dissenting.
Because I object to almost every aspect of the majority opinion, from its jurisdictional explanation to its remedy, I respectfully dissent. There are, however, four specific points in the analysis upon which I will comment, in the hope that they will be carefully scrutinized before any attempt is made to extend the majority's rationale beyond its precise application to this case.
First, and central to its determination that the statute as written is unconstitutional, is the majority's notion that a capital defendant must be entitled, at his choice, to waive jury findings as to some, but not all, of the facts necessary to establish his eligibility for a death sentence. As I understand it, this position is premised on a combination of recent United States Supreme Court jurisprudence entitling a criminal defendant to jury findings of any facts increasing his penalty beyond that permitted by a guilty verdict alone, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and the majority's own belief that a capital defendant's interest in pleading guilty to a capital offense is such that conditioning his plea on his accession to judicial fact-finding at the sentencing phase renders his knowing and intelligent waiver of jury sentencing ineffective. Were it the case that capital defendants actually had a constitutional right to demand acceptance of their guilty pleas, I might be forced to agree. That, however, is clearly not the case.
While the legislature cannot order the imposition of a death penalty in a manner that needlessly penalizes the assertion of a constitutional right, it is well-established that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury or that his guilty plea be accepted by a court. United States v. Jackson, 390 U.S. 570, 583-84, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) *514(relying on Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) and Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962)). In light of constitutional limitations on twice placing any person in jeopardy for the same offense, it should be patent that a criminal defendant could not possibly have a right to plead guilty to an offense that is less serious than, but the elements of which are included within, the charges brought against him.
In finally arriving at its articulation of the very right to jury sentencing upon which the majority now relies, the United States Supreme Court carefully explained that whenever the existence of a fact is essential to make available a sentence beyond the statutory maximum available for conviction alone, it is of no consequence whether the legislature chooses to characterize that fact as a sentencing factor or as an element of a greater offense. Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 4335 (2000). In either case, for purposes of the defendant's right to a jury trial, the legislature has effectively created a greater and lesser-included offense. In fact, this court has expressly relied on the Supreme Court's equation of elements and sentencing factors in this context for the proposition that a defendant's right to jury fact-finding in sentencing can be waived only in a manner sufficient for the waiver of a personal constitutional trial right. People v. Isaacks, 133 P.3d 1190, 1194-95 (Colo.2006) (requiring a voluntary, knowing, and intelligent waiver).
The majority holding therefore effectively mandates that a defendant be permitted, by pleading guilty to the statutory elements of first degree murder alone, to avoid a jury determination that he committed a capital offense and, at the same time, retain the right to insist on a jury determination of all additional facts essential for a death sentence. In light of jeopardy considerations barring the subsequent prosecution of a defendant for an offense greater than the one to which his guilty plea has already been accepted, the Supreme Court's holdings in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Blakely would, if anything, seem to dictate precisely the opposite result and actually preclude guilty pleas in capital cases unless they in-elude a simultaneous admission, or at least accession to judicial findings, of any additional facts qualifying the defendant for a death sentence. CJ. People v. Lopez, 148 P.3d 121 (2006).
As the majority appears to acknowledge, there can be no doubt whatsoever that the defendant in this case was advised and understood that he would not be permitted to waive his right to a jury trial and enter a guilty plea, without also waiving his right to jury sentencing. Although at times the majority appears to concede that a capital defendant has no right, either constitutional or statutory, to plead guilty to a capital offense, it nevertheless holds that conditioning this tactically advantageous maneuver on the defendant's willingness to waive his right to a jury determination of the final "elements" of a death sentence, just as he is required to do with regard to the elements of capital murder, in some way renders his waiver involuntary. Should the majority really intend that the exercise of a constitutional right is imper-missibly burdened by requiring its waiver as a condition of accepting a guilty plea, then plea agreements could not exist. I therefore believe the majority's rationale for reversing the defendant's death sentence and severing portions of the statute to be internally inconsistent and fatally flawed.
The second of my objections concerns the majority's refusal to apply our previous interpretations of Blakely in the capital sentencing context. As the majority acknowledges, we have categorized prior convictions as Blakety-exempt facts and have held the existence of a Blakely-exempt or compliant fact sufficient to justify an enhanced sentence, thereby opening the sentencing range to additional fact-finding by the sentencing authority, whether or not the defendant has waived his right to jury findings of additional facts. See DeHerrera v. People, 122 P.3d 992 (Colo.2005); Lopez v. People, 113 P.3d 713 (Colo.2005). It is undisputed that the defendant here had been previously convicted of a class 1 violent felony; that this fact provided sufficient aggravation to support a death sentence; and that the defendant was charged, *515among other things, with this specific aggravating factor.
Nevertheless, the majority declines to apply our Blakely jurisprudence to capital sentencing on the grounds that aggravating factors, although necessary, are insufficient for eligibility for a death sentence until they have been weighed against any mitigation offered by the defendant. Both Ring and Blakely, however, make clear that it is only findings of fact required for an enhanced sentence as to which a defendant is constitutionally entitled to a jury determination, not the evaluation whether, in the totality of the cireumstances, they are sufficiently aggravating to actually merit imposition of the enhanced sentence. We have expressly rejected virtually the identical proposition outside the capital sentencing context, instead characterizing the evaluation of all aggravating and mitigating evidence as something other than a finding of fact. See Lopes, 118 P.3d 7183. I fail to see any logical or principled basis for radically reinterpreting Blakely when applying it in the context of capital sentencing.
Third, I take exception to the majority's remedy of ordering that a new jury be em-panelled solely for the purpose of sentencing. While it may be fair to assume, from the statutory provision for empanelling a new sentencing jury following reversal of a death sentence, that the legislature would not have chosen to simply default to a life sentence in the event its provision for guilty pleas were struck down, it is abundantly clear that it expressly chose not to apply its provision for resentencing by a separate jury to guilty pleas. In fact, the severed provisions of the statute unmistakably evidence a legislative intent that capital defendants not be permitted to plead guilty at all, without forgoing whatever right they may have had to jury sentencing.
For reasons largely identified by the partially concurring and partially dissenting opinion of Justice Martinez, I consider the majority's reinterpretation of the unsevered portions of the statute to be so contrived as to amount to a judicial rewriting of the statute. Although I do not believe the legislature's provision for judicial sentencing following guilty pleas must be severed from the statute in the first place, I nevertheless be-leve that if that provision is severed, the statute cannot be construed to provide for a death sentence following a guilty plea. Because, however, defendants have no constitutional right to the acceptance of their guilty pleas, and by statute may enter a guilty plea only with the consent of both the prosecution and court, I believe the necessary effect of the majority's severance is to limit guilty pleas for capital offenses to those cases in which the prosecution is willing to abandon capital sentencing altogether.
Whether or not the remaining language of the statute could, as the majority holds, be understood in future cases to treat the reversal of a death sentence following a guilty plea as if it followed a jury conviction, I do not believe that remedy could apply here. It was an express condition of the defendant's plea, to which he agreed and upon which the state relied in consenting to the plea, that along with his other trial rights the defendant would waive any right he might have to jury sentencing. He was so advised, and he willingly and advisedly proceeded with the plea. If, as the majority holds, he has now successfully established that his waiver was ineffective, then the conditions upon which the guilty plea was predicated were not fulfilled, and the People must be given the opportunity to withdraw from it and subject the defendant to trial before the same jury of both his guilt or innocence and his sentence.
Finally, I object to the majority's treatment of this constitutional ground for reversal as falling within the seope of our statutorily-mandated review of the propriety of a death sentence. I object to this treatment both because I consider it thoroughly unconvincing and because I consider it a transparent attempt to cireumvent the legislature's time limitations for presenting a unitary appeal to this court in capital cases. §§ 16-12-208(3), -209, C.R.S. (2006). By imposing a separate, statutory obligation on this court to notice and resolve any constitutional issues concerning the sentencing statutes and procedures of this jurisdiction, whether or not they were timely raised (or raised at all for that matter), the majority not only relieves *516capital defendants of any obligation to bring such constitutional challenges to the attention of the state courts but apparently relieves the federal courts of any obligation to find cause and prejudice for a procedural default before independently considering such issues in petitions by state prisoners for federal writs of habeas corpus.
There can be no serious question that the appropriateness, or propriety, of a sentence refers in this jurisdiction to an exercise of discretion in choosing a particular sentence among legally acceptable options and according to legally acceptable procedures. I presume therefore that the majority attempts so mightily to squeeze its constitutional theory under the rubric of "propriety" to avoid addressing the nearly four-year hiatus between imposition of the defendant's death sentence and the final submission of appellate briefs on his behalf; as well as this court's repeated rejections of the defendant's waiver of his appellate rights, until he could finally be convinced to move for the withdrawal of his waiver and for permission to file a direct appeal, some three years out of time. Whatever may be the independent authority of the judiciary to determine the timing of appellate remedies in capital cases, the legislature clearly did not intend to abrogate the obligation of capital defendants to challenge the constitutionality of death sentences by subsuming such matters in an automatic review by this court.
Because I would also find no impropriety in the trial court's imposition of the defendant's sentence, I would affirm it. I therefore respectfully dissent.