concurring in judgment only.
{¶ 59} The sole issue accepted by this court for resolution confines us, I believe, to affirming the court of appeals. Even if we were to accept Reginald Warren’s arguments regarding due process and fundamental fairness, we cannot order the trial court to consider his status as a juvenile to be a mitigating sentencing factor because former R.C. 2907.02(B) provided that a defendant convicted of forcible rape of a child under 13 receives a mandatory life sentence. 141 Ohio Laws, Part II, 4481. The General Assembly did not specify that youth could be considered to mitigate sentencing as it had, for example, in former R.C. 2929.04(B)(4) with respect to capital cases.7 139 Ohio Laws, Part I, 1, 16.
{¶ 60} This case is troublesome on the facts. In 2004, Reginald Warren was indicted, tried, convicted, and sentenced for a 1988 forcible rape of a child under 13, based solely on the testimony of the complaining witness and without any physical evidence. In 1988, he was 15 years old and subject to adjudication in juvenile court; 17 years later, he received a mandatory life sentence as an adult. Of all the issues raised — preindictment delay, extension and tolling of the statute *213of limitations, cruel and unusual punishment, and Warren’s conviction as an adult for a crime committed when he was a juvenile — only the last issue, whether two statutes were applied to deprive him of due process and fundamental fairness, was accepted for consideration by this court.
{¶ 61} I join in the sentiments expressed by Justice Pfeifer, dissenting in State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 58-69, with respect to the unconstitutional retroactive application of statutes similar to those at issue in this case, and if we were not bound to follow the precedent established in Walls, I would hold that juveniles who committed offenses in 1988 are subject to juvenile penalties only. R.C. 2152.02(C)(3) provides that “[a]ny person who, while under eighteen years of age, commits an act that would be a felony if committed by an adult and who is not taken into custody or apprehended for that act until after the person attains twenty-one years of age is not a child in relation to that act.” (Emphasis added.)
{¶ 62} Referring to the same phrase in former R.C. 2151.23(1), which automatically bound over adults to the criminal court for offenses committed as juveniles, Justice Pfeifer explained, “[T]he use of the present tense [‘commits an act’] indicates that the statute applies to acts that occur over the life of the statute. The law tells persons under 18 years old that if they commit a felony but avoid apprehension until after age 21, they will face disposition of their case through the criminal court. It alerts persons under eighteen years of age to the consequences of not facing responsibility for their actions in a timely manner. The statute does not speak to persons over 21 who have already committed a felony as a juvenile before the statute was enacted. Those persons would be unable to conform their behavior to the statute.” (Emphasis added.) Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 65 (Pfeifer, J., dissenting).
{¶ 63} Warren committed the offense in 1988. R.C. 2152.02(C)(3) was enacted in 1997. Until 2002, when the “serious youthful offender” laws became effective, creating blended sentences, see R.C. 2152.13(D), a juvenile who committed forcible rape of a child under ten would have faced either confinement until 21 as a juvenile or a bindover to adult court. If Warren had been charged and convicted while still a juvenile, he would not have been automatically sentenced to life in prison and, although subject to bindover, could have disputed his disposition as an adult and have forced the state to demonstrate that he could not be rehabilitated within the juvenile system. Retroactivity, however, is no longer an open issue and cannot be the basis for finding the statutes unconstitutional as applied in this case. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829.
{¶ 64} Former R.C. 2907.02(B), the statute that has been applied to Warren, specified a mandatory life sentence and did not allow for the consideration of a *214defendant’s age. 141 Ohio Laws, Part II, 4481. The current version of R.C. 2907.02(B), which became effective January 1, 2008, does take youth into consideration for some rape offenses: “If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section [rape of a child under 13], if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.”
{¶ 65} Thus, even under current law allowing sentencing mitigation for the youth of an offender, Warren would still be subject to a term of life imprisonment without parole, because his victim was younger than ten at the time of the offense. If former R.C. 2907.02(B) had allowed the sentencing court to consider Warren’s status as a juvenile when the crime was committed, I would vacate the sentence and remand to the trial court for resentencing. But because the General Assembly had not provided in former R.C. 2907.02(B) that youth could be mitigating, I concur in judgment only.
Lundberg Stratton and O’Donnell, JJ., concur in the foregoing opinion.
. The current version of R.C. 2929.04(B)(4) also allows an offender’s youth to be considered in capital cases.