dissenting.
I concur fully in the dissenting opinion of Judge Wolff. I write separately to address two related issues.
*390 A. The Jury Must be Able to Consider Culpability in Choosiny Punishment.
First, I wish to emphasize that to preclude the jury from considering mitigating facts, including defendant’s age, is to prevent the jury from making the kind of individualized assessment of a juvenile’s culpability that the United States Supreme Court recognized in Graham v. Florida as essential to the constitutionality of sentencing a juvenile to life imprisonment. -U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
Indeed, permitting the jury (or judge) to hear mitigating evidence and to consider that evidence in deciding the severity of punishment that should be imposed is the practice in nearly every other circumstance, whether the defendant is a juvenile or an adult. In regard to all such crimes, the fact-finder is permitted to choose among sentences of different severity. Only juveniles tried as adults for first-degree murder are deprived of the fact-finder’s consideration as to whether mitigating factors affect the defendant’s culpability.
This is a violation of the Eighth Amendment for, as the United States Supreme Court stated in Graham, “[a]n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” 130 S.Ct. at 2031. It is also inconsistent with the principles underlying Missouri’s legislative admonition that the jury must be instructed to consider a defendant’s age at the time of the crime as a statutory mitigating factor in determining whether to recommend a death sentence or, instead, a sentence of life imprisonment. § 562.032.3(7). While this provision no longer is constitutional as applied to homicides committed by a juvenile, in that a sentence of death is not permitted under Roper, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the principle it reflects — that a defendant’s age may affect the defendant’s culpability and mitigate the punishment for his or her crime — has continued life and should require consideration of a defendant’s age and culpability in sentencing for a crime committed as a juvenile.
B. Apprendi Requires a Jury to Determine Facts Necessary for Eligibility for a Life Sentence rather than Treatment as a Juvenile.
Second, Missouri already recognizes that consideration of a juvenile’s age is required to make the juvenile eligible for imposition of a sentence of life without parole, for Missouri requires the judge to consider the juvenile’s culpability and age when deciding to certify the juvenile as an adult.
That is what happened here. When Antonio was arrested, he was subject to proceedings in the juvenile division of the circuit court under chapter 211, RSMo. The juvenile officer made a motion to dismiss the juvenile proceeding so that Antonio could be charged and tried as an adult. To dismiss the juvenile proceeding, the judge held a hearing to determine whether a juvenile proceeding was appropriate for him or whether the juvenile proceeding should be dismissed. To do so, the judge had to make certain findings of fact and conclusions of law.1
As a result of the dismissal of the juvenile proceedings, Antonio was “certified” to stand trial as an adult and became subject to the punishment an adult would receive for this crime, absent the death penalty-life without probation or parole.
*391A plurality of the United States Supreme Court reasoned in McKeiver v. Pennsylvania that there is no right to a jury trial within a state’s juvenile system because it would inject “the clamor of the adversary system” where it does not belong and put an end to “the idealistic prospect of an intimate, informal protective proceeding.” 403 U.S. 528, 550, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).2 It is appropriate that the factual determinations required for certification be made by the judge in the juvenile proceeding in the first instance before the defendant is to be deprived of the protections of that system. But there also is no question that these factual determinations greatly enhanced the punishment to which Antonio could be subjected.
These facts apply directly here. In many cases, Missouri’s juvenile system does allow for “an intimate, informal protective proceeding” to occur. But in the case of a 15-year-old male charged with first-degree murder for shooting a police officer — in the case of Antonio, in other words — the certification process undoubtedly is not such a process. It is the same adversarial process that will be used after the juvenile proceeding is dismissed and the child is prosecuted as an adult. In this case, and undoubtedly in most such cases where a juvenile is charged with a serious violent felony, the prosecutor wanted the juvenile to be punished for longer than six years. The state may do so, but only in a manner that preserves the right to a jury trial on the facts that can result in his punishment or would enhance his punishment.
The right to a jury is guaranteed to all adults in “serious” criminal cases by both the United States and Missouri constitutions. It is a fundamental right, premised on the jury’s traditional function of finding the essential facts necessary to impose a punishment. U.S. Const, amends. VI & XIV; Mo. Const., art. 1, secs. 18(a) and 22(a); see also Duncan v. Louisiana, 391 U.S. 145, 157-58, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Blakely v. Washington, 542 U.S. 296, 309, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); State v. Baxter, 204 S.W.3d 650, 652-53 (Mo. banc 2006).
For this reason, the United States Supreme Court has held repeatedly that it “ ‘is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring). “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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
Applying these principles, Apprendi found that it violated the Sixth Amendment right to jury trial for a judge, rather than the jury, to make the factual findings that allowed the judge to sentence the defendant to a 12-year term, because without the trial judge’s finding, the defendant could have received no more than a 10-*392year-term. 530 U.S. at 471, 476-97, 120 S.Ct. 2348.
The Supreme Court has extended Ap-prendi’s rationale several times. Blakely held that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (emphasis added). The defendant in Blakely pleaded guilty to second-degree kidnapping involving the use of a firearm. Id. at 299, 124 S.Ct. 2531. He did not plead guilty to any additional facts. Washington’s sentencing reform act specified that the “standard range” of punishment the defendant should receive for his crime was 49 to 53 months in prison but allowed the trial judge to impose a sentence up to 120 months if he found “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ” Id., quoting Wash. Rev.Code Ann. § 9.94A.120 (2000). The judge eventually issued 32 findings of fact, concluded that the defendant had acted with “deliberate cruelty” and sentenced him to 90 months in prison. Id. at 300-01, 124 S.Ct. 2531.
Even though this sentence was lower than the maximum 120-month sentence allowed under Washington law, Blakely found that the trial judge’s sentence was “beyond the prescribed statutory maximum” because the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted, by the defendant.” Id. at 303, 124 S.Ct. 2531 (emphasis in original).3
More recently, the United States Supreme Court invalidated California’s determinate sentencing law, which allowed trial courts to impose longer or shorter prison sentences than the “middle term” of sentences if the court found circumstances in aggravation or mitigation. Cunningham v. California, 549 U.S. 270, 277, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (internal citations omitted). The Court reasoned that if “the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Id. at 290, 127 S.Ct. 856.
The principal opinion says these principles have no application here because Missouri’s certification procedure does not involve any findings of fact that change the statutory maximum that a defendant such as Antonio can receive, but, instead, the findings in a certification proceeding merely serve to transfer “jurisdiction” from the juvenile court to a court of general jurisdiction, although both juvenile and adult crimes are prosecuted in different divisions of the same court, the circuit court. Mo. Const, art. V, § 14.
The principal opinion’s holding that a judge’s decision on certification is merely a decision as to which court has jurisdiction over the defendant dramatically oversimplifies what is occurring. In fact, the principal opinion later so argues, slip op. at 14-15, if consideration of a defendant’s culpability is required, the judge satisfies that requirement in the certification process. The principal opinion, therefore, seeks to have it both ways. But if the certification *393is intended to substitute for jury consideration of culpability, then it violates Ap-prendi and, if not, then there is no consideration of these factors in determining guilt and punishment, violating Graham.
Although certification occurs before rather than after the jury trial, by creating a certification procedure for juveniles under the age of 17 years, the Missouri legislature required that additional facts be found regarding these juveniles and their alleged offenses. The statute shows a clear legislative recognition that juveniles are different and that a decision as to the length of their punishment should include a determination of certain criteria. See § 211.071.6, RSMo 2000.4
Apprendi mandates that “the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494, 120 S.Ct. 2348. Under Missouri’s certification proceeding, a defendant under the age of 17 years either receives a “sentence” that lasts, at most, until he or she turns 21 years old or receives a sentence that potentially extends for his or her entire life. § 211.071, RSMo Supp.2009.
The latter is what happened here. A judge in the juvenile division of the circuit court held that Antonio should be certified as an adult — and subjected to a life sentence without parole. In so doing, he made the following findings of fact as to issues set out in the certification statute: the crime alleged involved “viciousness, force and violence;” Antonio had a “repetitive pattern of offenses;” he was “both sophisticated and streetwise” and tested positive for marijuana when he was arrested; he had no “extreme emotional problems” or “diagnosed learning disability;” he had a good relationship with both parents; insufficient time existed to rehabilitate Antonio in the juvenile justice system because the division of youth services is not required to retain juveniles after they reach the age of 18, and, in the court’s experience, the division was not likely to request extension of its jurisdiction past the age of 18; the juvenile justice system had no suitable programs and facilities for Antonio; and he was beyond rehabilitation under the juvenile code.
*394Antonio was 15 years old when he killed Norvelle Brown. These multiple findings of fact increased the possible sentence he could receive from a mere six years to an entire lifetime in prison.
The principal opinion argues further that Apprendi does not prevent a court from exercising its discretion in imposing a judgment within the statutory range because the punishment for first degree murder is life without parole. As the United States Supreme Court has máde clear in Blakely, the relevant statutory maximum is not the height of the statutory range provided for by the legislature but rather the maximum sentence a judge may impose on a particular defendant based on facts that are found by a jury. 542 U.S. at 303-04, 124 S.Ct. 2531.
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), cited by the principal opinion, does not impinge on this analysis; it requires an inquiry as to “whether the finding of a particular fact was understood as within ‘the domain of the jury ... by those who framed the Bill of Rights.’ ” 129 S.Ct. at 717, quoting Harris v. United States, 536 U.S. 545, 557, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (deletion in original). Nonetheless, Ice itself reasons that the Apprendi line of decisions are focused on any judicial fact-finding that increases “the maximum punishment authorized for a statutory offense.” 129 S.Ct. at 714. Ice further notes that these decisions have not been extended “beyond the offense-specific context that supplied the historic grounding for the decisions.” Id.
But, unlike the consecutive/concurrent sentencing issue in Ice5 the decision in this case — whether a juvenile’s sentence such as Antonio’s will be for six years or for his life — is an “offense-specific” decision. The certification procedure allows a trial judge to consider any criteria the judge sees fit, including the “seriousness of the offense alleged,” “[wjhether the offense alleged involved viciousness, force and violence,” and “[wjhether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted.” § 211.071.6.
Moreover, at common law, juveniles were treated the same as adults, so it is impossible for the framers of the Bill of Rights to have taken into account special fact-finding procedures for juveniles, such as certification. See In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (noting that the juvenile court movement began in 1889 in Illinois and since had been adopted by every state, the District of Columbia and Puerto Rico). What is clear from the Apprendi line of cases is that the common law required that any fact necessary for imposing punishment must be found by a jury. As juveniles were treated the same as adults at common law, all facts necessary for their punishment, therefore, were required to be found by a jury. See State v. Rudy B., 149 N.M. 22, 243 P.3d 726 (2010) (Chavez, J., dissenting).
When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed. The jury’s verdict alone in this prosecution is insufficient to *395punish a 15-year-old defendant such as Antonio with a lifetime in prison. To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary. To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.6
I do not mean to suggest that the state is required to hold a separate jury proceeding for certification. The state undoubtedly has an interest in obtaining the certification decision expeditiously, as it did in this case, and to conduct proceedings in the juvenile division of the circuit court without a jury. But the judge’s fact-finding should not be the final word in the prosecution of Antonio as an adult. If the judge finds sufficient facts to certify the defendant as it did in this case, the state should be required to present those certification facts to the jury and have the jury decide those facts before it determines whether Antonio is guilty of this adult offense of murder.
I respectfully dissent.
. The applicable statutory criteria are listed in their entirety in footnote 4.
. The concurring opinion in McKeiver further notes that the purpose of the juvenile system is to focus on rehabilitating the juvenile and that the creation of the juvenile system reflects "state legislative judgment not to stigmatize the juvenile delinquent by branding him a criminal." Id. at 552, 91 S.Ct. 1976 (White, J., concurring). Justice White also noted that the juvenile system serves as a "buffer to the corrupt or overzealous prosecutor.” Id.
. The Supreme Court has held that all aggravating circumstances in a death penalty case must be decided by a jury and not a judge. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Court reasoned that "[t]he right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant's sentence by two years, but not the fact-finding necessary to put him to death.'' Id. at 609, 122 S.Ct. 2428.
. Section 211.071.6, RSMo 2000 provides:
A written report shall be prepared in accordance with this chapter developing fully all available information relevant to the criteria which shall be considered by the court in determining whether the child is a proper subject to be dealt with under the provisions of this chapter and whether there are reasonable prospects of rehabilitation within the juvenile justice system. These criteria shall include but not be limited to:
(1) The seriousness of the offense alleged and whether the protection of the community requires transfer to the court of general jurisdiction;
(2) Whether the offense alleged involved viciousness, force and violence;
(3) Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted;
(4) Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code;
(5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements;
(6) The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living;
(7) The age of the child;
(8) The program and facilities available to the juvenile court in considering disposition;
(9) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court; and
(10) Racial disparity in certification.
. In Ice, the Supreme Court upheld an Oregon statute that allowed a trial judge to impose consecutive sentences on an offender when the judge found "statutorily prescribed facts,” such as that the offender had a " ‘willingness to commit more than one ... offense' during each criminal episode, and his conduct 'caused or created a risk of causing greater, qualitatively different loss, injury, or harm to the victim.’” 129 S.Ct. at 715-16 (citations omitted).
. See Cunningham, 549 U.S. at 290, 127 S.Ct. 856 ("If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied”); Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (noting that historically "trial by jury has been understood to require that 'the truth of every accusation, whether preferred in the shape of indictment, the information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighb-ours (quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)) (emphasis and changes in original).