dissenting.
Respectfully, I must dissent. The majority has recognized that the Commonwealth does not have a constitutional right to a jury trial since § 7 of the Kentucky Constitution relates only to the determination of guilt or innocence. Lee v. Buchanan, Ky., 264 S.W.2d 661 (1954); Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594 (1945); Wilson v. Commonwealth 141 Ky. 341, 132 S.W. 557 (1910). Thus, the Commonwealth and the majority both rely on RCr 9.26(1), which is limited in application to “[cjases required to be tried by jury....”
At this point in this case, a trial by jury is not required. Johnson has entered an unconditional guilty plea as provided by RCr 8.08. That plea was accepted by the trial court. Johnson’s guilt having been established, and the constitutional right to a jury trial on that issue having been eliminated, only punishment remains to be determined.
Prior to January 1, 1989, RCr 9.84(2) provided that upon entry of a guilty plea, the court could fix the penalty “except in cases involving offenses punishable by death.” Thus, as set forth in RCr 9.26(1), a jury would be “required” by RCr 9.84(2) and could only be waived with the Commonwealth’s consent.
RCr 9.84(2) no longer requires jury sentencing in cases such as the one at bar. Upon entry of his guilty plea, the defendant now “may demand that his punishment be fixed by the jury.” RCr 9.84(2). “May” is “an auxiliary verb qualifying the meaning of another verb by expressing ability, contingency, ... [or] possibility_ [Citation omitted]. Ordinarily a permissive, rather than a mandatory, term in a statute.” Bal-lentine’s Law Dictionary 785 (3d ed. 1969). Thus, jury sentencing has become permissive rather than required.
The majority states that “RCr 9.84(2) would appear to have been enacted to eliminate any possible contention that a capital defendant’s right to insist upon jury sentencing may be abridged.” That may have been true as to the pre-1989 version of the rule which made jury sentencing mandatory in death penalty cases, but certainly cannot be said of the current version. Indeed, even though the pre-1989 language seems mandatory in nature, this Court held in numerous cases that a jury could be waived. Debose v. Cowan, Ky., 490 S.W.2d 480 (1973); Bevins v. Commonwealth, Ky., 712 S.W.2d 932 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 963, 93 L.Ed.2d 1010 (1987); Hicks v. Commonwealth Ky., 388 S.W.2d 568 (1965). It is more likely, given the Court’s recognition of lack of constitutional right to jury sentencing and the numerous opinions holding that the provision of the pre-1989 version of RCr 9.84(2) could be waived, that the 1989 amendment to that rule was meant to incorporate established case law into the criminal rules.
I would hold that upon entry of an unconditional guilty plea in a death penalty case, jury sentencing is required only upon the demand of the defendant. The Commonwealth has no constitutional right to jury sentencing, nor does it have a procedural one under our criminal rules.
LEIBSON, J., joins.