(dissenting) — The majority holds that the “Cubias rule” should not apply in this case. See *744State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005). In reaching its decision, the majority observes, “[William] Van-Delft is correct that the operative distinction between [RCW 9.94A.589](l)(a) and (l)(b) is that under (l)(a) the defendant enjoys a statutory presumption of concurrent sentencing, but under (l)(b) he does not.” Majority at 742. Because I am unable to find an “operative distinction” between RCW 9.94A.589(l)(a) and (l)(b) (not set out in dissent), I see no reason why our decision in Cubias does not control our review of VanDelft’s sentence. Accordingly, I dissent.
¶25 In Cubias, we held that a trial court could impose consecutive sentences without a separate finding by a jury as to whether each count was separate and distinct. Majority at 740 (citing Cubias, 155 Wn.2d at 550). In affirming Cubias’s sentence, we held that both Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) did not have any application to consecutive sentences. Cubias, 155 Wn.2d at 554. As the majority correctly observes, the imposition of consecutive sentences “ ‘does not increase the penalty for any single underlying offense beyond the statutory maximum provided for that offense and, therefore, does not run afoul of. . . Apprendi and Blakely.’ ” Majority at 741 (quoting Cubias, 155 Wn.2d at 556).
¶26 In Cubias, we held that when a trial judge imposes consecutive sentences under (l)(b), he or she does not run afoul of Blakely. Here, we are faced with the question of whether a trial judge may impose consecutive sentences instead of a concurrent sentence under (l)(a). Thus, any departure from Cubias to invoke Blakely for sentences issued under (l)(a) depends upon finding a substantial difference between (l)(a) and (l)(b).
¶27 I am unable to find any difference between (l)(a) and (l)(b) that surmounts their similarities. The majority finds such a difference, indicating that “under (l)(a) the defendant enjoys a statutory presumption of concurrent sentenc*745ing, but under (l)(b) he does not.” Majority at 742. It derives this presumption from the language of the two subsections. Concurrent sentences are “presumed” under (l)(a) because that provision says that consecutive sentences “may” be imposed, while concurrent sentences are not “presumed” under (l)(b) because that provision says that consecutive sentences “shall” be imposed.
¶28 For the majority, the difference between the two subsections, distilled to its essence, is a presumption of concurrent sentencing. Where the statute has a presumption of concurrent sentences under (l)(a), imposing consecutive sentences triggers Blakely. But, where the statute is without a presumption of concurrent sentencing under (l)(b), that is, where it allows for either a concurrent or consecutive sentence, imposing consecutive sentences does not trigger Blakely.
¶29 The flaw in the majority’s reasoning is that our decision in Cubias did not turn upon what presumptions were found in (l)(b). It was not a critical factor. As noted above, Cubias turned upon a narrow reading of Blakely. There, we affirmed the imposition of consecutive sentences because Blakely gave instructions as to the range of only individual sentences. As the majority noted, we said in Cubias that “ ‘in both Blakely and Apprendi, the United States Supreme Court was directing its attention to the sentence on a single count of a multiple-count charge.’ ” Majority at 741 (quoting Cubias, 155 Wn.2d at 553).
¶30 I fail to understand how the presence of a presumption for concurrent sentences somehow reverses the analysis we used in Cubias. This point is underscored by the dissent in Cubias. In it, Justice Madsen took specific issue with our emphasis on the singular nature of the sentences involved in Blakely and Apprendi. See Cubias, 155 Wn.2d at 558 (Madsen, J., dissenting) (“For Sixth Amendment purposes, there is no difference between an exceptional sentence that increases the length of a sentence for one count beyond the presumptive range and an exceptional consecutive sentence that increases the presumptive length *746of incarceration.”). Her argument demonstrates the axis upon which Cubias turned: whether Blakely applies is determined by examining each sentence in isolation — not by examining an amalgamation of those sentences. Because Cubias did not turn upon the lack of a presumption of concurrent sentences, I fail to see how our analysis in it is reversed by the presence of such a presumption. I respectfully dissent.
J.M. Johnson, J., concurs with Alexander, C.J.