(dissenting) — Breedlove’s exceptional sentence was based on a single “finding” of the trial court: “See stipulated agreement.” Clerk’s Papers (CP) at 57. Breedlove’s stipulation states that he is stipulating to the sentence to avoid substantial risk of conviction and sentence to a greater term of confinement. CP at 53 (Def.’s Stipulation to Exceptional Sentence (Sept. 5, 1996) at 2, ¶ 6). The issue is therefore whether this finding and stipulation are sufficient to comply with the Sentencing Reform Act of 1981 (SRA) which requires a substantial and compelling reason to exceed the sentencing range the Legislature has determined to be the presumptive standard.
A plea bargain to a sentence not in compliance with the law will not be enforced. In re Personal Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991) (sentence imposed pursuant to plea bargain must be statutorily authorized; defendant cannot agree to be punished more than the legislature has allowed); State v. Miller, 110 Wn.2d 528, 538, 756 P.2d 122 (1988) (Durham, J., concurring in result) (“There simply is no credible legal argument that can be made for the proposition that a court [ ] may exceed its statutory sentencing authority in order to enforce the terms of a plea agreement.”) (citation omitted); In re Personal Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980) (plea agreement cannot exceed statutory authority *315given to court). The fact that the defendant had two years of college and paralegal training (Majority at 302) does not change the statutory sentencing requirement.5
The SRA sets out the standard sentencing range. It prohibits a sentence outside that range except where the trial court “finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.120(2).
In most cases the SRA contemplates imposition of the standard range sentence, as that range is “a legislative determination of the applicable punishment range for the crime as ordinarily committed.” State v. Parker, 132 Wn.2d 182, 186-87, 937 P.2d 575 (1997).
Clearly, if the judge imposed an exceptional sentence solely on the basis of this plea agreement, it would be invalid. In re Personal Restraint of Moore, 116 Wn.2d at 38. This being the case, it must follow “substantial and compelling reasons” justifying imposition of an exceptional sentence cannot include the plea agreement itself. The reasoning of the majority is therefore circular when it holds “[wjhere the parties agree that an exceptional sentence is justified, the purposes of the SRA are generally served by accepting the agreement as a substantial and compelling reason for imposing an exceptional sentence.” Majority at 309.
The majority speculates as to other reasons that may have been in the minds of the parties or the court at the time that this plea agreement was made. Majority at 310 (“The parties appear to have recognized the fairness of the sentence in light of the crime and Breedlove’s criminal history. Furthermore, the trial court determined that the 20-*316year sentence was appropriate, considering the circumstances of the crime.”) (emphasis added). However, the actual findings of the trial court provide no basis for the exceptional sentence other than the stipulation, which is as inadequate to meet the statutory standard as is the plea agreement of which it is a part. As a matter of preestablished law, a stipulation to an exceptional sentence cannot be a compelling and substantial reason justifying the exceptional sentence.
The majority notes the prosecutor’s right under the SRA to recommend a sentence outside the guideline. Majority at 309 (citing RCW 9.94A.080(3); State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 (1997)).6 However, this simply reflects a right of the prosecutor, not an obligation of the court.
The majority relies upon three cases to support its holding, none from this court, and, in the end, none satisfying.
State v. Cooper, 63 Wn. App. 8, 13, 816 P.2d 734 (1991): Unlike the case at bar, the trial judge entered specific conclusions of law supporting his decision to impose an exceptional sentence. Thus Cooper is inapposite.
State v. Hilyard, 63 Wn. App. 413, 417, 819 P.2d 809 (1991): The trial court entered a written conclusion “ ‘that an exceptional sentence is justified on the facts and also due to the stipulation of parties in plea negotiations per RCW 9.94A.080,’ ” (quoting trial court’s conclusions of law) (emphasis added). Affirming, the Court of Appeals simply quotes the statutory language of RCW 9.94A.080(3) *317that an exceptional sentence may be part of the plea agreement. Hilyard, 63 Wn. App. at 418. Unconsidered is the legal question before this court: Is a stipulation by itself a substantial and compelling reason to go beyond the SRA?
Finally, the majority relies on State v. Givens, 544 N.W.2d 774 (Minn. 1996). There the Minnesota court noted that the exceptional sentence could be affirmed on the grounds that the victim was particularly vulnerable due to age, a specific factor authorizing an exceptional sentence under the Minnesota statute, and a finding made by the Minnesota trial court judge. Givens, 544 N.W.2d at 775-76. The court did however opine a criminal defendant could make a knowing, intelligent, and voluntary waiver of his statutory sentencing rights. Id. at 777. But in our state it is settled that even a knowing, intelligent, and voluntary waiver of a defendant’s statutory sentencing rights will not authorize the sentencing court to depart from the statute. In re Personal Restraint of Moore, 116 Wn.2d at 38; In re Personal Restraint of Gardner, 94 Wn.2d at 507.
As our majority concludes a stipulation equates to a substantial and compelling reason for imposing an exceptional sentence, Majority at 309, it is interesting to note the Minnesota court held “an attempt ‘by the parties to limit sentence duration does not create a “substantial and compelling circumstance” which may be relied upon as justifying a departure from the Guidelines.’ ” Givens, 544 N.W.2d at 777 (quoting State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1991), overruled on other grounds by Givens, 544 N.W.2d at 777 n.4).7
The majority fails to credit the distinction between the rights of the parties to a plea agreement to contract as they see fit and the obligations placed by statute upon the trial *318court to impose a sentence which conforms to legal standards. Here the trial court set a sentence outside the statutory guidelines based solely on the plea agreement. The SRA’s requirement that a judge set a sentence outside its guidelines only for substantial and compelling reasons is not satisfied by a plea agreement. Rather, such a sentence may be imposed only upon a finding of the trial court judge that such reasons do exist and the exceptional sentence is imposed based on criteria set forth in the SRA.8
The remedy is not new findings to justify an erroneous result, but lawful imposition of sentence based upon the findings actually made.
The majority notes that Breedlove proceeded pro se “but with standby counsel available.” Majority at 301. At the session where the court accepted Breedlove’s stipulation to the exceptional sentence, Breedlove was in custody and his standby counsel was not present. State’s Resp. to Personal Restraint Pet. app. C at 2 (Pierce County No. 92-1-03059-6, Report of Proceedings (Sept. 5, 1996)). As the record shows, the only legal advice Breedlove received in preparing his plea came from the prosecuting attorney. Id. at 3. At one point, albeit not with regard to the stipulation, Breedlove even mentioned he was acting “on advice of Counsel,” referring to the prosecutor. Id. at 27.
The statute states,
The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor will do any of the following
(3) Recommend a particular sentence outside of the sentence range.
RCW 9.94A.080 (emphasis added).
In Lee we said, “Agreements to forgo seeking an exceptional sentence, to decline prosecuting all offenses, to pay restitution on uncharged crimes, and to waive the right to appeal are all permissible components of valid plea agreements.” State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 (1997) (emphasis added).
The Givens’ court writes, “To the extent that State v. Garcia, 302 N.W.2d 643 (Minn. 1981), is inconsistent, it is overruled.” State v. Givens, 544 N.W.2d 774, 777 n.4. But it is clear that the Givens’ court specifically held that the question before it was not whether a plea agreement could he a substantial and compelling reason to depart from sentencing guidelines, and therefore that conclusion in Garcia was not overruled. Id. at 777. See State v. Butterfield, 555 N.W.2d 526, 533 (Minn. 1996) (noting that Garcia was overturned on question of waiver).
The majority recognizes this failing, and remands for an entry of findings. Majority at 311. But it opines, “There is no miscarriage of justice where the sentence imposed is the precise sentence requested by the defendant.” Majority at 311. This is nothing more than a one sentence summation of the majority’s entire premise, that a defendant’s stipulation to an exceptional sentence is itself a compelling and substantial reason to impose an exceptional sentence.