concurring in part and dissenting in part. I am alarmed at what the majority opinion does to the Ohio death penalty statute. The majority opinion is flawed in its statutory interpretation, its reasoning and its conclusion and, therefore, I must vigorously dissent. In its zeal to reach its ultimate conclusion, the majority opinion appears to be, “[e]ven in the face of overwhelming evidence of the defendant’s guilt, * * * more concerned with procedural niceties and protecting the rights of the. criminals than with protecting society from the criminals. * * *” State v. Thompson (1987), 33 Ohio St. 3d 1, 18-19, 514 N.E. 2d 407, 424 (Locher, J., dissenting). It could be said that this decision expresses “* * * a lack of concern for the victims of the crimes involved. * * *” Id. at 18, 514 N.E. 2d at 424.
While the majority opinion has other flaws, I limit myself to the discussion of only three.
I
In its discussion, the majority opinion misinterprets, or at least confuses, the strictures of R.C. 2929.022(A). Why it would be necessary to admit evidence pertaining to a prior purposeful killing “* * * to prove the offense of having a weapon while under a disability” escapes me. In addition to other charges, the defendant herein was charged with having a weapon while under disability in violation of R.C. 2923.13(A)(2). The elements of that offense are (1) knowingly acquire, have, carry or use a (2) firearm (3) having been previously convicted of any felony of violence. Either a defendant, so charged as here, can stipulate to the previous conviction or the record of the previous conviction can be produced. There would be no necessity to examine in any detail the facts of the previous felony of violence in order to establish the disability charge. For the *376majority opinion to suggest that such evidence would be admissible at the guilt stage of a capital case writes R.C. 2929.022 out of the law. Pursuant to that section, a defendant has an absolute right to elect that consideration of an R.C. 2929.04(A)(5) specification be deferred until the penalty stage.
II
Of greater concern is the blurring, by the majority, beyond recognition of the difference between “aggravating specifications” and “aggravating circumstances.” While the specifications listed in R.C. 2929.04(A)(1) through (8) may be “aggravating circumstances,” they are not the only aggravating circumstances of a particular capital crime.
In faulting the three-judge panel, the majority finds that “* * * the items enumerated as (1), (2), (3), and (5) in the trial court’s opinion shall not be considered as aggravating circumstances in the weighing process.” In arriving at this conclusion, the majority cites Proffitt v. Florida (1976), 428 U.S. 242, 258, which, of course, does not at all stand for the proposition for which it is cited.
To arrive at its remarkable conclusion, the majority overlooks (or conveniently forgets) parts of the specific language of R.C. 2929.03(D)(1) and especially (D)(3). In pertinent part, (D)(1) says that “* * * [t]he court, and the trial jury if the offender was tried by a, jury, shall consider * * * any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing * * * [and] shall hear testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing, * * * that are relevant to the penalty that should be imposed on the offender. * * *” (Emphasis added.) From the foregoing, it is clear that for weighing purposes the “aggravating circumstances” are not limited to the “aggravating specifications” listed in R.C. 2929.04(A)(1) through (8). This is the only conclusion that can be reached when the “weighing” section (for a three-judge panel), R.C. 2929.03(D)(3), is considered. When read in conjunction with the language from R.C. 2929.03(D)(1), as set forth above, R.C. 2929.03(D)(5) makes it clear that the “aggravating circumstances” to be weighed against the mitigating factors include “* * * the relevant evidence raised at trial, the testimony, [and] other evidence * * *” which would include, of course, consideration of the nature and circumstances of the aggravating circumstances as required by R.C. 2929.03(D)(1).
Given the foregoing, can it reasonably be said, as the majority opinion does, that the manner in which the defendant purchased the gun and ammunition and the fact that the victim was shot at close range, execution style, were not factors to be considered by the three-judge panel as “nature and circumstances” of the aggravating circumstances of the crime? I think not!
Given a literal reading, the majority opinion will, henceforth, stand (and be regularly cited to us) for the proposition that a trial jury, a trial court, a three-judge panel, a court of appeals panel and this court may consider only the specific statutory specifications listed in R.C. 2929.04(A) in the weighing process without considering the nature and circumstances surrounding the specifications. To me, the proposition is ludicrous. From now on will there ever be another case where any bare-bone specification of R.C. 2929.04(A) will not be outweighed by mitigation, if any mitigation at all is presented?
Today, the majority contorts be*377yond belief the purpose of R.C. 2929.04(A). Its real purpose is to ensure that no person will be charged with or convicted of capital murder unless one of the enumerated specifications exists. It is not the purpose of this section to make these specifications the exclusive criteria in the weighing process. By excluding from the weighing process any “aggravating circumstances” of the crime other than a specific specification listed in R.C. 2929.04(A), the majority does violence to the statute, subverts the will of the General Assembly and ensures further confusion.
Ill
Finally, we come to the action of the majority in remanding “* * * the action to that trial court for a resentencing hearing at which the state may seek whatever punishment is lawful, including, but not limited to, the death sentence.” The majority cites no authority for this action. There is good reason — none exists. In fact, a reading of the statute must lead one to the opposite conclusion.
We have previously addressed this issue when a trial jury instead of, a three-judge panel has heard the case. See State v. Penix (1987), 32 Ohio St. 3d 369, 513 N.E. 2d 744. Much of the same reasoning applies here.
R.C. 2929.05(A) requires us to “* * * review the judgment in the case and the sentence of death * * * in the same manner that * * * [we] review other criminal cases * * *.” When, in other criminal, non-capital cases, we remand to a trial court for resentencing, there is no specific statutory directive that a particular judge carry out the task. Such is not the case, however, with the death penalty statute.
All through the statute, the reference is to “the panel of three judges” not to “a panel of three judges.” See, e.g., R.C. 2929.022(B); 2929.03(C)(2) (a); 2929.03(D)(3); and 2929.03(F). Likewise, the statute uses the term “the trial jury” not “a trial jury.” There is good reason for this.
Take, as an example, what the majority is doing in this case. The cause is remanded for a resentencing hearing to determine punishment — including death. But the statute requires sentencing action to be taken by the panel of three judges. Even if the same three judges are available, can there be any doubt that they are not in the same posture as they were at the time of the original trial? Since that time, they will inevitably have discussed the case outside the court, read the opinions of the court of appeals and this court, and have generally been exposed to matters that they had previously, in order to ensure the defendant a fair trial, avoided. This is not to say that our trial judges could not put all this aside in making a subsequent determination. But — are they the same panel in fact that they are in law?
Further, what if one of the three original judges is no longer available? Do we then permit a resentencing by a panel that has not heard the guilt phase of the trial?
What happens if the same panel is available in this case, but in the next case the panel, as originally constituted, cannot be reconvened? Do defendants then have an equal protection argument?
The fact is that our statute does not provide for the procedure mandated by the majority. While, as indicated by the majority, the United States Supreme Court did approve such a procedure in Skipper v. South Carolina (1986), 476 U.S. 1, the majority fails to tell our readers that the South Carolina statute specifieally provides for a procedure upon remand. S.C. Code Ann., Section 16-3-25(E), provides, in pertinent part, that:
“* * * In addition to its authority *378regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
“(1) Affirm the sentence of death; or
“(2) Set the sentence aside and remand the case for resentencing by the trial judge on the record and argument of counsel. * * * If the court finds error prejudicial to the defendant in the sentencing proceeding conducted by the trial judge before the trial jury as outlined under Item (B) of § 16-3-20, the court may set the sentence, aside and remand the case for a resentencing proceeding to be conducted by the same or a different trial judge and by a new jury impaneled for such purpose. * * *” (Emphasis added.)
Of course there is no such statutory procedure provided for in the Ohio death penalty law. Other than R.C. 2929.06, which the majority concedes does not apply, there just simply is no authority to accomplish what the majority seeks. It is my judgment that the majority decision establishes a bad precedent and we will live to see the day when, by necessity, it will be overruled.
IV
In this case, we have a defendant who plotted the killing of an innocent victim. He surreptitiously purchased a gun and ammunition and then took his victim outside the bar. Witnesses testified that the defendant shot the victim twice. As she fell, defendant fired another shot at her. To finish the job, after his victim was already down, defendant bent down and shot her in the head at close range. She was literally executed, having been shot four times in the left side of the head. Previously, in 1971, the defendant had been convicted of a purposeful killing.
If the majority believes that there was an R.C. 2929.022 problem in this case, then the conviction should be reversed. If the majority believes that the conviction should stand but there was error in the penalty stage egregious enough to vacate the sentence of death, then the majority should, have the fortitude to remand the cause for resentencing pursuant to R.C. 2929.06 and in accordance with Penix.
Since I believe that the evidence of defendant’s guilt is overwhelming and the three-judge panel was correct in its deliberations, I would affirm the conviction and the sentence of death.
Accordingly, I concur in part and dissent in part.
Moyer, C.J., concurs in the foregoing opinion.