concurring in part and dissenting in part.
I agree with the principal opinion so far as it holds that the clarification of applicable law regarding proportionality review set out in State v. Deck, 303 S.W.3d 527, 555 (Mo. banc 2010) (Stith, J., concurring), and State v. Dorsey, 318 S.W.3d 648, 659
*631(Mo. banc 2010), does not apply retroactively.
Further, Roderick Nunley has conceded on appeal, that at the time of his guilty plea, he was aware that he had no right to jury trial on punishment under section 565.006.2. It then was settled law that a defendant had no separate Sixth Amendment right to a jury trial of punishment. Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Unlike his co-defendant, Michael Taylor, Mr. Nunley further has conceded that the purpose for which he pleaded guilty was to avoid a jury determination of punishment and that he raises no issue about the validity of his original guilty plea and waiver. Rather, his complaint is limited to claimed error in not allowing him to choose to be sentenced by a jury on remand once this Court overturned his initial death sentence.
For these reasons, I further agree with the principal opinion that, at the time of his guilty plea, Mr. Nunley validly waived his statutory right to jury sentencing and that this statutory waiver was not rendered invalid, nor was he entitled to withdraw his guilty plea simply due to the Supreme Court’s later recognition in the Apprendi-Ring-Blakely trilogy that Walton was incorrect in failing to recognize an independent Sixth Amendment right of those who plead guilty to a jury determination of the facts necessary to punishment unless conceded or unless that right is waived knowingly, voluntarily and intelligently. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
I agree with the principal opinion that this Court already has determined that under Missouri law, on remand, Mr. Nun-ley was not entitled to withdraw his previous voluntary agreement to waive his statutory right to jury trial.
I write separately only to address two narrow issues.
I. Waiver of Constitutional Right to Jury Trial under Halbert
The key issue as to which I disagree with the principal opinion is whether in Halbert v. Michigan, 545 U.S. 605, 623-24, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), the United States Supreme Court established that, in pleading guilty, one waives only those constitutional rights that are inconsistent with a guilty plea such as, in this case, the right to trial by jury on guilt but that one does not thereby waive one’s right to a jury trial on the facts necessary to punishment, and that one cannot waive such a right as to punishment before it is recognized.1
In Halbert, the defendant was denied the right to counsel on appeal under a statute that denied counsel to most of those who pleaded guilty or nolo contende-re. 545 U.S. at 612-13, 125 S.Ct. 2582. Michigan contended that even if the defendant had a constitutional right to appointed counsel, he necessarily waived that right because he knew that a Michigan statute provided that a defendant who pleads guilty or nolo contendere will not receive the assistance of counsel in applying for discretionary appeal. Michigan Comp. Laws Ann. § 770.3a (West 2000). Therefore, by pleading nolo contendere he had to know that the statute would deny him a right to court-appointed counsel, *632resulting in an implied waiver. Halbert, 545 U.S. at 623, 125 S.Ct. 2582.
Halbert held that Mr. Halbert could not have waived his constitutional right to counsel on appeal because, “[a]t the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo.” Id.
In so holding, Halbert rejected the argument made by the principal opinion, for it is the same argument made by Justice Thomas in dissent. Justice Thomas said that assuming Mr. Halbert did have a statutory right to counsel on appeal, he waived it when he decided to plead guilty with knowledge that the consequence likely would be that he would not get counsel on appeal. Id. at 637-43, 125 S.Ct. 2582 (Thomas, J., dissenting).
The principal opinion’s argument in this case similarly fails if one cannot constitutionally condition the exercise of the right to a jury trial of punishment on whether one waives a jury trial on guilt, and that is what Missouri law provided at the time of Mr. Nunley’s choice to waive a jury trial. In fact, even Justice Thomas recognized, “Whether Michigan law provides for such counsel says nothing about whether a defendant possesses (and hence can waive) a federal constitutional right to that effect. That Michigan, as a matter of state law, prohibited Halbert from receiving appointed appellate counsel if he pleaded guilty or no contest, is irrelevant to whether Hal-bert had (and could waive) an independent federal constitutional right to such counsel.” 2 Id. at 640, 125 S.Ct. 2582. Here, Mr. Nunley did not know he had, and therefore did not waive, his Sixth Amendment right to jury sentencing, for that right had not yet been recognized at the time of his plea.
As the principal opinion notes, Mr. Nun-ley does not raise this issue on appeal. Because this Court is addressing this issue in the companion case of State ex rel. Taylor v. Steele, 341 S.W.3d 634, 650-51; Id., dissenting opinion of Judge Stith, at 667-69 (Mo. banc 2011), also handed down this date, and because Mr. Nunley would be entitled to raise this issue in a separate petition for writ of habeas corpus in light of our decision in Taylor, I believe it appropriate to address it here, to the extent applicable, for a waiver of the statutory right to jury trial simply is a separate issue from whether there is a valid waiver of the constitutional right to jury trial. I do agree with the principal opinion that Mr. Nunley would have a right to make a knowing, voluntary and intelligent waiver *633of his constitutional right to jury trial, however, should he choose to do so.
II. Blakely Clarifies that a Defendant Who Pleads Guilty has a Separate Right to Jury Trial of Punishment Unless Waived
I also write separately to clarify an issue that is confused unnecessarily by the principal opinion’s citation to cases it says support the proposition that pleading guilty in itself waives one’s right to jury trial.3 The cited cases do predict erroneously that the United States Supreme Court will so hold because they were decided prior to the United States Supreme Court’s decision in Blakely. Blakely clarified what was implicit in the holdings of Apprendi and Ring; that even those who plead guilty have a separate right to jury trial on punishment — unless, of course, as discussed in detail above, that right is waived knowingly, voluntarily and intelligently. Blakely, 542 U.S. at 305-06, 124 S.Ct. 2531.
Indeed, the only one of the cases cited by the principal opinion that acknowledges Blakely explicitly holds that any statute that does not recognize the independent right of a defendant to jury fact-finding as to punishment after having pleaded guilty is unconstitutional. Piper, 709 N.W.2d at 803 (“We agree with Piper’s argument that under Ring, a capital sentencing scheme would be unconstitutional if it prevented a defendant who pleaded guilty from having alleged aggravating circumstances found by a jury”).
This confusion appears to result from the principal opinion’s initial conflating of its discussion of the question of a right to a jury trial of the facts necessary to punishment from the question of whether that right has been waived knowingly, voluntarily and intelligently, for when the principal opinion later separately addresses the issue of a constitutional right to jury sentencing, it correctly notes that “[i]n Blakely, the United States Supreme Court extended Ring by declaring that the Sixth Amendment right to jury sentencing applies even where a defendant pleads guilty. 542 U.S. at 305-06, 124 S.Ct. 2531.” Op. at 625. Accord, Taylor, 341 S.W.3d 634, 640 (“Subsequent to this Court’s holding in Whitfield, the United States Supreme Court extended the reach of Ring by declaring in Blakely v. Washington, 542 U.S. 296, 305-06 [124 S.Ct. 2531, 159 L.Ed.2d 403] (2004), that the Sixth Amendment right to jury sentencing applies even when a defendant pleads guilty”).
Further, to the extent that the principal opinion suggests that this Sixth Amendment issue was not preserved by Mr. Nun-ley because he does not cite to Blakely, I disagree. While a citation to Blakely is rather inexplicably absent, the brief does cite to Apprendi and Ring for the very proposition that he has a right to jury sentencing as to punishment, and those are the very cases cited by Blakely as requiring a jury to determine the facts necessary to impose punishment even when one pleads guilty, and the state cites to Blakely in its response to Mr. Nunley’s argument. I therefore would reach the issues *634of whether one can waive a constitutional right to jury trial of punishment and whether Mr. Nunley did so here.
In sum, I agree with the principal opinion that, if one can waive a constitutional right to a jury determination of the facts necessary to punishment before that right has been recognized, then Mr. Nunley’s concession in his brief, and in his post-conviction plea hearing before Judge O’Malley is sufficient to establish that he did so, but I believe that, under Halbert, such a waiver could not occur before the right was recognized.
. These issues are discussed in more detail in the dissenting opinion in State ex rel. Taylor v. Steele, 341 S.W.3d 634 (Mo. banc 2011) .
. See also Smith v. Yeager, 393 U.S. 122, 125, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968) (the fact that counsel said he was not sure whether there was a right to an evidentiary hearing in habeas corpus cases but if so he relinquished it did not constitute a waiver, for "[wjhatever counsel’s reasons for this obscure gesture of noblesse oblige, we cannot now ... presume that he intentionally relinquished a known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 464 (58 S.Ct. 1019, 82 L.Ed. 1461), when the right or privilege was of doubtful existence at the time of the supposed waiver ”); See also People v. Montour, 157 P.3d 489, 492 (Colo. 2007) (Colorado statute could not constitutionally link the waiver of a jury trial on punishment to the waiver of a jury trial on guilt because that would make such a waiver automatic. While a defendant may waive jury fact-finding during the punishment phase, Blakely requires that waiver to be knowingly, intelligently and separately waived); Piper, 709 N.W.2d at 821-22 (Sabers, J., dissenting) ("the waiver of a substantive right presupposes the existence of the right in the first place” so that because the required factual findings were not admitted by the defendant or found by a jury, the death sentence imposed by the judge was in violation of defendant’s Sixth Amendment rights).
. See op. at 620-21, 622, citing Colwell v. State, 118 Nev. 807, 59 P.3d 463, 473 (2002); Moore v. State, 771 N.E.2d 46, 49 (Ind.2002); South Carolina v. Downs, 361 S.C. 141, 604 S.E.2d 377, 380 (2004); State v. Piper, 709 N.W.2d 783, 806-807 (S.D.2006); Sanchez v. Superior Court, 102 Cal.App.4th 1266, 126 Cal.Rptr.2d 200 (2002). In fact, as discussed in the text above, all but Piper were decided either before Blakely or so soon after Blakely was handed down in 2004 and they did not take account of Blakely's holding. Piper actually holds that, in light of Blakely, it would violate the constitution to not give a defendant the opportunity to try punishment to the jury, or to waive that right, even when the defendant has chosen to plead guilty, as noted in the text. Piper, 709 N.W.2d at 803.