dissenting.
Michael Allen Lambert seeks authorization to file a successive petition for post-conviction relief in order to litigate his claim that this Court's opinion in Saylor v. State, 808 N.E.2d 646 (Ind.2004), entitles him to reliéf. I would grant the petition. Therefore I dissent.
Facts and Procedural History
The factual background surrounding Lambert's conviction is set forth in other opinions of this Court. See Lambert v. State, 643 N.E.2d 349 (Ind.1994); Lambert v. State, 675 N.E.2d 1060 (Ind.1996); Lambert v. State, 743 N.E.2d 719 (Ind.2001). In brief, on December 28, 1990, officers of the Muncie Police Department arrested then twenty-year-old Michael Lambert for public intoxication. Although it was snowing and the temperature was in the teens, Lambert was lightly dressed and had been observed trying to crawl under a car in order to sleep. It was later determined that his blood alcohol level was .18. While handcuffed and sitting in the back seat of Officer Gregg Winters' patrol car, Lambert produced a handgun and fired several shots. Officer Winters died eleven days later from wounds to the back of the head and neck.
A jury convicted Lambert of murder and -the trial court sentenced him to *1266death. This court affirmed Lambert's conviction and sentence on direct appeal. See Lambert, 643 N.E.2d 349 (Ind.1994). A second opinion, issued on rehearing, recognized that the trial court had improperly admitted victim impact evidence during the sentencing phase of trial, but this court upheld Lambert's death sentence after independently reweighing the aggravating and mitigating cireumstances. See Lambert, 675 N.E.2d 1060 (Ind.1996), cert. denied, 520 U.S. 1255, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997). Lambert later petitioned for post-conviction relief, which the post-conviction court denied. We affirmed the denial. See Lambert, 743 N.E.2d 719 (Ind.2001), cert. denied, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002). Lambert now seeks permission to file a successive petition for post-conviction relief.
Discussion
The State sought the death penalty in this case based on the qualifying aggravating circumstance that the victim was a police officer killed in the course of duty. See Ind.Code $ 35-50-2-9(b)(6). During the sentencing phase of trial, over Lambert's timely objection, the trial court allowed the State to present victim impact testimony from Muncie Chief of Police Donald Scroggins, Police Officer Terry Winters (the victim's brother), and Molly Winters (the victim's widow). Indiana law allows such testimony when relevant to the charged aggravating circumstance. However, most of the victim impact evidence was irrelevant to the charged aggravator, going "far beyond whether or not the vie-tim was a police officer killed in the line of duty." Lambert, 675 N.E.2d at 1064.
The jury recommended the death penalty, the trial court followed the jury's recommendation, and we affirmed. However the nagging and unanswered question is whether, absent the victim impact testimony, the jury would have returned a recommendation of death. No one can say one way or the other with any certainty. We do know that the inadmissible testimony consumed some twenty-nine pages of transcript, was highly emotional, and even inspired this court to observe, "(indeed, the testimony of Molly Winters about her husband and hero easily moves one to tears." Id. at 1065 n. 8. With this knowledge the Court declared:
We cannot say with any degree of confidence that the jury remained uninfluenced by this testimony. Nor can we say with assurance that the substantial rights of Lambert were not affected. Therefore, we must hold that the error in admitting the victim impact testimony was not harmless error.
Id. Precisely because "we cannot say with any degree of confidence that the jury remained uninfluenced by [victim impact] testimony," and that the error in admitting the testimony "was not harmless," I am compelled to conclude that what we have here is the functional equivalent of no jury recommendation at all. Stated somewhat differently, it is impossible to know with any assurance whether the jury found the existence of the aggravating cireumstance beyond a reasonable doubt, or that the jury determined that the existence of the aggravating cireumstance outweighed any mitigating cireumstance or cireumstances.
The Sixth Amendment requires that "any fact that increases the penalty for a crime beyond "the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ring v. Arizona, made it clear that Ap-prendi applies to capital sentencing schemes. 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556. Here, Lambert's death sentence was based on facts extend*1267ing the sentence beyond the maximum authorized by the jury's verdict finding him guilty of murder. But in effect there was no determination that the qualifying aggravating cireumstance was proven beyond a reasonable doubt. If Lambert were before us on direct appeal, it is clear that his death sentence would violate the federal constitution. See Bostick v. State, 773 N.E.2d 266, 273 (Ind.2002) (holding Ap-prendi and Ring were violated by sentence imposed under Indiana's capital sentencing statute without a jury determination that the qualifying aggravating cireumstances were proven beyond a reasonable doubt).
As the seventh circuit noted, "the procedure followed in this case is called into serious question by Ring []." Lambert v. McBride, 365 F.3d 557, 563 (7th Cir.2004), cert. denied, 542 U.S. 348, 125 S.Ct. 669, 160 L.Ed.2d 507 (2004). However, the cireuit court expressly held that Ring was not retroactive. Id. at 562. More recently the Supreme Court has spoken on the issue and also has held that Ring is an application of the procedural rule announced in Apprendi, and as such does not apply retroactively to cases already final on direct review. Schriro v. Summerlin, 542 U.S. 342, -, 124 S.Ct. 2519, 2522-26, 159 L.Ed.2d 442 (2004). But that is not the end of the analysis. This Court has addressed previously the propriety of affirming a death sentence under cireum-stances analogous to those presented here.
The trial court sentenced Benny Saylor to death for a 1992 murder despite a unanimous jury recommendation against the death penalty. At the time, the jury's death penalty recommendation was advisory only and thus not binding on the trial court. Indiana's capital sentencing statute was amended in 2002 to provide in part, "lilf the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly." Ind.Code § 85-50-2-9(e). - Recognizing that the legal landscape had changed since Saylor was sentenced, we exercised our authority under Article VII, Section 4 of the Indiana Constitution and concluded that Saylor's death sentence was inappropriate. In doing so we said, "even if the Sixth Amendment does not bar Saylor's execution for a pre-Ring crime, as a matter of Indiana state law Saylor, if tried today, could not be sentenced to death without a jury recommendation that death be imposed." Saylor, 808 N.E.2d at 648.
It is true, as the majority points out, the jury in this case did not "unanimously recommend against the death sentence." Order at 8. However, the reverse is equally true: the jury did not properly recommend in favor of the death sentence. Before a jury can recommend the death penalty, it must find that "(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating cireumstances listed in subsection (b) exists; and (2) any mitigating cireum-stances that exist are outweighed by the aggravating circumstance or - circumstances.” Ind.Code § 35-50-2-9(4) 2002. In this case, the trial court as well as this court found the existence of the aggravating cireumstance: a police officer killed in the course of duty. See 1.C. § 35-50-2-9(b)(6). And certainly the record would seem to support the existence of the ag-gravator. We cannot say, however, as a matter of law that the jury made such a finding. In fact, but for the improperly admitted testimony, given Lambert's age at the time of this murder (twenty) and the fact that he was highly intoxicated (scoring .18 on a breathalyzer test) it is conceivable that even had the jury found the existence of the charged aggravating circumstance, the jury may very well have determined that these two mitigating circumstances outweighed the sole aggravating cireumstance and thus would have *1268recommended against the death penalty. It is also conceivable that even finding that the aggravating . cireumstance outweighed the mitigating cireumstances the jury may have exercised its authority under Article 1, Section 19 of the Indiana Constitution and recommended against the death penalty. See Bivins v. State, 642 N.E.2d 928, 946 (Ind.1994) (commenting that because of Art. 1, § 19, a jury in a criminal case is not bound to convict even in the face of proof of guilt beyond a reasonable doubt); Pope v. State, 737 N.E.2d 374, 380 (Ind.2000) (noting that "even in the face of proof beyond a reasonable doubt to the contrary," the jury nonetheless could have recommended against life without parole either upon a finding that the State failed to prove the statutory aggravator, or that the statutory aggravator outweighed any mitigating cireumstances).
A judge is not free under the 2002 amended statute to impose a death sentence absent a jury's unanimous finding that the State has proved beyond a reasonable doubt the existence of at least one of the statutory aggravating circumstances. Under the amended statute, the trial court is required to "provide a special verdict form for each aggravating circumstance alleged." Ind.Code § 35-50-2-9(d). As this Court has observed, "(ilt is thus conceivable that a penalty phase jury could return a verdict finding one or more ag-gravators proven beyond a reasonable doubt, but be unable to reach unanimous agreement on whether any mitigating circumstances are outweighed by the aggravating circumstances." State v. Barker, 809 N.E.2d 312, 316 (Ind.2004). Under those circumstances the trial court is authorized to "discharge the jury and proceed as if the hearing had been to the court alone." Ind.Code § Still, however, "[in the event a penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances, [] Ring and Apprendi would prohibit the trial judge from proceeding under Subsection 9(F) and a new penalty phase trial would be required." Barker, 809 N.E.2d at 316 (citation omitted). Here, although the reasons differ slightly from those in Saylor, it is apparent to me that as a matter of. Indiana statutory law, if tried today Lambert could not be sentenced to death under the facts presented in this case. And this is so because as a practical matter there has been no jury finding of the statutory aggravating circumstance.
I would therefore (1) grant Lambert's request to file a successive petition for post conviction relief, (2) vacate his sentence of death based on the merits of his claim, and (8) remand this cause to the trial court for further proceedings. I would instruct the trial court that if the State elects to dismiss its request for a death sentence, then the trial court may proceed accordingly and resentence the defendant to a term of years as authorized by Ind.Code § 85-50-2-3(a)1 I would also instruct that if the State proceeds with its death sentence request, then the trial court shall convene a new penalty phase jury and conduct further proceedings pursuant to Indiana Code § 35-50-2-9. See Bostick, 773 N.E.2d at 273-74.
. Upon remand the trial court has the authority either to (i) order a new sentencing hearing, (ii) order additional briefing and then issue a new order, or (iii) issue a sentencing order without further proceedings. O'Connell v. State, 742 N.E.2d 943, 952-53 (Ind.2001).