concurring.
I concur in the principal opinion’s finding that section 558.018.5(3)1 applies to currently charged acts and is .facially constitutional. Nevertheless, I write separately because I disagree with the principal opinion’s analysis of Mr. Johnson’s claims that the statute is facially unconstitutional and unconstitutional as applied under the facts and circumstances of this case.
*516A statute is facially constitutional unless there is “no set of circumstances ... under which the statute may be constitutionally applied.” State v. Jeffrey, 400 S.W.3d 303, 308 (Mo. banc 2013). Section 558.018.5 provides three ways a defendant can be deemed a “predatory sexual offender.” Subdivision (3) of section 558.018.5, the subparagraph at issue in Mr. Johnson’s case, defines a “predatory sexual offender” as a person who “[h]as committed an act or acts against more than one victim which would constitute an offense or offenses listed in [section 558.018.4],2 whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.”
As reasoned by the principal opinion, section 558.018.5(3) applies to an act or acts listed in subsection 4 committed against more than one victim, charged or not, that is or are the basis for the current charges. But such language can also encompass prior acts, including prior offenses against more than one victim for which the defendant has been convicted. Prior convictions are not facts that must be submitted to the jury for purposes of sentencing enhancement. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Therefore, section 558.018.5(3)’s statutory scheme may be constitutionally applied when prior convictions involving multiple victims are used to establish the defendant’s status as a predatory sexual offender. It follows that, because section 558.018.5(3) can be constitutionally applied under such circumstances, the statute is facially constitutional.
The principal opinion, however, reasons section 558.018.5(3) is facially constitutional because, when based on current charges, the fact there was more than one victim “will necessarily also be submitted to the jury for determination.” That the issue of whether there was more than one victim could be and was, in this case, ultimately submitted to the jury does not render constitutional the procedure for establishing predatory sexual offender status pursuant to section 558.018.5(3).
Section 558.021.2 requires the circuit court to make the predatory sexual offender finding “prior to submission to the jury.” If a defendant is found to be a predatory sexual offender and is found guilty of committing one of the predicate crimes, the circuit court must enter an enhanced sentence of life imprisonment with the possibility of parole. Section 558.018.6. It follows that sections 558.018 and 558.021 require the circuit court to make findings regarding offenses addressed by subdivision (3) that would increase a defendant’s mandatory minimum sentence prior to submission of the case to the jury. Such procedure violates the Sixth Amendment of the United States Constitution, as found by the Supreme Court in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
In Alleyne, the Supreme Court explained that, pursuant to the Sixth Amendment’s right to a jury trial, “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reason*517able doubt.” Id. at 2155. It then reasoned that “[mjandatory minimum sentences increase the penalty for a crime”'; therefore, “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id.
Because the fact there was “an act or acts against more than one victim” increases the mandatory minimum under section 558.018.5(3), that fact must be submitted to the jury. But section 558.018 requires this finding be made by the circuit court prior to submitting the case to the jury. Consequently, any finding by the circuit court that the defendant is a predatory sexual offender pursuant to section 558.018.5(3) violates the defendant’s Sixth Amendment right to a jury trial by requiring such findings to be made by the judge rather than the jury.
The principal opinion attempts to circumvent this problem by finding that whether there was more than one victim is a fact that will necessarily be submitted to the jury. But the plain language of section 558.018.2 requires the finding of predatory sexual offender status pursuant to subsection 5 be made by the trial court prior to the case being submitted to the jury. That the jury may later find the defendant guilty of committing the same acts the circuit court found prior to submission may be relevant to whether the defendant was prejudiced, but it does not render the statute constitutional.
Moreover, a person can be found to be a predatory sexual offender for “an act or acts [committed] against more than' one victim ... whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.” Section 558.018.5(3). Such language allows the circuit court to find the defendant committed an act or acts involving more than one victim that may not be a charged-offense. The statement, therefore, allows the circuit court to find a defendant committed offenses against multiple victims the jury does not subsequently find the defendant guilty of committing.
The principal opinion further excuses the circuit court’s disregard for the statutory procedure mandated -by section 558.021.2. This principal opinion’s unprecedented blessing of the circuit court’s violation of a statutory mandate will only invite and encourage courts to violate the procedural mandates of this and other statutes to correct perceived errors in legislative enactments. It is not the place of the courts to rewrite legislation to correct errors made by the legislature. State ex rel. Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 327 (Mo. banc 2016).
I, therefore, would find section 558.018.5(3) unconstitutional as applied when it is used to classify a defendant as a predatory sexual offender based on acts committed against multiple victims for which the defendant has not been previously convicted, as occurred in this case. Nevertheless, under the facts and circumstances of this case, I would conclude that the Alleyne violation does not require reversal of Mr. Johnson’s convictions.
As the Supreme Court has recognized, “the commission of a constitutional error at trial alone .does not entitle a defendant to automatic reversal.” Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). Rather, “most constitutional errors can be harmless.” Id. (internal quotation omitted). In fact, the Supreme Court has held “[fjailure to submit a sentencing .factor to the jury, like failure to submit an element to the jury, is not structural error” and, therefore, is subject to harmless-error review. Id. at 222, 126 S.Ct. 2546. Likewise, the federal circuit courts addressing the issue have concluded “Alleyne did not recognize or create a structural error requiring per se reversal” and have reviewed such matters *518for harmless error. United States v. McCray, 563 Fed.Appx. 706, 709 (11th Cir. 2014); see also United States v. Mann, 786 F.3d 1244, 1251-62 (10th Cir. 2015); United States v. Lewis, 802 F.3d 449, 454 (3d Cir. 2016); United States v. Pizarro, 772 F.3d 284, 297-98 (1st Cir. 2014); United States v. Carr, 761 F.3d 1068, 1082 (9th Cir. 2014); United States v. Long, 748 F.3d 322, 329 (7th Cir. 2014); United States v. Mack, 729 F.3d 594, 608 (6th Cir. 2013); United States v. Lara-Ruiz, 721 F.3d 554, 557-58 (8th Cir. 2013); United States v. Baylor, 537 Fed.Appx. 149, 164 (4th Cir. 2013). Alleyne violations, therefore, do not require automatic reversal if such errors prove to be harmless.
But as the principal opinion explains, Mr. Johnson failed to preserve his challenge to the constitutional validity of section 558.018.5(3) by failing to raise it before the trial court. State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015). Accordingly, this Court’s review is limited to plain error. Id. “Plain error is found when .the alleged error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice occurred.” Id. (internal quotation omitted).
Here, Mr. Johnson cannot establish manifest injustice or a miscarriage of justice resulted from the Alleyne violation. The jury found, beyond a reasonable doubt, Mr. Johnson committed the offenses of statutory rape in the first dégree and statutory sodomy in the first degree against D.P. The jury also found, beyond a reasonable doubt Mr. Johnson committed the offenses of statutory rape in the first degree and' statutory sodomy in the first degree against R.J. The jury, therefore, determined, beyond a reasonable doubt, Mr. Johnson committed acts against more than one victim that constitute offenses referenced in section 558.018.4. It follows that, despite the constitutionally defective procedures set out under section 558.018.5(3), the facts that increased Mr. Johnson’s, mandatory minimum sentence— that he committed acts against more than one victim—were submitted to and found by the jury. Accordingly, I would conclude no plain error occurred in this case and would affirm Mr. Johnson’s convictions.
. All statutory citations are to RSMo Supp. 2013.
. Section 558.018.4 provides:
The court shall sentence a person to an extended term of imprisonment as provided for in this section if it finds the defendant is a predatory sexual offender and has been found guilty of committing or attempting to commit any of the offenses listed in subsection 1 of this section or committing child molestation in the first degree when classified as a class B felony or sexual abuse when classified as a class B felony to an extended term of imprisonment as provided for in this section if it finds defendant is a predatory sexual offender.
Section 558.018.4, therefore, encompasses all offenses listed in subsection 1 as well as child molestation and child abuse when classified as class B felonies.