concurring in part and dissenting in part.
I agree with the majority's analysis and conclusion that Saylor is not entitled to *569post-conviction relief from his conviction for murder. I disagree, however, with its analysis and conclusion that the Indiana capital murder and sentencing scheme complies in all respects with the requirements of the Supreme Court's recent Ap-prendi decision.1 I believe that in most cases, our death penalty statute does not violate Apprendi. But contrary to the majority's view, I believe that in certain cases in which the jury recommends either a term of years or makes no sentencing recommendation and the judge nevertheless sentences the defendant to death, the requirements of Apprendi are not met and the sentence is therefore unconstitutional. Saylor's is such a case.
In summary, my argument is this.2 In death penalty cases, Apprendi v. New Jersey does not "permit[ ] a judge to determine the existence of a factor which makes a crime a capital offense;" rather, a jury must determine the existence "of all the elements of an offense which carries as its maximum penalty the sentence of death. ..." 3 When a judge in Indiana imposes a death sentence where the jury has recommended against death or has made no sentencing recommendation, the judge in certain cases makes the determination Apprendi reserves for the jury.4 That is what the judge did in Saylor's case.
I
To explain why I believe Indiana's (unique) capital murder and sentencing scheme in part violates Apprendi, I begin with a review of our statute and, in particular, the two distinet functions of "aggravating circumstances" within it.
A
The Supreme Court has divided capital cases into two stages: an "eligibility" stage in which the defendant is found to be a member of the narrowed death-eligible class; and a "selection" stage in which the death-eligible defendant's sentence is determined. See generally Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Nina Rivkind & Steven F. Shatz, Cases and *570Materials on the Death Penalty 135 (2001).
Our Legislature has established the crime of murder in Ind.Code § 85-42-1-1. As in all criminal prosecutions, a defendant accused of murder is entitled to a trial by Jury in which the State is required to prove beyond a reasonable doubt each of the elements of the crime. U.S. Const. amends. VI & XIV; Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)).
However, a defendant convicted of murder under Ind.Code § 35-42-1-1 is not eligible for a sentence of death. As Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.E.d.2d 346 (1972), suggested, and Gregg, and its companion cases made clear, for a capital sentencing scheme to be constitutional, the scheme must "narrow|[ ] the class of persons convicted of murder who are eligible for the death penalty." Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), reh'g denied, 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 (1988) (citing Stephens, 462 U.S. at 874, 108 S.Ct. 2733). Our Legislature has provided this constitutionally-mandated "narrowing" in Ind.Code § 35-50-2-9. A defendant found guilty of murder under Ind.Code § 35-42-1-1 is not eligible for a death sentence unless the State proves beyond a reasonable doubt one or more of the factors set forth in Ind.Code § 85-50-2-9(b)5 If a finding that one or more of the factors set forth in Ind.Code § 35-50-2-9(b) is made, the defendant is then eligible for a death sentence; the Supreme Court's "eligibility stage" is finished.
Under the Indiana statute, the "selection stage" requires weighing the aggravating cireumstance or cireumstances with any mitigating cireumstances. A death sentence may be imposed if the mitigating cireumstances do not outweigh the aggravating cireumstance or cireumstances. Ind.Code § 35-50-2-9(k)(2) (1998).
Set forth schematically,6 the imposition of a death sentence under the Indiana capital murder and sentencing regime requires the following three steps:
Step (1): A finding that the State has proved beyond a reasonable doubt the elements of the crime of murder set forth in Ind.Code § 35-42-1-1.
Step (2): A finding that the State has proved beyond a reasonable doubt one or more of the death eligibility factors set forth in Ind.Code § 35-50-2-9(b). These first two steps comprise the Supreme Court's "eligibility stage."
Step (8): A finding that any mitigating circumstances that exist are outweighed by the aggravating cireum-stances or circumstances. Ind.Code § 85-50-2-9(k)(2) (1998). This third step comprises the Supreme Court's "selection stage."
There is no dispute but that the finding in step (1) must be made by a jury. And whatever it may say about step (2) (to be discussed at length infra ), Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 *571L.Ed.2d 511 (1990), holds that a jury is not required to make the finding in step (3).
Where the majority and I differ is whether Apprendi requires that the finding of step (2) be made by a jury. I believe Apprendi so requires.
B
Before proceeding, I need to make two additional points about the three steps in our capital murder and sentencing scheme.
First, there are the two entirely distinct functions that the term "aggravating circumstance" plays under our Indiana statute. The term "aggravating cireumstance" is used for factors that are weighed in the sentencing determination in step (8). It is also the term that is used for the death eligibility factors in step (2). This distinction is, in my view, important in understanding what Apprendi said, and didn't say, about Walton v. Arizona.
Second, the fact that Apprendi may or may not apply to other states' capital murder and sentencing schemes (including those schemes under which the jury makes a sentencing recommendation to the judge) is not determinative of whether or not it applies to Indiana's While each state's criminal law is subject to the mandates of the federal constitution, principles of federalism give the states wide latitude in constructing their criminal codes, including their death penalty schemes. Whatever the Supreme Court may or may not have said about the Arizona death penalty scheme when it discussed Walton v. Arizona in Apprendi (and whatever it may say about the Arizona death penalty scheme when it decides State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001), cert granted, - U.S, --, 122 S.Ct. 865, 151 L.Ed.2d 738 (2002)) does not necessarily- and I will argue does not-apply to the Indiana death penalty scheme.
C
The majority accurately points out that the majority in Apprendi discusses Walton v. Arizona, a death penalty case in which the Supreme Court upheld Arizona's capital sentencing scheme under which the judge, not jury, finds specific aggravating factors before imposing a death sentence. For reasons alluded to in the Part I-B, swpra, I disagree with the majority that this discussion constitutes authority for holding that Indiana's capital sentencing scheme is valid under Apprendi in all respects. To explain why requires an understanding of the context of the discussion of Walton in Apprendi as well as a review of the entire discussion.
Apprendi, as the majority says, involved a defendant found guilty by a jury of possessing an illegal firearm. Under New Jersey law, an additional sentence was imposed after the trial judge found that the defendant "in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." 530 U.S. at 468-69, 120 S.Ct. 2348. The defendant argued that under the constitution, this additional sentence could only be imposed if the factual determination authorizing the increase in the sentence was made by a jury on the basis of proof beyond a reasonable doubt. Id. at 471, 120 S.Ct. 2348.
The Supreme Court agreed with the defendant and held that the Due Process Clause of the Fourteenth Amendment requires states to submit to jury and prove beyond a reasonable doubt any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum. Id. at 490, 120 S.Ct. 2348 (citing and quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 811 (1999)).
*572In dissent, Justice O'Connor argued that such holding was inconsistent with Walton v. Arizona. In that case, the defendant had challenged the Arizona capital sentencing scheme, contending that the Constitution required that the jury, and not the judge, make the factual determination of the existence or nonexistence of the statutory aggravating factors. The Supreme Court had rejected his claim.
Arguing that Walton refuted the rule announced in Apprendi, Justice O'Connor wrote:
Under Arizona law, the fact that a statutory aggravating cireumstance exists in the defendant's case " 'increases the maximum penalty for [the] crime'" of first-degree murder to death. If the judge does not find the existence of a statutory aggravating cireumstance, the maximum punishment authorized by the jury's guilty verdict is life imprisonment. Thus, using the terminology that the Court itself employs to describe the constitutional fault in the New Jersey sentencing scheme presented here, under Arizona law, the judge's finding that a statutory aggravating cireumstance exists 'exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."
Apprendi, 530 U.S. at 537, 120 S.Ct. 2348 (O'Connor, J., dissenting) (internal citations omitted). To Justice O'Connor's argument, the majority responded:
Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. For reasons we have explained, the capital cases are not controlling:
"Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, onee a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.... The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge."
Apprendi, 530 U.S. at 496-97, 120 S.Ct. 2348 (internal citations omitted; quoting Almendarez-Torres v. United States, 528 U.S. 224, 257, n. 2, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)).
I acknowledge that these two passages have something of the character of ships passing in the night. The Apprendi majority says that Walton is not controlling because it does not allow "a judge to determine the existence of a factor which makes a crime a capital offense." Id. But Justice O'Connor says that that is exactly what Walton permits when it allows "a defendant convicted of first-degree murder [to] be sentenced to death only if the judge finds the existence of a statutory aggravating factor." Id. at 586, 120 S.Ct. 2348 (O'Connor, J., dissenting).
Until the Supreme Court provides further guidance on this point, I think the majority and dissenting positions can be reconciled for purposes today in the following way. First, we should recognize that the Indiana statute is materially different from that of Arizona. The Indiana statute calls for the jury to be involved in step (2); *573the Arizona statute at issue in Walton apparently did not. More to the point, the Indiana statute imposes upon the State in step (2) the burden of proving beyond a reasonable doubt the existence of one or more death eligibility factors. Furthermore, the jury's finding must be unanimous. Second, we should recall the two distinct functions that the term "aggravating cireumstance" plays in the Indiana statute-an "eligibility" function in step (2) and a "selection" function in step (8). In summary, we should not and need not require Apprendi to operate with respect to our statute in precisely the same way that it operates with respect to Arizona's, both because our Legislature has chosen to involve the jury much more substantially in ours than in Arizona's and because the term "aggravating cireumstance" operates differently in our statute than in Arizona's.
Proceeding in this way, it seems to me that, regardless of how Arizona's capital sentencing scheme operates, the finding required in step (2) of the Indiana scheme is precisely the kind of finding in a capital case that Apprendi contemplates being made by a jury: a "determin[ation of] the existence of a factor which makes a crime a capital offense"; a determination of "all the elements of an offense which carries as its maximum penalty the sentence of death"; a determination of the "actions that expose [a defendant] to the death penalty...." Id. at 497, 120 S.Ct. 2348 (internal quotation marks and citations omitted).
D
I think the correctness of this conclusion can be illustrated by the following hypothetical. As noted above, after the State has met its burden of proof under step (1), it must then prove beyond a reasonable doubt the existence of one or more of the death eligibility factors set forth in Ind. Code § 85-50-2-9(b). Some of the existing death eligibility factors depend upon the defendant acting in a particular way while committing the crime, eg., committing the crime "by unlawful detonation of an explosive," § 35-50-2-9(b)(2); committing the crime by "dismember[ing] the vie-tim," § 35-50-2-9(b)(10); and committing the erime by "burn[ing], mutilatat[ing], or tortur[ing] the vietim," $ 85-50-2-9(b)(11).
Suppose that the Legislature were to add to Ind.Code § 85-50-2-9(b) a new "hate crime" death eligibility factor: that "the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." In my hypothetical, suppose further that the State were to seek a death sentence based on this factor. That is, in order for the defendant to be death eligible, the State would be required to prove this "hate crime" aggravator beyond a reasonable doubt. Can there be any question but that Ap-prendi requires such a determination to be made by a jury?
II
A
For the reasons set forth above, I believe that Apprendi requires that a jury make a determination beyond a reasonable doubt that one or more of the death eligibility factors set forth in Ind.Code § 85-50-2-9(b) have been proven beyond a reasonable doubt by the State in order for a person to be eligible to be sentenced to death in Indiana. However, I believe that in most cireumstances the Indiana statute complies with the Apprendi mandate. For this reason, I disagree with the conclusion of Judge Hawkins in State v. Barker, No. 49GO05-98308-CF-095544 (Marion Sup.Ct. Sept. 10, 2001), interlocutory appeal grant*574ed, No. 49800-0110-DP-461 (Ind. Oct. 10, 2001), that Apprendi renders Ind.Code § 35-50-2-9(b) unconstitutional on its face.
Following the completion of step (1), if the defendant has been found guilty, Ind. Code § 85-50-2-9 requires that the jury be reconvened for purposes of (i) considering proof of the existence of one or more of the death eligibility factors set forth in Ind.Code § 35-50-2-9(b), (ii) considering whether any mitigating cireumstances are outweighed by the aggravating circumstance or cireumstances, and (ii) considering whether the defendant should be sentenced to death, to life without parole, or to a term of years. Unless the jury unanimously 7 concludes that the State has proven the existence of one or more of the death eligibility factors set forth in Ind. Code § 85-50-2-9(b), the proceeding is terminated, and the defendant is not eligible to be sentenced to death. Because of this, I believe that our statute complies with Apprendi in all but two limited situations-and that even in some of those two limited situations, Apprendi is satisfied.
B
After evidence has been presented to a jury with respect to the three determinations described in the previous paragraph, the jury retires for deliberations. Our statute then provides that the jury is to return to the court with a "recommendation" as to whether the defendant should be sentenced to death, to life without parole, or to a term of years. The jury's recommendation must be unanimous and so it is possible that, in the event of irree-oncilable disagreement, that the jury will have no sentencing recommendation at all.
Our statute provides that, upon receipt of the jury's recommendation, the judge has final authority as to sentencing. If the jury recommends to the judge that the defendant be sentenced to death or to life without parole, I believe that sentencing can proceed in conformity with Apprendi. This is because the jury is not permitted to make such a recommendation unless it has first found that the State has proved beyond a reasonable doubt the existence of one of the eligibility factors set forth in Ind.Code § 85-50-2-9(b), ie., step (2). Therefore, when a jury recommends a sentence of death or life without parole, it has by definition made the predicate determination of death eligibility required by Ap-prendi.
However, in two situations-where a jury recommends a term of years or makes no sentencing recommendation-I believe that Apprendi prohibits imposition of death or life without parole. This is because in these two situations the jury need not have found that the State has proved beyond a reasonable doubt the existence of one of the eligibility factors set forth in Ind.Code § 35-50-2-9(b), i.e., step (2).
C
A jury could, of course, unanimously find that the State has proved beyond a reasonable doubt the existence of one of the eligibility factors set forth in Ind.Code § 35-50-2-9(b), but nevertheless recommend a term of years or make no sentencing recommendation. This might be the result, for example, because the jury found that the mitigating cireumstances were not outweighed by the aggravating cireum-*575stance or circumstances. Cases such as these would not violate Apprendi.
The difficulty that these cases present, of course, is that it is not always apparent, when the jury recommends a term of years or makes no sentencing recommendation, whether it found the defendant to be death eligible or not. Unless it is clear that the jury has found the defendant to be death eligible, I think that Apprendi requires that we find that the State has not met its burden of proof as to eligibility.
D
Having said that, I think there are at least two types of cases where, even though the jury recommends a term of years or makes no sentencing recommendation, it is sufficiently clear that the jury has found the defendant to be death eligible that death may therefore be imposed consistent with Apprendi.
D-1
One such type of case is where the jury has made written findings as to death eligibility, ie., step (2). We have seen cases in Marion County in which a jury has made a written eligibility finding before recommending a term of years in a case in which the State sought life without parole. See Holsinger v. State, 750 N.E.2d 354, 360 (Ind.2001). 'We have held that such findings are not required. See Farber v. State, 729 N.E.2d 139 (Ind.2000); id. at 142, n. 2 (Sullivan, J., dissenting) (listing cases). Because such findings would in my view eliminate the Apprendi problem, I would direct that they be required in cases proceeding under Ind.Code § 85-50-2-9.
D-2
A second such type of case is where the jury's verdict in the guilt phase of the trial, i.e., step (1), constitutes a finding of death eligibility. Pope v. State, 737 N.E.2d 374, 381 (Ind.2000), reh'g denied, illustrates this type of case. In Pope, the State sought a sentence of life without parole, asserting two eligibility factors: that the defendant had intentionally killed another human being during a robbery, Ind.Code § 385-30-2-9(b)(1)(G); and that the defendant had committed two murders at the same time, § 35-50-2-9(b)(8). The jury had been instructed that, in order to recommend a sentence of life without parole, it was required unanimously to find the defendant guilty beyond a reasonable doubt of the first eligibility factor "and/or" the second. The defendant argued on appeal that because the eligibility factors were worded conjunctively as well as alternatively, it was impossible to know whether the jury unanimously found any charged aggravating cireumstance proven beyond a reasonable doubt.
We held that "the use of 'and/or' appears to have given the jury the option to recommend life without parole where less than all members of the jury found any single charged aggravator to have been proven beyond a reasonable doubt. Such an option is contrary to the mandate of the statute," Pope, 787 N.E.2d at 381, and, I would argue, contrary to the mandate of Apprendi. However, we held the error to be harmless-and I would hold it to be harmless for Apprendi purposes as well-because the jury had demonstrated by its guilt phase verdict that it had found at least one of the eligibility factors to have been proven beyond a reasonable doubt: that the defendant had committed two murders at the same time. In the guilt phase of trial, the jury had unanimously found the defendant guilty beyond a reasonable doubt of the murders of two individuals. As such, it was sufficiently clear that the jury had unanimously found beyond a reasonable doubt the existence of one of the eligibility factors set forth in Ind.Code § 85-50-2-9(b). Id.
*576E
In conclusion, I would hold that Appren-di does not render Indiana's capital murder and sentencing regime, Ind.Code § 35-50-2-9, unconstitutional on its face. However, I would hold that Apprendi does not permit a sentence of death (or life without parole) to be imposed in Indiana where a jury has recommended a term of years or has made no sentencing recommendation unless there is a sufficiently clear showing that the jury has found unanimously that the State has proved beyond a reasonable doubt the existence of one of the eligibility factors set forth in Ind.Code § 85-50-2-9(b).
III
The jury in Saylor's case recommended that he be sentenced to a term of years, not to death. Notwithstanding this recommendation, the trial judge imposed a death sentence. Saylor v. State, 686 N.E.2d 80, 87 (Ind.1997). As discussed above, it is my position that Apprendi does not permit imposition of a death sentence under the Indiana statute unless the jury unanimously finds that the State has met its burden of proving the existence of one or more of the eligibility factors set forth in Ind.Code § 85-50-2-9(b). Because the jury recommended against death here without making written eligibility findings, and because the case here does not fall within the categories of cages described in either part IID-1 or part II-D-2 supra, I find the sentence impermissible under Apprendi.
The eligibility factors which the State alleged in support of a death sentence were that Saylor had intentionally killed the victim while attempting to commit a robbery, Ind.Code § 35-50-2-9(b)(1)(G), and that at the time the murder was committed, Saylor was on probation after receiving a sentence for burglary, § 35-50-2-9(b)(9)(C). No jury findings of the kind described in part II-D-1 are of record as to the existence of the aggravating cireum-stances.
As to the category of cases described in part II-D-2, I am unable to conclude from the guilt phase (step (1)) of the trial that the jury unanimously convicted Saylor of both intentional murder and robbery. The jury did unanimously find him guilty of robbery. But the murder charge on which the jury unanimously found him guilty alleged that he "knowingly" killed the vice-tim, not that he "intentionally" did so.8 As the aggravating cireumstance requires a finding by the jury of "intentional" killing, the jury's guilt phase verdict in this case did not constitute a finding of the existence of one of the death eligibility factors.
As to the other charged aggravating circumstance, killing while on probation, I am unable to join Justice Boehm's analysis. While he may be correct that Apprendi is satisfied with respect to this aggravator, I do not think that making a defendant eligible for death on the sole basis of a knowing killing while on probation "genuinely narrow[s] the class of persons eligible for *577the death penalty and .... reasonably jus-tiflies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder," Stephens, 462 U.S. at 877, 103 S.Ct. 2733, as required by the U.S. Constitution.
I would find that the mandate of Ap-prendi that a jury unanimously find beyond a reasonable doubt that the State has proved one of the eligibility factors set forth in Ind.Code § 85-50-2-9(b) has not been met in this case. Accordingly, I would set aside Saylor's sentence of death.
. Like the majority, I assume for purposes of this opinion that the holding in Apprendi is retroactive to Saylor's case. There are a growing number of federal cases addressing the issue of whether Apprendi is to be applied retroactively in federal habeas cases. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir.) cert denied, - U.S.-, 122 S.Ct. 573, 151 L.E.d.2d 445 (2001) ("neither the Supreme Court nor any of our sister circuits have held that Apprendi is retroactively applicable on collateral attack.") Several district courts have held that Apprendi does apply to habeas corpus petitions. See Levan v. United States, 128 F.Supp.2d 270, 275-76 (E.D.Pa.2001) (listing cases). However, the question of whether Apprendi applies retroactively for purposes of state collateral review is a question of state, not federal, law. See generally State v. Mohler, 694 N.E.2d 1129 (Ind.1998) (discussing Daniels v. State, 561 N.E.2d 487 (Ind.1990)).
. This same analysis applies where a judge imposes a sentence of life without parole notwithstanding a jury recommendation of a term of years or no jury sentencing recommendation. -In order to simplify this opinion, I will omit references to the life without parole scenario except where necessary or where the applicable Indiana precedents involve sentences of life without parole rather than death.
. 530 U.S. 466, 497, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (internal quotation marks and citation omitted).
. I have made a similar argument as a matter of statutory construction in dissent in another case. Farber v. State, 729 N.E.2d 139, 142 (Ind.2000) (Sullivan, J., dissenting).
. The number of eligibility factors sent forth in Ind.Code § 35-50-2-9(b) are many. The ones with which Saylor was charged were: that Saylor had intentionally killed the victim while attempting to commit a robbery, § 35-50-2-9(b)(1)(G), and that at the time the murder was committed, Saylor was on probation after receiving a sentence for burglary, § 35-50-2-9(b)(9)(C).
. Compare my schematic with the "pyramid" with three planes that the Georgia Supreme Court used as an analogy for its state's capital sentencing scheme in responding to the Supreme Court's certified question in Zant v. Stephens, 462 U.S. 862, 871, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
. This unanimity requirement bears emphasizing because it differentiates our statute from those of other "jury recommendation-judicial sentencing" states. Were it not for this unanimity requirement as to one or more death eligibility factors, I do not believe our statute would comply with Apprendi's mandate.
. Count I of the information alleged that Say-lor "knowingly killled]" the victim. (R. at 37.) During closing argument, the prosecutor defined murder as occurring when "a person 'knowingly or intentionally kills another human being." (R. at 4941.) The trial court instructed the jury that murder occurs when "a person knowingly or intentionally kills another human being." (R. at 5064, 5069.) While it is possible that under these circumstances the jury did find Saylor guilty of intentional murder, it is also possible that it found him guilty of only knowing murder. (To this extent, our opinion on direct appeal was incorrect in saying that the jury had found Saylor guilty of intentional murder. Saylor, 686 N.E.2d at 89.) The fact that the jury also convicted Saylor of felony murder also does not constitute a finding of guilt of intentional murder since there is no mens rea requirement for felony murder.