dissenting.
I dissent. The trial judge was not authorized to ignore the procedural requirements of sections 558.018 and 558.021,1 and he plainly erred by doing so. Had the trial judge adhered to these procedural requirements, he would not have been able to enhance the defendant’s sentence because to do so would have violated the defendant’s Sixth Amendment rights. In holding otherwise, the majority has done more than merely “interpret” the statute in a constitutional manner;- it has added nonexistent provisions' and ignored explicit statutory "requirements. While the legislature could and should change the statute to make it comport with the Sixth Amendment, courts do not have authority to engage in what this Court previously has criticized, as “a judicial emasculation of the legislative direction” by simply substituting its own statutory provision for that adopted by the legislature. State v. Teer, 275 S.W.Sd 258, 262 (Mo. banc 2009).
Further, the majority opinion errs in holding that subdivision 558.018.5(3) unambiguously permits a trial judge to base the predatory sexual offender determination on the very charges being tried in the case before the trial judge. That is not what the statute provides, and such a reading is not consistent with either the purpose or the language of the statute. Further, permitting the trial judge to base the determination on facts found by the trial judge rath*519er than the jury contravenes the Sixth Amendment.
For these reasons, Mr. Johnson’s sentence should be vacated.
J. THE FAILURE TO FOLLOW THE PROCEDURES REQUIRED BY SECTIONS 558.018, AND 558.021 PRECLUDES A PREDATORY SEXUAL OFFENDER FINDING
Mr. Johnson’s sentence must be vacated because the trial judge committed plain error and violated section 558.021.2, which provides “the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.” None of these mandatory requirements were complied with in this case. While section 558.021.2 requires the State to present any evidence outside the jury’s hearing, the State did not. While section 558.021.2 requires the trial judge to make the evidentiary findings prior to submission, he did not. While the trial judge’s predatory sexual offender finding must be based on the evidence presented outside the jury’s presence, it was not. While the trial judge’s finding is not permitted to be based on the evidence presented to the jury, it was.
Indeed, the trial judge turned the statute oh its head; he required no facts to be separately established outside the jury’s hearing, made the evidentiary findings after rather than before submission, and specifically stated his determination'was “based on the evidence that was presented at trial, -the testimony that was presented by the three victims and, of course, by the verdicts that were returned by the jury in this number of counts.” In short, the trial judge held that if the evidence at trial was good enough for the jury, to find Mr. Johnson guilty, it was good enough for the trial judge to find him a predatory sexual offender under section 558.018, even if the trial judge had to violate the procedures mandated by the statute to do so. Our legislature’s requirements cannot and should not be so easily disregarded.
While the majority holds the failure to comply with these statutory procedural requirements was just á minor and nonprejudicial variation from the required procedure and certainly does not amount to plain error, it is wrong. Even when objection is not timely made, to ensure accuracy in the outcome of the trial, '“appellate courts have the discretion to nonetheless review for plain error if manifest injustice would otherwise result.” Deck v. State, 68 S.W.Sd 418, 427-28 (Mo. banc 2002); see Rule 30.20. Plain error is found “if the error was outcome determinative.” IdJ at 427. “Manifest injustice is dependent upon the facts and circumstances of the particular case.” State v. Zindel, 918 S.W.2d 239, 241 (Mo. banc 1996).
The majority concedes the trial judge’s failure to comply with the procedural requirements of section 558.021.2 was “evident, obvious, and clear.” Op. at 513. But the majority is wrong in refusing to recognize the manifest injustice that resulted from this error. Id. at 515. Because Mr. Johnson was found to be a predatory sexual offender, he was sentenced to life in prison with his first parole eligibility at 25 years. See § 558.018.6. (“A person found to be a predatory sexual offender shall be imprisoned for life with eligibility for parole ... ”). Of course, that parole could be denied. i
By contrast, without the predatory sexual offender .finding >Mr. Johnson would have been entitled to unconditional release after serving 25 years even if he received the maximum sentence. §§ 558.011, 558.018.6. “Being sentenced to a punishment greáter than the maximum sentence for an offense constitutes plain error resulting in manifest injustice.” State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). This principle applies when a trial judge *520fails to comply with the procedural requirements of section 558.021.2 when designating a defendant as a status offender warranting a greater sentence. See State v. Collins, 328 S.W.Sd 705, 709-10 (Mo. banc 2011); Severe, 307 S.W.Sd at 644-45; Teer, 275 S.W.Sd at 260-62; State v. Emery, 95 S.W.3d 98, 101-02 (Mo. banc 2003).
Here, it was the trial judge’s violation of section 558.021.2 that allowed him to designate Mr. Johnson as a predatory sexual offender and enhance his sentence. Under section 558.021.2, the State was permitted to present its evidence prior to submission to the jury, and it was then the trial judge was required to make a finding. In a conference among the trial judge and counsel prior to submission to the jury, the State asked the trial judge to designate Mr. Johnson as a predatory sexual offender, and the trial judge determined subdivision 558.018.5(3) did not apply to Mr. Johnson. At that point, the trial judge had heard the evidence presented at trial and the testimony presented by the three victims, which he determined was not enough to find Mr. Johnson was a predatory sexual offender.
Yet, after the jury returned its verdicts, the State asked the trial judge to reconsider applying subdivision 558.018.5(3), and the trial judge stated he had “changed his mind” and found Mr. Johnson was a predatory sexual offender. He stated his determination was “based on the evidence that was presented at trial, the testimony that was presented by the three victims and, of course, by the verdicts that were returned by the jury in this number of counts.”
Section 558.021.2 makes clear the trial judge’s predatory sexual offender determination must be based on evidence presented outside the jury’s presence and the legislature’s inclusion of that requirement is purposeful. The word “shall” makes the procedure mandatory, not discretionary. Teer, 275 S.W.3d at 261. Why require the determination to be made outside the jury’s presence based on evidence presented to the trial judge when the trial judge has just heard all of the evidence presented to the jury? Because the predatory sexual offender determination is to be based on evidence other than that being submitted to the jury.
Additionally, the statute sets out only a single exceptional circumstance in which the trial judge is permitted to make the determination after submission based on the evidence at trial. This exception is not when the trial judge is deciding whether the defendant is a predatory sexual offender under subdivision 558.018.5(3), the situation presented in this case. Rather, the exception applies only to prove a defendant is a “dangerous offender” under subdivision 558.016.4(1); the statute provides only that issue “may be established by judicial notice of prior testimony or before the jury.” § 558.021.2.
As this Court long has recognized, “the express mention of one thing implies the exclusion of another.” Yellow Freight Sys. v. Mayor’s Comm’n on Human Rights of City of Springfield, 791 S.W.2d 382, 387 (Mo. banc 1990). Had the legislature intended to allow the trial judge to simply base the determination on the evidence presented at trial, it would have included subdivision 558.018.5(3) in the exception set out in section 558.021.2. It did not. The predatory sexual offender determination cannot be based on the evidence presented to the jury on the current charges.
As this Court stated in Teer, “[i]f the courts continue to indulge the laxity which has characterized so many cases of extended term sentencing, a judicial emasculation of the legislative direction will be the accepted procedural norm [citation omitted].” 275 S.W.Sd at 262 (holding the trial judge’s violation of section 558.021,2 required reversal of the defendant’s sen*521tence). The majority opinion constitutes just such a judicial emasculation of the legislative directive. It does so first by allowing the trial judge to reshape the statutory requirements of sections 558.018 and 558.021 so they fit Mr. Johnson’s case, even though by doing so, the trial judge improperly exercised legislative powers delegated exclusively to the legislature by article. II, section 1 of the Missouri Constitution. See also Severe, 307 S.W.3d at 645. “Fixing of the punishment for crime is a legislative and not a judicial function.” State v. Hart, 404 S.W.3d 232, 246 (Mo. banc 20IS) (citation omitted). If a statutory penalty cannot be applied to the facts of the case without violating the constitution, “the statute is void” with respect to the particular case. Id.
Further, as this Court held in Severe, 307 S.W.3d at 645, the State is not permitted “‘two bites at the apple’ when the statute allows only one bite,” and this “Court cannot make an exception to the statutory requirement.” Under section 558.021.2, the State was not permitted to again ask the trial judge to consider applying subdivision 558.018.5(3) after the jury had returned its verdicts, and the trial judge was not permitted to consider the jury verdicts as a basis for his determination that Mr. Johnson, was a predatory sexual offender. Such verdicts could only exist after the case had been submitted to the jury and could not have been presented by the State prior to submission and outside ..the jury’s presence. The statute does not allow the State to present new evidence after submission, and this Court cannot create an exception to that statutory requirement allowing the trial judge to make the finding based on the -jury verdicts. Mr. Johnson was improperly sentenced to a term greater than what he could have received had the trial judge not violated section 558.021.2, and that violation resulted in a manifest injustice. See Severe, 307 S.W.3d at 642, 644-45.
Allowing the trial judge to designate Mr. Johnson as a predatory sexual offender also violated his Sixth Amendment rights. As the majority recognizes, Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2161, 186 L.Ed.2d 814 (2013), held that under the Sixth Amendment, “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Id. at 2155. This includes any fact increasing the mandatory minimum of a' sentence. Id. The Supreme Court reasoned: “[w]hen a finding of fact alters the legally prescribed punishment so as -to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” Id. at 2162. Just last year, the Supreme Court applied these principles and refused a state’s argument that because a similar state statute made “the additional requirement that a judge also find an aggravator” it “only provide[d] the defendant additional protection.” Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 622, 193 L.Ed.2d 504 (2016). Hurst held the state statute, which required “findings by the court that such person shall be punished by death,” was unconstitutional even though the jury also made the findings allowing the trial judge to enhance the sentence.- Id., citing, Fla. Stat. § 775.082(1). This was because the statute “allow[ed] a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that- [was] necessary for imposition of the death penalty.” Id. at 62k.
Applying these principles here, the trial judge’s violation of section 558.021.2 was determinative of Mr. Johnson being sentenced as a predatory sexual offender. Section 558.021.2 expressly requires the trial judge in a jury trial to base its finding that the defendant is a predatory sexual offender on facts “pleaded, established and found prior to' submission to the jury outside of *522its hearing.” Had the trial judge followed these procedural requirements and determined subdivision 558.018.5(3) applied, he could not have enhanced Mr. Johnson’s sentence because under the requirements of these statutes, it is the trial judge alone that makes the factual finding necessary to enhance a defendant’s sentence and before submission of the case to the jury. This violates.the Sixth Amendment because it unequivocally would permit what Alleyne prohibits—using a trial judge’s findings to increase the mandatory minimum.
The majority opinion relies on its assertion that “[rjequiring a trial court to also find the necessary facts is a layer of protection above and beyond that required by Alleyne.”2 This may be true, but the statute cannot require the trial judge to make that finding alone and independent of the jury. Missouri’s legislature did not have the benefit of the Supreme Court’s decision in Alleyne when it adopted these provisions, but as the parties recognize, the two are incompatible .to the extent the statute permits an enhancement to be based on offenses the defendant is found by the trial judge to have committed beyond a. reasonable doubt but of which defendant has not been convicted by the jury.3
The constitutional concerns raised by these statutory provisions, in light of Al-leyne, are self-evident. The majority’s solution would be to allow the trial judge to ignore section 558.021,2 and permit ,his findings to be made after the verdict, rather than before the verdict, and based on the jury’s findings even though the statute on its face requires the ..findings to be those of the judge. The majority’s claim to the contrary notwithstanding, this is not simply a case of applying the adage that “[i]f a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted.” State v. Mixon, 391 S.W.3d 881, 883 (Mo. banc 2012) (citations omitted). Rather, the majority is rewriting the statute by adding provisions contrary to the very requirements of the statute itself.' Such judicial rewriting of the statute is itself unconstitutional as a violation of the separation of powers doctrine. Hart, 404 S.W.3d at 246-47.
Prejudice exists under the plain error rule where the error complained of impacts the rights of a defendant so substantially that a manifest injustice or a miscarriage of justice will result if the error is not corrected. State v. Baumruk, 280 S.W.3d 600, 616 (Mo. banc 2009). Had the trial judge properly followed the procedure required by section 558.021.2, he could not have found subdivision 558.018.5(3) applied to Mr. Johnson. For the reasons noted, properly following the procedure required by section 558.021.2 would be unconstitutional. See City of Charleston ex rel. Brady v. McCutcheon, 360 Mo. 157, 227 S.W.2d 736, 739 (Mo. banc 1950). Accordingly, the trial judge’s failure to follow section 558.021.2 was determinative of whether Mr. Johnson was or was not a predatory sexual offender and amounted to plain error.
*523 II. SECTION 558.018.5 DOES NOT PERMIT CURRENT CHARGES AS THE BASIS OF THE PREDATORY SEXUAL OFFENDER DESIGNATION
Even were the majority permitted to rewrite the statute’s procedural provisions and allow the predatory offender determination to be made after trial and based on the jury’s verdict—sóm'ething expressly prohibited—reversal would be required because the statute, does not authorize use of the present charges as a basis to make the predatory offender determination. Yet. that is what the trial judge admittedly did. The State bases its argument on the fact that, unlike subdivisions (1) and (2) of section 558.018.5, subdivision (3) does not use the term “previously” in providing what charges can form the basis of a predatory sexual offender finding under that section. It follows, the State argues, that if the State is not limited to previous conduct, then this mfeans it ean base the predatory sexual offender' determination oh the very charges being submitted to thfe jury.
The “then” of the State’s reasoning, however, does not follow from its premise. In effect, the State is arguing subdivision (3) of section 558.018;5 provides that an act can form the basis of finding a defendant a predatory sexual offender whether or not defendant was charged with committing that act or acts in the current charges. But that is not what the subdivision provides. To the contrary, it provides the predator determination is to be based on “whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.” § 558.018.5(3) (emphasis added). This begs the question—an offense additional to what? The language “whether or not the defendant was charged with an additional offense” only can mean additional to the currently charged offense or offenses. In other words, the purpose of the statute is to allow the trial judge to consider conduct in addition to that charged in the current case, whether or not that additional conduct itself resulted . in other charges. But the actual offenses charged cannot be “additional” to themselves, and so they, - or evidence supporting them, cannot form the basis of. the enhancement.
Interpreting subdivision 558.018.5(3) as applying only to additional charged and uncharged conduct, whenever committed, that the trial judge prior to submission finds to have occurred beyond a reasonable doubt is the only interpretation true to the subdivision’s statutory purpose. As the majority correctly notes, “This Court’s primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.” Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.Sd 670, 672 (Mo. banc 2009); Op. at 510.
Subdivision 558.018.5(3), in conjunction with subdivision 658.018.5(2), attempts to increase the minimum punishment for those defendants who are repeatedly bad actors, even if they have not come to trial or been charged for all of their bad acts. Though such an approach has serious constitutional flaws in light of Alleyne, the legislature could not have been aware of these issues at the time of the section’s enactment.
The majority’s interpretation is equally incompatible with the legislature’s evident purpose in enacting the predatory sexual offender provisions. The majority’s holding means, the enhanced mandatory minimum •applies in every case with more than one victim, as it requires the trial judge to determine prior to submission whether the evidence shows beyond a reasonable doubt the defendant committed a listed act against more than one victim. If the trial judge did not so find, the trial judge would not-find the defendant to be a predatory sexual offender and would have to refuse *524to submit the charges at all and instead enter a judgment of acquittal on them. This is because the defendant could not be convicted of an act based on evidence insufficient to support such a finding. If the trial judge did find the defendant had committed the charged acts beyond a reasonable doubt, then the charges would be submitted to the jury. For each charge submitted, the defendant would either be acquitted and so subject to no sentence or be convicted and automatically subject to the enhanced mandatory minimum.
The one thing that will never happen is for the defendant to receive the sentence actually prescribed by the statute based on the jury’s verdict. This cannot be what the legislature intended. Had the legislature wanted every offender who commits charged crimes against multiple victims and against whom a submissible case was made automatically to receive an enhanced mandatory minimum, it would have so provided. It did not. It provided a minimum 10-year sentence unless the trial judge found “additional” acts occurred beyond a reasonable doubt; only then would the offender have to receive at least the enhanced mandatory minimum sentence. This requirement of “additional” acts would be nonsensical if every offender would be subject to subdivision (3)’s enhanced penalty based on the already submitted acts.
Ill CONCLUSION
For the foregoing reasons, I would vacate the trial judge’s determination that Mr. Johnson was a predatory sexual offender and remand for resentencing.
. Statutory citations are to RSMo 2013 unless otherwise stated.
. See Hurst, 136 S.Ct. at 622 (finding the argument that the statute "only provides the defendant additional protection” unpersuasive).
. For example, subdivision 558.018.5(3) permits the mandatory minimum sentence for a crime to be enhanced if the defendant "[h]as committed an act or acts against more than one victim which would constitute an offense or offenses listed in subsection 4 of this section, whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.” Id. (emphasis added). This is what Alleyne prohibits. The defendant has a right to have a jury determine any fact that increases the defendant’s maximum or minimum punishment. Alleyne, 133 S.Ct. at 2155.