concurring and concurring in result as to Part VL.
One may describe Indiana's death penalty statute as creating a separate crime with additional elements or as simply de-seribing aggravating circumstances in sentencing for a crime which carries the maximum penalty of death. This debate seems to me to be one of semantics, not substance. At bottom, one cannot be sentenced to death in Indiana unless the crime is committed under cireumstances that include one of the listed "eligibility" factors. As a result, Justice Sullivan's reasoning as to the logic of Apprendi seems persuasive to me. At the least, Justice Sullivan's dissent, echoing Justice O'Con-nor's dissent in Apprendi v. New Jersey, 530 U.S. 466, 528, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), raises very substantial issues as to the application of that decision by the Supreme Court of the United States to Indiana's death penalty statute.
The effect of Apprendi on death penalty statutes similar to Indiana's is currently under consideration in the Supreme Court of the United States in Arizona v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001), cert. granted, -- U.S. --, 122 S.Ct. 865, 151 L.Ed.2d 738 (Jan. 11, 2002). In Ring, on the authority of Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Supreme Court of Arizona upheld on direct appeal that state's death penalty despite the subsequent holding in Apprendi. Walton is, of course, the principal support for the majority's views on this issue. Despite the grant of certiorari in Ring, I find the majority's prediction as to the likely result in that case to be plausible. One thing is certain: until Ring is decided, this issue of federal constitutional law is unresolved. However, as explained below, whatever the resolution of this issue as a general proposition, I believe Saylor's sentence does not violate the Constitution of the United States.
This case raises a second debatable issue. Before Apprendi was decided, Say-lor's trial and sentencing, his direct appeal, and his petition for certiorari were all concluded. Even if it is determined that Ap-prendi invalidates the future authority of Indiana trial judges to sentence defendants to death against the jury's recommendation, it is not at all clear that Ap-prendi applies retroactively to Saylor's case.
It is not clear to me, as both the majority and Justice Sullivan appear to assume, that Apprendi would retroactively apply to Saylor's case. Under the "new rule" doe-trine announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), as applied to initial federal habeas corpus proceedings 1 and adopted in Daniels v. State, 561 N.E.2d 487 (Ind.1990), for Indiana postconviction relief, "a new con*568stitutional rule of criminal procedure is generally not applicable to those cases on collateral review, that is, those which have become final before the new rule was announced." Id. at 488-89. Saylor's present appeal is from the denial of his petition for postconviction relief. As such, it is a collateral review proceeding akin to an initial petition for federal writ of habeas corpus. Id. at 488. Although Indiana is theoretically free to fail to give retroactive effect to a new federal constitutional rule governing procedure by denying its postconviction relief procedure to those who seek to invoke a new rule, I can see no reason why we should choose to do so. The only effect of such a refusal would be to force to federal habeas corpus proceedings a claim that we recognize to be valid. So as a practical matter, I would regard the status of Apprendi under Teague and Damiels to be also governed by the ultimate resolution of the retroactivity issue under federal law.
For a new constitutional rule of criminal procedure to apply retroactively on collateral review, that rule must either place certain kinds of conduct "beyond the power of the criminal law-making authority to proscribe" or require the observance of those procedures "implicit in the concept of ordered liberty." Teague, 489 U.S. at 307, 109 S.Ct. 1060. At least five Cireuit Courts of Appeal have examined the issue of whether Apprendi applies retroactively on initial petitions for habeas corpus. All five have said no. See United States v. Sanders, 247 F.3d 139 (4th Cir.2001); United States v. Moss, 252 F.3d 993 (8th Cir.2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.2000); United States v. Aguirre, 2002 WL 188972 (10th Cir. Feb. 7, 2002); McCoy v. United States, 266 F.3d 1245 (1ith Cir.2001). Judges routinely make findings incident to eriminal proceedings, and particularly incident to sentencing. Even if the eligibility factor is viewed as an element, its finding by a trial judge may be viewed as not inherently suspect such that the "fundamental fairness" of the proceeding is in doubt. Teague, 489 U.S. at 311, 109 S.Ct. 1060.
All of the foregoing seems to me to be trumped by the fact that Saylor was on probation at the time of the crime. That cireumstance seems to me to put Saylor's case within the doctrine announced in Ap-prendi that the fact of a prior conviction is not among the facts that need to be found by the jury. Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.E.d.2d 485 ("Other than the fact of a prior conviction, 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."). Status as a parolee or probationer seems to me to be qualitatively the same as a prior conviction for these purposes. Both are established by judicial records and require none of the fact-finding we expect of the jury. One of the eligibility factors the State alleged, and the trial court found, was Saylor's having committed the murder while on probation for a previous burglary. Accordingly, I believe Saylor's sentencing does not implicate Apprendi whether or not that holding applies retroactively. Brannigan v. United States, 249 F.3d 584, 587 (7th Cir.2001) ("[Wlhen an argument invoking Apprendi would fail even if that case turns out to be fully retroactive, we deny it on the merits in order to forestall a further round of litigation if the Supreme Court later should decide in favor of retroactivity."). For the foregoing reasons, I concur in result as to Part VI of the majority opinion. I concur in the remaining portions of the opinion.
. When a new rule applies retroactively in a federal habeas proceeding is the subject of some debate and may differ depending on whether it is the prisoner's first petition. See United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir.2001) ("[It is possible that lower courts can declare new rules retroactive on initial petitions."); Ashley v. United States, 266 F.3d 671, 673 (7th Cir.2001) (wording of habeas statute "implies that courts of appeals and district courts may 'make' the retroactivity decision" on initial petitions); Browning v. United States, 241 F.3d 1262, 1265 (10th Cir.2001) ("[It is clear that the retroactivity determination for second or successive habeas applications belongs wholly to the Supreme Court."). Retroactivity in federal proceedings is an issue of federal law and has no application to this Court's review of postconviction relief petitions. State v. Mohler, 694 N.E.2d 1129, 1132 (Ind.1998) ("State courts hearing claims for collateral review ... are free to set their own retroactivity rules independent of Teague.").