concurring in part, dissenting in part:
¶ 25 I concur in the resentencing determination announced in the Supplemental Opinion. I respectfully dissent, however, from the notion that the denial of trial by jury on sentence enhancement factors in violation of the Sixth Amendment is subject to harmless error analysis by a reviewing court on direct appeal.
¶26 The Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a non-capital case, concluded that a Sixth Amendment violation occurs when the trial judge alone determines that sentencing enhancement factors exist, thereby increasing the sentence beyond the maximum prescribed by statute. The Court reasoned that such factors amount to “the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict” and that enhancement factors under the “functional equivalency” standard must be presented to and determined by the jury in order to satisfy the mandate of the Sixth Amendment. Id. at 490.
¶ 27 Moreover, a concurring opinion in Apprendi reminds us forcefully that the Sixth Amendment “means what it says” — that the right to trial by an impartial jury “has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.” Id. at 499, 120 S.Ct. 2348 (Scalia, J.) (emphasis in original).
¶ 28 Two years after Apprendi, the Court extended the rule to capital eases, holding, under Arizona’s sentencing statutes, that enhancement facts authorizing the death penalty must be presented to and determined by the jury. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II). Ring II expressly overruled Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), in which, twelve years earlier, the Court upheld Arizona’s judge sentencing scheme in capital cases even though the procedure then in use called for the trial judge, not the jury, to find the aggravating facts that could result in the death sentence. The Ring II Court observed emphatically that Walton and Apprendi were “irreconcilable,” that the Court’s current Sixth Amendment jurisprudence “cannot be home to both,” and that because Arizona’s statutory aggravating factors operated as “the functional equivalent of an element of a greater offense,” the Sixth Amendment, consistent with Apprendi, required that they be found by the jury. 536 U.S. at 609, 122 S.Ct. 2428.
¶ 29 The announcement of Apprendi and Ring II necessarily signaled the inevitable arrival of related issues. For example, would Ring II apply retroactively to cases in which the direct appeal process had become final?; and would sentence enhancement findings made by the trial judge in violation of the Sixth Amendment be subject to analysis for harmless error?
*367¶ 30 Both questions have now been raised and have provoked the familiar debate between substance and procedure, as well as the difference between structural error and trial error. Matters of substance are generally subject to retroactive application and are more likely to escape harmless error analysis, while matters of procedure are normally not applied retroactively and are generally subject to harmless error analysis. Apprendi and Ring II prompt the question addressed in the Supplemental Opinion in the instant case and in this dissent: whether denial of the Sixth Amendment right to trial by jury may be analyzed as procedural and thus treated as harmless error?
¶31 Based primarily on the rationale set forth in Apprendi and Ring II, I have posited that harmless error analysis cannot legitimately be applied to jury denial, or at least that it should not be so applied, for several reasons: (a) because the constitutional sanctity of trial by jury preserves a right “implicit in the concept of ordered liberty,” Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); (b) because fact determinations involving statutory enhancement factors form the sole basis for the imposition of enhanced punishment, including capital punishment; and (c) because a sentence enhancement factor allowing sentencing beyond the maximum has been substantively defined as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348.
¶ 32 Given this rationale, and because both Apprendi and Ring II are now law, it has seemed to me that when the right to jury trial has been abridged in these circumstances, there can be no legitimate foundation on which to perform harmless error analysis of the evidentiary weight to be accorded aggravating factors that resulted in an enhanced sentence, including, of course, a capital sentence.
¶ 33 But in the aftermath of Apprendi and Ring II and their progeny, the Supreme Court decided Schriro v. Summerlin, — U.S.-, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Summerlin holds that Ring II shall not be applied retroactively to cases in which the direct appeal process is complete and the final mandate of the court has issued.4 The Summerlin Court explicitly defines the rule announced in Ring II as a “new procedural rule,” not a rule of substance. Id. at-, 124 S.Ct. at 2526. Summerlin further states the jury guarantee does not rise to the level of a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. ” Id. at -, 124 S.Ct. at 2525; see also Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). I believe the “new procedural rule” holding in Summerlin is at odds with the substantive “functional equivalency” standard espoused in Apprendi and Ring II.
¶34 Nevertheless, now that the Sixth Amendment right to jury trial has been defined by Summerlin as a “new procedural rule” limited to prospective application, it would appear my view that erroneous jury denial is substantive and thus not subject to harmless error analysis, is on shaky ground. The shakiness is even more apparent in view of the recent Supreme Court denial of certiorari in Arizona v. Sansing, 206 Ariz. 232, 77 P.3d 30 (2003), cert. denied, — U.S. -, 124 S.Ct. 2906 (2004), in which this court, the dissent notwithstanding, affirmed the judge-imposed death penalty on the basis that error in denying the defendant’s right to trial by jury, was harmless.
¶ 35 Therefore, because of Summerlin and Sansing, together with the added weight of the Supremacy Clause, I am constrained to think the view I have advanced — that denial of the Sixth Amendment right to trial by jury is not susceptible to harmless error analysis — is, at best, on life support with little hope of survival. I take some comfort, perhaps undeserved, in the fact that Summerlin, as well as Apprendi and Ring II, were not decided unanimously and that I am thus not entirely alone with my opinion that the right to jury trial under the Sixth Amendment is *368significantly more than a new procedural rule.
¶36 Summerlin dealt with retroactivity, not harmless error. Accordingly, the door to argument against harmless error analysis remains ajar, albeit ever so slightly. I therefore register my dissent on the issue, though probably for the last time.
¶ 37 On remand for resentencing, a jury will consider all aggravating and mitigating factors in Armstrong’s case. I concur in that result.
. The Supreme Court’s decision in Summerlin is fully consistent with this court's unanimous opinion in State v. Towery, 204 Ariz. 386, 64 P.3d 828, cert. denied, — U.S. -, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003).