concurring in part and dissenting in part. I concur in the syllabus law announced by the majority, and agree that appellant’s conviction should be affirmed. I cannot agree, however, .that the trial court erred in considering evidence relevant to the nature and circumstances of the crime involved in that such a consideration was required by R.C. 2929.03 (D)(1) and (3). On this issue, I would concur in the analysis given by Justice Douglas in Part II of his concurrence in part, and would thus affirm appellant’s sentence of death as well.
*374As to the issue of resentencing, where the trial was before a jury, my position was fully stated in my dissenting opinion in State v. Penix (1987), 32 Ohio St. 3d 369, 373, 513 N.E. 2d 744, 748. My position remains the same as it would relate to a jury trial. However, in any event, as correctly stated by the majority herein, the law announced in Penix has no application to cases involving trial- errors during capital sentencing hearings before a three-judge panel. The sole concern of the majority in Penix was that Ohio’s death penalty statute did not expressly provide for either re-impaneling the original sentencing jury or impaneling a new jury upon remand from an appellate court, coupled with the realization of the practical difficulties inherent in such an undertaking. Such practical concerns are obviously not present in trials held before a three-judge panel.
As noted in my dissenting opinion in Penix, supra, at 376, 513 N.E. 2d at 750-751, R.C. 2929.06 applies in only three instances, and a death sentence vacated due to trial errors occurring during sentencing is not one of them. The argument that the syllabus law announced today is unsupportable because our death penalty statute does not provide for such procedure thus misses the point. The statute does not provide for any procedure. Therefore, since a convicted defendant whose sentence has been reversed must be resentenced, R.C. 2953.07, this court has no alternative but to fashion that resentencing procedure which is most consistent with existing statutory intent.
When any sentence is reversed on appeal and remanded to the sentencing court, the Constitution permits the state to thereafter seek whatever sentence could have been imposed originally, including, in capital cases, the death penalty. Bullington v. Missouri (1981), 451 U.S. 430, 442; Skipper v. South Carolina (1986), 476 U.S. 1, 8; Poland v. Arizona (1986), 476 U.S. 147. Ohio’s Criminal Code, Title 29, does not limit this practice in cases such as that involved herein. In R.C. 2929.06, the legislature is presumed to have included all the situations in which the death penalty may not be sought on remand. See Penix, supra, at 376, 513 N.E. 2d at 751,(doctrine of inclusio unius est exclusio aiterius applied) (Holmes, J., dissenting); State, ex rel. Hall, v. Bd. of Trustees (1948), 149 Ohio St. 367, 37 O.O. 48, 78 N.E. 2d 719. Thus, where R.C. 2929.06 does not apply, the death penalty may constitutionally be sought along with the other statutory penalties available.
Nor does the specific reference to “the panel of three judges” (emphasis added) in R.C. 2929.03 limit the range of penalties on resentencing. First, and most obvious, R.C. 2929.03 is not a re-sentencing statute. The only capital resentencing statute, R.C. 2929.06, which is inapplicable here, does not make a distinction between a jury and a three-judge panel for the simple reason that only “the court” has the authority to impose, or reimpose, a criminal sentence. Thus, it is “the court” which resentences a defendant under R.C. 2929.06, whether “the court” is composed of one judge in a jury trial or the three-judge panel.
Second, the legislature was apparently not concerned about the possibility that the composition or the mental attitude of the three-judge panel may have changed on remand, as R.C. 2929.06 does not require the three-judge panel to make the resentencing decision thereunder. Unless unable to do so, the judge who presided at a criminal trial must of course also preside at post-conviction proceedings, including sentencing. Crim. R. 25(B)14; Beatty v. Alston *375(1975), 43 Ohio St. 2d 126, 127, 72 O.O. 2d 70, 71, 330 N.E. 2d 921, 923.
Where a sentencing judge is unable to resentence an offender upon remand of the case from an appellate court, Crim. R. 25(B) prescribes the procedure to be followed for substituting another judge to serve on the sentencing court. R.C. 2929.06 merely states that “the trial court that sentenced the offender shall conduct a hearing to resentence the offender” (emphasis added), without limiting the remedial provisions of Crim. R. 25(B). Similarly, in cases in which R.C. 2929.06 does not apply, the sentencing court should conduct a hearing on remand to resentence the offender to whatever sentence may lawfully be imposed, with any vacancy on the court due to disability filled pursuant to Crim. R. 25(B).
The syllabus law announced today necessarily fills the void left by the legislature, in the manner most consistent with the existing legislative scheme, and with it I concur. For reasons previously stated, however, I must dissent from the judgment of the majority and would affirm appellant’s conviction and sentence.
Crim. R. 25 provides, in pertinent part:
*375“Rule 25. Disability of a Judge
“(B) After verdict or finding of guilt. If for any reason the judge before whom the defendant had been tried is unable to perform the duties of the court after a verdict or finding of guilt, another judge designated by the administrative judge, or, in the case of a single-judge division, by the Chief Justice of the Supreme Court of Ohio, may perform those duties. If such other judge is satisfied that he cannot perform those duties because he did not preside at the trial, he may in his discretion grant a new trial.”