dissenting.
The current requirements governing the imposition of a sentence of life imprisonment without parole after conviction by a jury are contained in two subsections of Indiana Code § 35-50-2-9 — subsections (e) and (k).
Subsection (e) provides that the jury may recommend life imprisonment without parole “only if it makes the findings described in subsection (k). The court shall make the final determination of the sentence, after considering the jury’s recommendation ... The court is not bound by the jury’s recommendation.”
Subsection (k),1 in turn, requires that, “Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), ... must find that: (1) the state has proved behind a reasonable doubt that at least one of the aggravating circumstances listed in subsection (b) exists; and (2) any mitigating circumstances are outweighed by the aggravating circumstances.” (The emphasized language was added to the statute in 1993.)
Farber contends that subsection (k) requires the jury to have made the two specified findings before the court may impose life imprisonment without parole. To the extent that Farber argues that the jury must make written findings adequate for review, I agree with the majority in rejecting his argument.2
However, to the extent that Farber argues that the jury’s recommendation must be consistent with such findings before the court may impose life imprisonment without parole, I agree. That is, I believe the statute does not require the jury to reduce to writing its findings that the State has met its burden with respect aggravating circumstances and that any mitigating circumstances are outweighed thereby — but the statute does require the jury to reach those conclusions in its deliberations before it can recommend, and before the court may impose, a sentence of life without parole.
This is highly significant in this case — the first case we have reviewed involving a crime committed after Indiana Code § 35-50-2-9 was amended in 1993 where a jury recommended against life without parole but the trial court nevertheless imposed that sentence.3
In the 1993 amendment, the legislature for the first time explicitly conditioned the imposition of a sentence under Indiana Code § 35-50-2-9 on the jury making the two findings: “Before a sentence may be imposed under this section, the jury ... must find that” the state has met its burden with respect aggravating circumstances and that any mitigating circum*143stances are outweighed thereby. Indiana Code § 35 — 50—2—9(i),4 as added by P.L. 250-1993, § 2. To repeat, the condition “[b]efore a sentence may be imposed under this section” was added to the statute in 1993 and we have never before been called upon to construe it. This language unambiguously conditions the imposition of a sentence of life without parole (a “sentence under this section”) on the jury making the two required findings. Those findings need not be in writing but where, as here, the jury recommends against life without parole, the recommendation is contrary to the required findings and the condition is not met. As such, the sentence cannot be imposed.
The State argues that such a construction is inconsistent with the statutory language in subsection (e) noted above, namely, “The court is not bound by the jury’s recommendation.” With due regard for the rule of lenity,5 I view these provisions to mean that a court may not impose a sentence of life without parole if the jury does not make the required two findings (and therefore recommends against life without parole) but that even where a jury does recommend a sentence of life without parole, the court is not bound by the jury’s recommendation and may impose a term of years.
I would hold that by recommending against a sentence of life without parole, the jury in this case did not make the findings required by subsection (k). Because a jury must make such findings “[bjefore a sentence may be imposed under” Indiana Code § 35-50-2-9, the trial court was not authorized to impose a sentence of life without parole.
. Subsection (k) was designated subsection (i) at the time Farber committed the crime that is the subject of this appeal. The text is otherwise the same. Ind.Code § 35-50-2-9 (Supp.1994).
. See Bieghler v. State, 481 N.E.2d 78, 86 (Ind.1985) ("no authority ... for the proposition that juries ... need make written findings” under Ind.Code § 35-50-2-9), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986); Burris v. State, 642 N.E.2d 961, 967 (Ind.1994) (rejecting argument that a defendant could not be sentenced under Ind.Code § 35-50-2-9 unless the jury made a specific finding of aggravating circumstances), cert. denied, 516 U.S. 922, 116 S.Ct. 319, 133 L.Ed.2d 221 (1995). The crimes at issue in both the Bieghler and Burris cases occurred prior to the addition of subsection (k) to Indiana Code § 35-50-2-9. But the version of the statute in effect at the time of those crimes both contained language in subsection (e) providing that a "jury may recommend the death penalty only if it finds” that the state has met its burden with respect aggravating circumstances and that any mitigating circumstances are outweighed thereby. See Indiana Code § 35-50-2-9(e) (Supp.1981 (Bieghler) & Supp.1979 (Burris)). As such, this Court has previously decided that the jury findings discussed in Indiana Code § 35-50-2-9 need not be in writing.
. Nor have we reviewed any cases involving a crime committed after the 1993 amendment where a jury recommended against death but the trial court nevertheless imposed that sentence.
. As noted in footnote 1, this subsection has been re-designated subsection (k).
. See Smith v. State, 675 N.E.2d 693, 697 (Ind.1996) (penal statute must be strictly construed against the State); Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993) (same); Loftus v. State, 222 Ind. 139, 143, 52 N.E.2d 488, 490 (1944) (same).