¶31 (dissenting) — The majority denies Darrell Gregory Jones’s and Reginald Thomas’s right to have a “jury find the existence of ‘any particular fact’ that the law makes essential to [their] punishment,” United States v. Booker, 543 U.S. 220, 232, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (internal quotation marks omitted) (quoting Blakely v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)), as the Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 244. Here the fact of a prior conviction doesn’t tell us whether these defendants committed the current offense while on community placement. That sentencing factor must he proved to a jury.
Sanders, J.I
¶32 The majority attempts to circumvent the Sixth Amendment by claiming a defendant’s community placement status is “ ‘intimately related’ ” to a prior conviction, whereas a prior conviction need not be proved to the jury. Majority at 241 (quoting United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005)). However, instead of inquiring whether community placement status is intimately related to a prior conviction — which it is not — the constitution limits our inquiry to whether community placement is itself a prior conviction. If not, the fact must be proved to a jury.
*249f 33 The majority imprudently constructs its broad view of “prior conviction” by expanding on the rule announced in Almendarez-Torres v. United States9 that a prior conviction need not be proved to a jury. Majority at 239 (stating a central issue is the “breadth of the Almendarez-Torres prior conviction exception”). Although this case is inapposite to the issue here, it is “at best an exceptional departure from . . . historic practice,” Apprendi v. New Jersey,10 with little or no precedential worth. 530 U.S. at 488-90 (describing Almendarez-Torres as a “narrow” or “limited” exception). The Supreme Court never overruled AlmendarezTorres because its validity was never at issue:
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.
Id. at 489-90 (emphasis added) (footnote omitted). Although the Supreme Court has expressly limited Almendarez-Torres to its “unique facts,” these “unique facts” are not present here.11 Furthermore, Almendarez-Torres’s continuing legitimacy is also problematic after Justice Clarence Thomas explained in Apprendi he should have voted with the dissent in Almendarez-Torres, a 5-4 decision.
*250Id. at 520-21 (Thomas, J., concurring); see also State v. Wheeler, 145 Wn.2d 116, 129-31, 34 P.3d 799 (2001) (Sanders, J., dissenting) (discussing other reasons to doubt whether Almendarez-Torres is good law).
¶34 But even reading Almendarez-Torres as good law to exempt evidence of a prior conviction from the Sixth Amendment right to a jury trial, we must ask whether the sentencing judges here were simply relying on a prior conviction or exceeded their authority by considering other alleged facts beyond the fact of a conviction. See Blakely, 542 U.S. at 304 (“When a judge inflicts punishment that the jury’s verdict alone does not allow,... the judge exceeds his proper authority.”).
II
¶35 Certainly whether a defendant is on community placement at any given point in time is not the same as the fact of a prior conviction. As the Court of Appeals demonstrated, whether a defendant is actually on community placement cannot be determined from the prior conviction itself:
More importantly, whether one convicted of an offense is on community placement or community custody at the time of the current offense cannot be determined from the fact of a prior conviction. Too many variables are involved.
For example, a defendant may receive credit for precon-viction incarceration, the length of which may not be specified in the judgment and sentence. The defendant may receive additional credit for preconviction incarceration if the local detention facility awarded him good conduct time. And even if both of these determinations are in the relevant judgment and sentence, there is no possible way for the sentence to reflect whether the defendant will eventually become entitled to “[e]arned release time” under RCW 9.94A.728, which may be as much as 50 percent of the sentence imposed. Moreover, under RCW 9.94A.728(2)(d), the [Department of Corrections (DOC)] may deny release to community custody status for some offenses even if a defendant has obtained “earned release” if the *251DOC does not approve of the defendant’s living arrangements. Thus, the fact of the prior conviction does not establish when community placement actually begins.
When community placement ends can also vary. Under RCW 9.94A.715(1), defendants may receive community custody in terms of a range of months “or up to the period of earned release . . . whichever is longer.” The high and low end of the range can differ by as much as two years. Under RCW 9.94A.715(4), it is the DOC, not the sentencing court, that determines where in the range the defendant’s term falls.
State v. Jones, 126 Wn. App. 136, 143-44, 107 P.3d 755 (2005) (footnotes omitted) (first and third alterations in original). These numerous factors require the trial court to look beyond the prior conviction to determine the actual facts. Unlike a prior conviction, a jury has never previously determined that these defendants were on community placement at any particular point in time. Therefore, the Sixth Amendment requires a jury, not the judge, to find whether Jones and Thomas were on community placement when their offenses were committed.
¶36 Sixth Amendment rights are violated when we allow the “ ‘legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Apprendi, 530 U.S. at 490 (quoting Jones v. United States, 526 U.S. 227, 252, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J., concurring)).
¶37 Accordingly, I dissent.
Madsen, J., concurs with Sanders, J.
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
530 U.S. 466, 487, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Almendarez-Torres pleaded guilty to being in the United States after being deported under 8 U.S.C. § 1326(a). Almendarez-Torres, 523 U.S. at 227. This crime carried a maximum penalty of two years, but the government sought punishment under § 1326(b), which allowed a sentence up to 20 years if the defendant had been deported after an aggravated felony conviction. Id. In Apprendi, the Court noted Almendarez-Torres “admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court.” Apprendi, 530 U.S. at 488.