¶32 The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant. I disagree. TheSixth Amendment prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296, 305,124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403 (2004). An exceptional minimum sentence is a penalty. And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists. Consequently, a judge cannot impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.
¶33 Washington's indeterminate sentencing scheme requires a sentencing court to impose a maximum and a minimum term. See RCW 9.94A.712. The court must impose a maximum term of the "statutory maximum sentence for the offense." RCW 9.94A.712(3). And the court must impose a minimum term "within the standard sentence range for the offense," id., unless an aggravating factor exists, in which case the court may impose an exceptional minimum term. An offender serving an indeterminate sentence becomes eligible for conditional release only upon completion of his minimum term.
¶34 John Mark Clarke was convicted of two counts of second degree rape. An offender convicted of second degree rape must receive an indeterminate sentence. See RCW 9.94A.712(1)(a)(i). The maximum sentence for second degree rape is life imprisonment and the standard range minimum sentence is 102 to 136 months. The sentencing court imposed a maximum sentence of life imprisonment. However, it imposed an exceptional minimum sentence of 204 months because the judge found two aggravating factors. Neither aggravating factor was admitted by Clarke or found by the jury.
¶35 The Sixth Amendment guarantees a criminal defendant the right to a jury trial. U.S. CONST. amend. VI. This *Page 898 right entitles a criminal defendant to a jury determination of every contested fact authorizing a punishment. See United Statesv. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). "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 v. New Jersey, 530 U.S. 466, 490,120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The "statutory maximum" sentence is "the maximum sentence a judge may imposesolely on the basis of the facts reflected in the jury verdictor admitted by the defendant." Blakely, 542 U.S. at 303. So, a judge may impose a punishment only if it is authorized by the facts found by the jury or admitted by the defendant.
¶36 An exceptional minimum sentence is a punishment. And Washington law authorizes a judge to impose an exceptional minimum sentence only if an aggravating factor exists. See RCW9.94A.535 and 9.94A.712(3). Under Blakely a judge may impose an exceptional minimum sentence only if the jury finds or the defendant admits an aggravating factor. Here, the sentencing court relied on aggravating factors neither found by the jury nor admitted by Clarke. Therefore, Clarke's exceptional minimum sentence is invalid.
¶37 The majority contends Clarke's exceptional minimum sentence "is irrelevant under Blakely analysis because the relevant statutory maximum for Apprendi purposes is life imprisonment." Majority at 891. The majority is incorrect. UnderBlakely, a court cannot impose any punishment not authorized by the jury verdict or the defendant's admissions. "A defendant may not be `exposed . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.'" Ring v. Arizona, 536 U.S. 584, 602,122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (emphasis omitted) (quotingApprendi, 530 U.S. at 483). The "relevant statutory maximum" is the "maximum punishment" the sentencing court is authorized to impose "[b]ased solely on the jury's verdict *Page 899 finding." Ring, 536 U.S. at 597. In other words, the "relevant statutory maximum" was a maximum term of life imprisonment and aminimum term of 136 months.
¶38 Apparently, the majority believes an exceptional minimum sentence is not a punishment. I find this incredible. Conditional release is no guaranty. But it is a prisoner's equivalent to Pascal's Wager: "If you gain, you gain all; if you lose, you lose nothing." Blaise Pascal, Pensées (1670). A prisoner treasures such hope. Any delay is punishment of the keenest sort.
¶39 Indeed, the Sixth Amendment may permit a court to impose a mandatory minimum sentence on the basis of judicial fact-finding. But only when the facts found by the jury or admitted by the defendant already authorized the judge to impose the mandatoryminimum sentence. The question "is one not of form, but of effect." Apprendi, 530 U.S. at 494. "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Ring,536 U.S. at 602.
¶40 The mandatory minimum sentencing scheme at issue inMcMillan v. Pennsylvania passed Sixth Amendment muster because "it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding." 477 U.S. 79, 88, 106 S. Ct. 2411,91 L. Ed. 2d 67 (1986). Likewise, the court upheld a mandatory minimum sentencing scheme in Harris v. United States because it "does not authorize the judge to impose `steeply higher penalties' — or higher penalties at all — once the facts in question are found." 536 U.S. 545, 554, 122 S. Ct. 2406,153 L. Ed. 2d 524 (2002). Here, the same is not the case.
¶41 The facts found by the jury did not authorize the sentencing court to impose an exceptional minimum sentence. The jury found no aggravating factors. And under Washington law, a court cannot impose an exceptional minimum sentence unless an aggravating factor exists. Because an exceptional minimum sentence is indisputably *Page 900 a punishment, the Sixth Amendment prohibited the sentencing court from finding the aggravating factors necessary to support Clarke's exceptional minimum sentence.
¶42 Accordingly, I dissent.
*Page 1001ALEXANDER, C.J., concurs with SANDERS, J.