steele, this Court held that a waiver of the right to jury sentencing remained valid on remand even though the waiver preceded several cases of the United States Supreme Court that changed the law regarding jury sentencing. 341 S.W.3d 634, 646-48 (Mo. banc 2011). Taylor held that the waiver remained valid because it was an affirmative knowing, voluntary, and intelligent waiver made as part of the defendant’s sentencing strategy. Id. Taylor’s resentencing without a jury was, therefore, proper.
The principal opinion, however, finds that Hart is entitled to jury sentencing because the sentencer must make a “new — and qualitatively different — decision” than the choice before the sentencer prior to Miller. Op. at 240-41. The principal opinion holds that the difference is that the sentencer must now explicitly decide “whether [life without parole] is just and appropriate for the particular offender under the particular circumstances of the case[;]” a determination that it did not need to make pre-Miller. Op. at 240.
In my view, the procedure announced by the Supreme Court in Miller, and this Court today, does not require that a jury be the sentencer if the right to jury sentencing was waived prior to the original trial when the jury, because of the possibility of a conviction of a lesser included homicide offense, would have had an alternative to life without parole. This case presents no substantive legal change to the punishment permitted or the evidence allowed on resentencing. Miller does not require the sentencer to find any additional facts to impose punishment. Miller holds that, to impose a sentence of life without parole on a juvenile homicide offender, the judge or jury must conduct an individualized review of the myriad of factors discussed in the Miller decision, including the defendant’s age and the other circumstances surrounding the offense. Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2471, 183 L.Ed.2d 407 (2012). Additionally, this Court’s opinion today will not permit Hart to present any evidence that he would have been unable to present during his first trial. Section 557.036 allowed Hart to present evidence mitigating his punishment, including evidence relevant to the factors mentioned in Miller.
Much like the Miller decision itself, the change announced today is procedural rather than substantive. The principal opinion, correctly in my view, does not add alternative punishments for first-degree murder that the legislature has not approved; it only modifies the procedure for determining whether the legislatively authorized sentence may be imposed. While it is true that Hart may not have anticipated this procedural change when he decided to waive his right to jury sentencing, Hart certainly would have known that it was possible that the jury would be deciding how long he was to remain in prison. That strategic decision did not change. The range of possible sentences available at the time Hart decided to waive his jury sentencing provided an alternative to life without parole. The ultimate decision to be made at this point is how long Hart deserves to spend in prison. Most competent counsel representing a juvenile, when first-degree murder is a possibility, would strategically still prefer to have a judge, *253rather than a jury, make this determination.
In my view, because Hart waived his right to jury sentencing prior to the guilt phase of his trial, this Court’s precedents cited above support a holding that Hart be held to the waiver of his right to jury sentencing just like any other statutory or constitutional right that he knowingly and voluntarily waived.
Conclusion
In conclusion, while it has been stated that you never have to give credit to a referee for making the right call, the reader should note the extraordinary care with which this case — and Nathan, decided contemporaneously — has been decided. The Court strictly adheres to the mandates of Miller without speculating as to what the United States Supreme Court may decide in the future, while at the same time, protecting the legislature’s constitutional prerogative to decide the policy question of whether to authorize alternative constitutional sentence(s) to mandatory life without parole for juveniles who commit first-degree murder. The constitutionally delegated and cherished authority of the general assembly to make this policy decision comes with a constitutional and practical obligation to act accordingly. The legislature’s continued failure so to act4 will lead to the ever-present reality that juveniles who have been found guilty of first-degree murder by either a judge or a jury will have that conviction voided each and every time the sentencer determines that life without parole is not a just and appropriate sentence for that juvenile. Those juveniles, who have been found guilty beyond any reasonable doubt of the most serious crime, will instead, by constitutional necessity, have their first-degree murder convictions voided and will be convicted and sentenced in accordance with the only legislatively authorized alternative: the punishment authorized for second-degree murder.
. Consistent with the principal opinion, the phrases "jury sentencing” and "sentencer” refer to the procedure authorized by § 557.036.3, RSMo Supp. 2012. Op. at 234-35 n. 2.
. Pursuant to § 577.036, Hart’s trial was bifurcated into a guilt phase and a sentencing phase.
.This is the factual situation found in State v. Nathan, 404 S.W.3d. 253, 2013 WL 3984730 (Mo.2013), decided contemporaneously with this case.
. As noted in the principal opinion:
In the 2013 legislative session, the first since Miller, the Missouri General Assembly considered several bills that sought to address the effects of Miller on section 565.020.2. See, e.g., House Bill No. 541 (2013) (mandatory sentence for juvenile offenders of life in prison with no eligibility for parole during the first 50 years); Senate
Bill 377 (2013) (same); House Bill 619 (2013) (mandatory sentence for juvenile offenders of life in prison with no eligibility for parole during the first 25 years); Senate Bill 408 (2013) (same); Senate Bill 253 (2013) (no mandatory sentence for juvenile offenders, authorizes range of punishment between 10 years and life without parole).
Op. at 243 n. 9.