concurring in result.
T1 I agree that Murphy's case must be remanded for a hearing on the issue of mental retardation. I have serious reservations about the majority's analysis of this and another claim, and disagree with the proposed procedures to be used in deciding this and future mental retardation claims.
12 I disagree with the way in which the majority resolves issues raised by Atkins v. Virgimia.1 Atkins found executing the mentally retarded is unconstitutional. This is a fiat prohibition. Under Atkins, a mentally retarded person is not eligible for the death penalty. The Court's sense of urgency in resolving Atkins issues stems from its desire to provide trial courts guidance in upcoming jury trials; however, we should not rule so quickly that we fail to consider the requirements of Atkins or the implications of the procedures we impose. I am afraid this majority opinion makes both these mistakes.
1 3 Initially addressing the Atkins claim on post-conviction, the majority mistakenly states without citation that "[ulnder normal cireumstances" this claim would be waived.2 This is not the case. Oklahoma's post-conviction statute requires this Court to hear claims which could not have been raised on direct appeal and support a conclusion that the outcome of the trial would have been differents.3 Grounds for relief are waived if they were available to the defendant before the last date on which an application could be timely filed.4 There is no question that Atkins represents a significant change in the law. Before June 20, 2002, neither the United States Supreme Court nor this Court had held that mentally retarded persons were not eligible for the death penalty. In fact, both courts had held exactly the opposite.5 A colorable death penalty claim based on mental retardation could not have been reasonably formulated from any decision binding on any court in this state. While some intrepid attorneys persisted in raising what was then a frivolous issue, there was neither expectation nor hope that the claim could prevail, until Atkins was decided. The mental retardation issue could not have been raised in *573Murphy's direct appeal because there was no legal basis to support it, and if he is mentally retarded the outcome of the trial would as a matter of law have been different. This claim is squarely within the scope of the post-conviction act. It has not been waived and this Court must consider it on its merits.
T4 The majority opinion wants to have it both ways. The opinion first claims the issue is waived, but considers it given the "recent flurry of activity" on the issue.6 Atkins is not part of a "flurry of activity". It is binding constitutional precedent which this Court must follow. Either the issue was waived or it was not. If the issue was waived, the remainder of the majority opinion is worse than dicta-the Court is deciding a question it has no statutory authority to answer. If the issue is, as I believe, properly raised under § 1089(C), we do not need to make excuses for our decision to address this issue. In any case, the issue before us is the post-conviction claim. I understand the majority's desire to provide guidance to trial courts which will hear this issue in future cases, but the portion of the opinion dealing with trial procedure is dicta.
T5 As we address these issues, the Court has the unusual but welcome benefit of a recent, clear expression of Legislative intent. This term's passage of House Bill 2685 was intended to prohibit execution of the mentally retarded (not limit it under certain conditions, as the majority suggests in note 18). House Bill 2685 provided some definitions and standards for determining who is mentally retarded and may not be death-eligible, and the majority borrows substantially from the Bill to define mental retardation.7 While the Governor refused to sign House Bill 2635, its passage may be taken as an expression of the will of the majority of Oklaho-mans, showing that our citizens, like most of the country as reflected in Atkins, do not wish to execute the mentally retarded. I emphasize this because any procedure this Court adopts for determining mental retardation in trial settings must respect both the spirit and the letter of the prohibition against execution. The majority opinion utterly fails to reflect both the Supreme Court's intent to flatly prohibit such executions and the will of the people in this regard.
6 I am troubled by the majority's definition of mental retardation, which is also incorporated into the proposed Instruction. Like House Bill 2685, the majority requires proof that mental retardation manifested itself before the age of 18. However, this requirement standing alone is ambiguous. In footnote 19 the opinion explains "manifestation" and suggests various methods of proof. At the least this explanation should be incorporated into the body of the definition. This definition also requires proof of an IQ of no more than seventy, through a scientifically recognized and approved and "contemporary" IQ test. Footnote 21 defines "contemporary" as either a test administered after the capital crime was committed, or "one that may be understood by contemporary standards." I have no idea what this means. Taken as a whole, the definition appears to require proof of mental retardation both before (manifested before age 18) and after (contemporary test) the crime occurred.
T7 The definition states: "[Nlo person with an intelligence quotient of more than seventy, as administered by a scientifically recognized and approved intelligent quotient test, shall be eligible to be considered mentally retarded." I am concerned that this might be misunderstood as saying that anyone with an IQ test over 70 cannot claim to be mentally retarded, no matter how severely he is developmentally disabled nor how significant his limitations in adaptive functioning. A person who is virtually unable to function but has a test score of 71 may not claim to be ineligible for the death penalty *574by mental retardation. I am also concerned that this may be misinterpreted as prohibiting a defendant from raising this claim if the defendant has one test score over 70 and one under 70. These possible results do not appear consistent with the Atkins conclusions that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills."8 Atkins gave the states the task of developing appropriate enforcement procedures. In doing so, the Supreme Court surely intended states to take seriously (a) its discussion of the pertinent characteristics of mental retardation which make execution an inappropriate punishment, and (b) its conclusion that mentally retarded persons should not be executed. The majority's insistence on an IQ no greater than 70 follows the letter, but not the spirit, of Atkins. It also creates a more narrow definition than that passed by the Legislature. House Bill 2635 defined "significantly subaverage general intellectual functioning" as an IQ of 70 or below, but did not prohibit persons with higher tests from raising the issue of mental retardation, as long as they also had one IQ test with results of 70 or below, and showed significant limitations in adaptive functioning.
18 This definition also poses practical problems. If a defendant-particularly an indigent, mentally challenged one-has no school record, or is a transient, or a foreigner, or just moved to Oklahoma as an adult, there may well be no available proof of manifestation before the age of 18. This defendant would be precluded from raising mental retardation even with an IQ of 56, tested near the time of the crime, and a showing of little or no ability to function according to the enumerated categories. That is, a clearly mentally retarded adult, who was mentally retarded at the time he committed a crime, would be eligible for the death penalty simply because he had no childhood evidence to present. This conforms neither to the letter nor the spirit of the prohibition against executing mentally retarded people. I share the majority's unstated concern that murderers will suddenly claim they are mentally retarded after commission of their erimes in an effort to avoid capital punishment. However, I believe the definition of mental retardation should be flexible enough that an entire class of mentally retarded persons is not automatically (and illegally) exposed to the death penalty simply because their situation prevents them from bringing forth evidence from childhood.
19 This case is brought as a first post-conviction claim; evidence of mental retardation was presented to the jury in mitigation, but the issue of execution of the mentally retarded was not raised on appeal. Following the letter of Atkins, the majority relue-tantly agrees that Murphy is entitled to raise this issue before being executed. The opinion reasonably concludes that the mental retardation issue must be remanded to the trial court for an evidentiary hearing on the issue of mental retardation.9 However, the opinion directs the court to determine whether Murphy has raised "sufficient evidence"defined as "enough evidence to create a fact question on the issue"-of mental retardation, for the issue to be decided as a question of fact by a jury at a resentencing hearing.10 The majority would require the trial court to make findings of fact and conclusions of law determining whether the defendant has met his burden (of "sufficient evidence"), and submit those findings and conclusions to this Court, after which the parties would submit briefs on the issue.
110 In its haste to issue an opinion, the majority appears to have no real idea what the post-conviction procedure in this and similar cases will be. I agree that our capital post-conviction statute vests jurisdiction in this Court,11 and the trial court's findings of fact and conclusions of law should be filed in this Court. However, the majority's plan raises more questions than it answers. Why do we burden the trial court with the extremely nebulous phrase "sufficient evidence"? Why not simply require a defen*575dant to prove his claim in the evidentiary hearing by a preponderance of the evidence, which the majority has already adopted as the appropriate evidentiary standard? Why, after this Court receives the trial court's findings and conclusions, must we require the parties to submit briefs? The post-conviction statute refers to the trial court's determination of issues on remand as an "entry of judgment," and provides that either party may seek this Court's review of that determination within ten days.12 In the absence of such a request for review, the Legislature directs this Court to either adopt the trial court's findings, or order additional briefing.13 In contrast, the majority would have the issue briefed automatically. Is this Court planning to act as a fact-finder on the issue of mental retardation? The opinion implies that any colorable claim of mental retardation will be remanded again for jury consideration at a resentencing hearing. Why, if the trial court determines by a preponderance of the evidence that Murphy is mentally retarded and not death-eligible, must the question of mental retardation be remanded again as a jury question? If the trial court's conclusions are to have no weight, why not remand the issue to a Jury in the first place? I would adopt a simpler system.
11 I would remand this case to the trial court for an evidentiary hearing on the issue of mental retardation. If neither party seeks review of the claim, I would review the trial court's findings and conclusions and have the Court determine the issue. I see no need to automatically require additional briefing in every case. If the trial court concludes that Murphy has proved he is mentally retarded by a preponderance of the evidence, and we adopt that finding, I would remand the case for jury resentencing to life or life without parole (or judge resentencing, if both parties waive a jury proceeding). If the trial court finds Murphy has not shown retardation by a preponderance of the evidence, I would still remand the case for jury resentencing. Under those cireumstances, Murphy would be allowed to present evidence of mental retardation separately (using a preponderance of the evidence standard), and jurors would deliberate on that question before the capital sentencing trial began. If jurors find Murphy is mentally retarded, they would subsequently hear evidence on and consider only the punishments of life or life without parole. If jurors find otherwise, the capital punishment resentencing procedure would begin.
1112 I particularly disagree with the dicta on page 22, where the majority severely and unnecessarily restricts the ability of defendants to raise mental retardation on post-conviction or in pending cases. Essentially, the majority disallows any claim in which mental retardation was not previously raised in some fashion either at trial or on appeal to this Court. If a mentally retarded defendant had counsel who followed the pre-4tkins settled law, and heeded this Court's admonition not to raise every issue or "frivolous" issues, that defendant would be barred from raising this claim in a pending case. This procedure specifically allows the execution of mentally retarded defendants whose counsel failed to jump through hoops created in this opinion. This sweeping use of waiver does not comply with either the letter or spirit of Atkins or the will of the Legislature. Nor does it have any chance of passing constitutional challenges in the federal system. It also fails to conform to the plain language of the post-conviction statute, which allows for exactly this type of claim in initial or subsequent post-conviction applications.14 Further, this issue of death-eligibility is fundamental. If a defendant is not eligible for the death penalty, there should be no capital trial. I do not believe this Court can or should foree the use of procedural waiver to prevent these claims.
113 In setting forth a procedure for trial courts to use in future cases, this court should focus on the primary issue-death-eligibility. If a defendant is mentally retarded, he is not eligible for the death penalty, and the jury should not hear or consider evidence which would support a death sentence. The only possible sentences are life or life without parole. In order to assure *576that the trial is not tainted with capital-stage evidence which can only improperly appeal to jurors' emotions and passions (being irrelevant to any sentencing issue), I would require the trial court to settle the issue before the trial begins. In fairness to the State, a defendant should give notice of his intent to raise mental retardation before a jury is picked.15 The trial court should hold a pretrial evidentiary hearing at which the defendant may present evidence to support his claim of mental retardation. If the trial court finds by a preponderance of the evidence that the defendant is mentally retarded, the trial should proceed as a non-capital first degree murder case. If the trial court does not so find, then the capital case should proceed. However, before aggravating or mitigating evidence is presented in the see-ond stage, the defendant may submit evidence to the jury to support his claim that he is mentally retarded, again by a preponderance of the evidence. Jurors should deliberate on this issue immediately after presentation of this evidence; if the jury finds by a preponderance that a defendant is mentally retarded, they will consider and recommend a non-capital punishment at that time.16 The capital sentencing hearing will continue only if the jury finds a defendant has not shown he is mentally retarded.
4 14 In contrast to the procedures I would adopt as set forth above, the majority does not substantially change the current capital trial procedures. Although the majority requires prior written notice of intent to claim mental retardation, no determination of retardation is made until after the defendant has been convicted of first degree murder in the first stage of trial.17 The majority requires jurors to hear all the evidence in aggravation and mitigation at the same time, and in the same sentencing proceeding, that evidence of mental retardation is presented. Although the burden of proof differs both in degree (preponderance v. reasonable doubt) and location (defendant v. State), jurors would consider a defendant's mental retardation claim at the same time they consider imposing the death penalty, and in light of the aggravating evidence used to support that sentence. After the jury recommends a verdict, and only upon a defendant's written request made after the verdict, the trial court shall hold an "Atkins hearing" on the issue of mental retardation. No new evidence may be presented at this meaningless hearing, but each party may argue to the trial court. The trial court shall review the trial evidence of mental retardation de novo and make written findings and conclusions regarding mental retardation. If the trial court finds that the jury erred in determining a defendant was not mentally ill, the defendant may use that finding in an appeal to this Court, as part of our mandatory sentence review.
T 15 There is a huge contrast in these two approaches. The majority procedure unnecessarily wastes judicial resources without providing any significant degree of protection to either the defendant or the State. Why should the state of Oklahoma pay for a capital trial, and why should judicial resources be consumed in conducting a capital trial, where the defendant is not eligible for the death penalty? Why should witnesses, including the grieving family members of the murder victim, be forced to endure a capital second-*577stage proceeding and even give evidence regarding their loved one, when that evidence can have no relevance because the defendant is not death-eligible? Why should jurors be presented with evidence of aggravating circumstances which cannot be charged, much less found, because the defendant cannot be executed? Partly due to a mentally retarded defendant's cognitive and behavioral impairments,18 aggravating cireumstances in these cases are often horrible; the defendants frequently are poor witnesses and may not exhibit remorse, and evidence of mental retardation itself may be aggravating in some jurors' minds.19 What possible purpose is served by allowing a jury to hear evidence in aggravation, and victim impact evidence, which is irrelevant to sentencing and can only be inflammatory? The majority asks jurors to disregard what may be truly awful cireamstances of the crime, and even a genuinely unpleasant defendant, because that defendant is more likely than not retarded. Why should jurors be put in this impossible position? Finally, why is the trial court not allowed to act on the results of the majority's ill-advised post-trial Atkins hearing? In any other cireumstance where a trial court determines the jury has erred, the court may issue a judgment notwithstanding the verdict.20 Here, where the issue is of constitutional dimensions and concerns a defendant's inability to be executed, this Court deprives the trial court of any authority to remedy a clearly erroneous jury verdict, most probably caused by the irrelevant evidence in aggravation,
T 16 The answer may be found in the majority's characterization of a jury verdict ree-ommending execution for a mentally retarded person: "an excessive sentence."21 The death penalty for a mentally retarded person is not an excessive sentence-it is an illegal sentence. The majority belief otherwise reflects a profound misunderstanding of Atkins and the intent of House Bill 2635. It is unconstitutional to execute mentally retarded people. This Court is charged with devising trial and appellate procedures which will ensure that mentally retarded people are not charged with the death penalty, convicted of a capital crime, or executed. Rather than trying to serupulously fulfill this charge, the majority winks at it This Court has the opportunity to construct a simple, easily followed procedure which considers death-eligibility before the trial begins. The majority treats the mental retardation question as an afterthought, and provides jurors no opportunity to decide this question free from other evidentiary distractions. The opinion would not even allow a trial court to override a jury's mistaken finding that a defendant was not mentally retarded (and thus could not receive death)-the trial court may only state this finding, which may be used in a claim on appeal ! There can be no clearer indication that the majority is not concerned with preventing the execution of the mentally retarded. Instead, the majority sets forth procedures in pending and future cases which, taken together, allow the continued execution of mentally retarded defendants. I regret to say that I believe the majority opinion is primarily concerned with limiting the determination of mental retardation, thus limiting "those who fit within [Aikins's ] holding".22
117 I also disagree with the majority's analysis of Murphy's Apprendi23 claim that the instructions were unconstitutional because jurors were not told that aggravating cireumstances must outweigh mitigating evi*578dence beyond a reasonable doubt. I believe we must review this claim not only under Apprendi, but in light of Ring v. Arizona.24 Ring held that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt.25 In one sentence, the majority manages to both misconstrue and ignore Ring; that opinion does not "apparently" extend Apprendi to capital cases, it does so explicitly and must be part of our analysis of this claim. I do not find Murphy's claim bas merit.26 Under Oklahoma law jurors are the fact-finders throughout a capital trial.27 Ring assigns to the jury any substantive element of a capital offense, described as that which makes an increase in authorized punishment contingent on a finding of fact.28 The substantive element of capital murder in Oklahoma is the jury's finding of the aggravating circumstance necessary to support a capital sentence. The increase in punishment from life imprisonment without parole to the death penalty is contingent on the jury's factual finding of an aggravating cireumstance. Oklahoma's provision that this finding be made by jurors beyond a reasonable doubt is all that Ring requires.
. - U.S. -, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Op. at 566.
. 22 0.$.2001, § 1089(C)(1),(2). Similarly, the issue will be appropriately raised in subsequent applications for post-conviction relief, because the legal basis was previously unavailable. 22 ©.S.2001, §§ 1089(D)(8),(9).
. 22 0.$.2001, § 1089(D)(2).
. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Lambert v. State, 1999 OK CR 17, 984 P.2d 221, cert. denied, 528 U.S. 1087, 120 S.Ct. 816, 145 L.Ed.2d 687 (2000).
. Op. at 566.
. The Bill provided that a defendant had to prove mental retardation by clear and convincing evidence. This standard was found unconstitutional in the competency context, which offers disturbing parallels to this situation. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). The majority prudently uses the "preponderance" standard. This is particularly appropriate given Cooper, and the practice of the majority of states which have chosen preponderance as the proper standard in the mental retardation context.
. Atkins, - U.S. at --, 122 S.Ct. at 2250.
. 22 0.$.2001, § 1089(D)(5).
. Op. at 570.
. 22 0.$.2001, § 1089(D)(1).
. 22 0.9.2001, § 1089(D)(7).
. Id.
. 22 0.$.2001, §§ 1089(C), (D)(8),(9).
. The majority requires this, but specifically holds that failure to give written notice waives the issue. This Court has held that failure to file written notice of an insanity defense in a capital case does not justify a trial court's refusal to allow the evidence, where the State was aware well before trial of the defendant's intent to present the defense. Allen v. State, 1997 OK CR 44, 944 P.2d 934, 936. Given the importance of a mental retardation claim-a determination of death-eligibility-this imposition of a blanket waiver rule for failure to file written notice runs counter to both this Court's precedent and the Constitution.
. This provision is consistent with the Ring decision that a capital jury must make any factual findings bearing on capital punishment beyond a reasonable doubt.
. The majority prefaces the discussion of trial procedure with the clause, "Unless the issue of mental retardation is resolved prior to trial...." Op. at 568. In context, this phrase is meaningless. The majority sets forth a detailed, restrictive and exclusive scheme which utterly removes the trial court's independent authority to decide mental retardation claims. Under these circumstances, a defendant has no avenue to raise, and a trial court no authority to hear, mental retardation issues prior to trial.
. Atkins, — U.S. at —, 122 S.Ct. at 2251.
. Atkins, — U.S. at —, 122 S.Ct. at 2252. For these reasons, Atkins noted "Mentally retarded defendants in the aggregate face a special risk of wrongful execution." Id. The majority admits this possibility in footnote 24.
. 12 O.S.2001, § 698.
. Op. at 568.
. Op. at 567. In reaching this conclusion I note other phrases within the majority opinion. On page 567, the majority says Atkins "appears to be" a new rule of law. In Footnote 16, the author notes his disagreement with Afkins's inclusion of national consensus in its Eighth Amendment analysis. Also on page 567, the majority notes that the mentally retarded may commit crimes in Oklahoma, ""yet" are no longer death-eligible under Atkins.
. Apprendi v. New Jersey, 530 U.S. 466, 482-83, 120 S.Ct. 2348, 2358-59, 147 L.Ed.2d 435 (2000).
, - U.S. -, 122 S.Ct. 2428, 153 LEd.2d 556 (2002).
. Ring, - U.S. at -, -, 122 S.Ct. at 2439-40, 2443; see also Apprendi, 530 U.S. at 483-84, 120 S.Ct. at 2359 (jury must find fact authorizing greater punishment beyond a reasonable doubt). Given Ring's explicit extension of Apprendi, the majority's interpretation of Appren-di as not reaching this claim is moot. I am unable to understand the majority's comment that Apprendi itself was a 5-4 decision and, presumably, not entitled to the same weight as Supreme Court cases decided by a larger majority (like Ring). All Supreme Court decisions decided by a majority are equally binding on this Court, no maiter how little we agree with the Supreme Court's interpretations.
. See Cannon v. State, No. PCD-2002-877 (Okl. Cr. July, 18, 2002) (not for publication).
. 21 0.$.2001, §§ 701.10, TOL11.
. Ring, - US. at -, 122 S.Ct. at 2439. See also Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. at 2365, n. 19 (an increase beyond a maximum authorized statutory sentence is the functional equivalent of an element of a greater offense).