dissenting.
I agree with Justice Rucker that we should allow Lambert to present his petition for post-conviction relief, but I reach that conclusion for somewhat different reasons. As I see it this case does not turn on federal constitutional developments, notably: the requirement first announced in Apprendi v. New Jersey jury find all facts necessary to the judgment. Rather, it presents a variation on the theme first addressed in Saylor v. State, 808 N.E.2d 646 (Ind.2004). In Saylor we held that a death penalty imposed under the prior version of the Indiana death penalty statute should be revisited if it was imposed as a result of a procedure that could not lead to a death sentence under current law. Specifically, the jury in Saylor's case recommended against death, but the trial judge, as was permitted at the time but is not permitted under current law, nevertheless imposed a death sentence. We held, as a matter of state law, under those circumstances we should exercise our power under Article VII of the Indiana Constitution to "review and revise" that sentence. Here we do not have a jury recommendation against death. Rather we have a jury recommendation that was held to be the product of inadmissible and potentially prejudicial evidence. Lambert v. State, 675 N.E.2d 1060, 1064 (Ind.1996). As Justice Rucker points out, that is the functional equivalent of no jury recommendation. The issue, then, is what the consequence of a lack of a jury recommendation should be. I believe that is an issue resolvable under Indiana law without regard to Apprendi and its progeny.
In 1996 we unanimously held that the penalty phase of Lambert's trial was flawed and the error was not harmless because it may have contributed to the jury's recommendation in favor of the death penalty. A majority of this Court concluded that as a result of this error, this Court should review and revise Lambert's sentence. In 1996, Indiana's death penalty statute allowed the court to assess the death penalty, even if the jury recommended against death. I dissented at that time, contending that this Court should not independently assess the death penalty when we could not know what the jury would have recommended if the penalty phase were not tainted, and we could not know what the trial judge would have done if the jury had not recommended death. Accordingly, I concluded that a remand for a new sentencing hearing was required. The same reasoning applies today. We have a flawed jury recommendation, and therefore do not know whether, without the erroneously introduced evidence, the jury would have recommended death, as it did in Lambert's case, or recommended against death, as it did in Saylor's.
I do not agree with the majority's claim that Lambert would be eligible for the death penalty today. In 2002, the General Assembly amended Indiana's death penal*1265ty statute. . The current death penalty statute provides that a trial judge may impose the death penalty only if the jury has recommended that sentence or if the jury is unable to recommend a sentence. Ind.Code § 85-50-29 (2004). .A trial court is no longer permitted to impose the death penalty when the jury recommends against it. In view of the jury verdict convicting Lambert of killing a law enforcement officer, the majority is presumably correct that there is no Appren-di/Ring bar to the death penalty. But I believe the death sentence in this case would be defective as a matter of Indiana state law if Lambert's trial had been conducted under the current Indiana statute. The trial court is precluded from imposing death without a proper jury recommendation in favor of the death penalty or the jury's inability to agree. 1.0. § 85-50-2-9. Because of the acknowledged material error in the sentencing phase, we cannot know whether either of those conditions is met. This Court has the authority to review and revise sentences, but only within the parameters of the sentencing statutes. If this were a direct appeal from a trial conducted under the 2002 law, we therefore could not revise the sentence to impose death. We thus are faced with a situation very similar to that in Saylor. We have a defendant sentenced to death through a procedure that would be improper today. Accordingly, Lambert's case, like Saylor's, is not appropriate for death under the current death penalty statute. I would let Lambert proceed to test his claim that a proper penalty phase would provide a recommendation against death.
As the Seventh Circuit observed in affirming the denial of Lambert's habeas corpus petition, Lambert v. McBride, 365 F.3d 557, 563 (7th Cir.2004), I concurred in this Court's subsequent affirmance of the denial of post-conviction relief. Lambert v. State, 743 N.E.2d 719 (Ind.2001). I did so not because I had reached a different conclusion as to whether this Court's 1996 revision of Lambert's sentence was the correct result. Rather, I merely deferred to the stare decisis effect of the majority's view that appellate reweighing could properly result in a death sentence. Now, however, in light of the 2002 amendments to Indiana's death penalty statute, we have a development that in my view puts the appropriateness of that action in question.