concurring.
¶ 1 I agree with the Court’s resolution of this ease and the procedures to be used in the proceeding below in all respects, except one. I disagree with requiring the trial court to sentence Lambert to life without parole if he is found to be mentally retarded. I believe this violates Lambert’s rights to due process and equal protection of the law.1 If Lambert is mentally retarded and ineligible for execution, he should be sentenced according to the law governing non-capital first degree murder cases, which provides that he may receive either life imprisonment or life without parole.2 Oklahoma law provides that, on a remand for resentencing, a non-capital defendant has the right to request a jury for the new sentencing proceeding.3 I do not believe this Court can lawfully take away a defendant’s right to jury sentencing on remand.
. U.S. Const., Amend. V, XIV; Okla. Const. Art. 2, § 7.
. 21 O.S.2001, § 701.9. No evidence in aggravation or mitigation, or victim impact evidence should be considered. Malone v. State, 2002 OK CR 34, 58 P.3d 208, 210; Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 422; 22 O.S.2001, § 984.1.
.22 O.S.2001, § 929(B)(2)(resentencing in non-capital cases). A capital defendant also has the right to jury resentencing proceeding on remand. 21 O.S.2001, § 701.10a.