concurring in judgment only.
{¶ 16} I reluctantly agree with the ultimate conclusion reached by the majority but do not concur in its reasoning. Therefore, I concur in judgment only and do not join in the syllabus paragraph.
{¶ 17} My perception of the issue raised by this case starts with the view that the syllabus of State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744, was wrongly decided. I find persuasive the dissenting opinion of Justice Robert Holmes in Penix, who reasoned that neither R.C. 2929.03 nor 2929.06, as they then existed, prohibited the state from seeking the death penalty upon remand when the original death sentence was vacated due to penalty-phase error. See id. at 375-379, 513 N.E.2d 744 (Holmes, J., dissenting).
{¶ 18} Current R.C. 2929.06(B), effective October 16, 1996, as amended, now explicitly reflects the position of Justice Holmes that the death penalty should be available in this situation. See 1996 Sub.S.B. No. 258, 146 Ohio Laws, Part VI, 10539, 10548, 10554. In amending the statute, the General Assembly did not specify that it was to operate retroactively. Neither did the General Assembly choose to specifically address the effect the amended statute had on Penix, although the holding of Penix was clearly abrogated.
*116{¶ 19} Like the majority, I find that the General Assembly’s failure to specify within current R.C. 2929.06(B) that the statute operates retroactively leads to a presumption that the statute is prospective only and that the presumption has not been overcome in this case. Unlike the majority, however, because I agree with Justice Holmes in his dissent that Penix is an inaccurate interpretation of prior law, I believe that a statutory amendment was not necessary to subject Williams to the death penalty on remand. In different circumstances, I would support the overruling of Penix and its syllabus, and would therefore dissent from the majority’s holding, finding that Williams should be eligible to receive a death sentence on remand.
{¶ 20} My chief reasons for not advocating the overruling of Penix involve two different passages of time. Penix was decided in 1987 and continued to be fully valid until the General Assembly enacted current R.C. 2929.06(B) in 1996. If the General Assembly felt that Penix was wrongly decided, it could have acted more quickly than that to do away with it, instead of allowing the decision to control on the issue for approximately nine years. Also, it would seem that if the General Assembly disagreed with the Penix court’s interpretation of prior law, it could have specified so somewhere within 1996 Sub.S.B. No. 258, as it has commented on past decisions of this court within other bills that have been reviewed by this court. The failure to comment on Penix, considered along with the failure to explicitly make current R.C. 2929.06(B) retroactive, could easily be viewed as acquiescence by the General Assembly in its holding.
{¶ 21} The second passage of time that affects my view of whether Penix should be overruled involves the almost eight years that have passed from the 1996 amendment of R.C. 2929.06 until the issue now comes before us in this case. It is apparent that R.C. 2929.06(B)’s reach is limited to a small number of cases, and for that reason it is not surprising that it has taken this long for the issue to be raised, especially given that death-penalty cases frequently progress at a very deliberate pace. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 218 (Resnick, J., concurring in part and dissenting in part). Nevertheless, when these two time periods are added together, Penix has ostensibly survived for almost 17 years to apply to death-penalty cases in which the capital offense occurred prior to October 16, 1996. I am loath to overrule settled law that has continued unquestioned for this length of time and that applies to such a limited number of cases, even if I believe that it was wrongly decided.
{¶ 22} Because, like the majority, I conclude that Penix should not be overruled and so controls, I agree with the majority that on remand the trial court must choose from the sentencing options available when Williams committed his capital offense, in December 1995. Life imprisonment without parole and *117life imprisonment with parole eligibility after 25 full years were not available as sentences for a capital case until R.C. 2929.03 was amended, effective July 1, 1996 (1995 Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7454-7456, 7810, and 1996 Am.Sub.S.B. No. 269, 146 Ohio Laws, Part VI, 10752, 10926-10927, 11099), and so appellant is not eligible to receive either of those sentences. See Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 220 (Resnick, J., concurring in part and dissenting in part), citing State v. Madrigal (2000), 87 Ohio St.3d 378, 399, 721 N.E.2d 52, and State v. Raglin (1998), 83 Ohio St.3d 253, 259-260, 699 N.E.2d 482.
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee. Jeffrey M. Gamso and David L. Doughten, for appellant. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Christopher D. Stock, Deputy Solicitor, and Matthew Chamberlain, Assistant Attorney General, for amicus curiae Attorney General of Ohio. Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for amicus curiae Franklin County Prosecuting Attorney. David H. Bodiker, Ohio Public Defender, Pamela J. Prude-Smithers and Siobhan R. Clovis, Assistant Public Defenders, for amicus curiae Ohio Public Defender. Michael J. Benza and Carrie L. Davis, for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.{¶ 23} Since the death penalty was a sentencing option at the time Williams committed his capital offense, Madrigal and Raglin do not themselves prevent its imposition on remand in this case. For that reason, if the General Assembly had expressly made current R.C. 2929.06(B) retroactive, those decisions would play no role in our inquiry into the constitutionality of the statute’s application to Williams. Williams’s arguments in this regard, premised on this court’s possible acceptance of the state’s position that R.C. 2929.06(B) can be applied retroactively, strike me as less than convincing. However, because this court has not accepted the state’s threshold proposition that the statute can be applied retroactively, there is no occasion to consider whether retroactive application would offend constitutional provisions.
{¶ 24} For all the foregoing reasons, I concur in judgment only.
Lundberg Stratton, J., concurs in the foregoing concurring opinion. David C. Stebbins; Law Office of S. Adele Shank and S. Adele Shank, for amicus curiae Ohio Association of Criminal Defense Lawyers.