¶26 (dissenting) — On the night of January 21, 1998, Corey Beito raped 14-year-old Jessica Seim and then strangled her to death using his hands and a belt. He subsequently stuffed her body and other evidence of his crimes into a garbage can, which he locked inside a backyard tool shed. Beito confessed to these events several days later in a taped statement made to the police. He ultimately pleaded guilty to a murder charge (thereby avoiding a jury trial) and expressly acknowledged the State would seek an exceptional sentence.
¶27 Nevertheless, the majority would overturn Beito’s exceptional sentence because of the State’s failure to submit to a jury the aggravating factor upon which the sentencing court relied in imposing the 504-month exceptional sentence. I conclude that this was not error where Beito chose to avoid a jury trial by pleading guilty to murder and stipulating to the relevant facts. If error is found, it is clearly harmless and not such error to merit overturning Beito’s exceptional sentence. I dissent.
¶28 Although Beito was originally charged with first degree aggravated murder, the State amended the information to the lesser charge of first degree murder after plea negotiations pursuant to which Beito agreed to plead guilty. In the plea agreement for the lesser murder charge, Beito acknowledged that he understood that the State would seek an exceptional sentence. Beito also stipulated to facts establishing the elements of first and second degree rape, stipulated that he committed third degree rape of a child, and acknowledged the facts upon which the sentencing court relied in imposing an exceptional sentence on three separate occasions.5 That is, Beito either stipulated to or *510acknowledged the facts that allowed the sentencing court to impose an exceptional sentence of 504 months based on its finding that rape of a child closely connected to the murder of that child amounted to a substantial and compelling basis to support an exceptional sentence.
¶29 The majority concludes that harmless error analysis does not apply to errors such as the one that allegedly occurred in Beito’s sentencing. Majority at 500. It bases this conclusion on the fact that the exceptional sentencing statute at the time of Beito’s offense required the trial court, not a jury, to find aggravating factors by a preponderance of the evidence. In re Pers. Restraint of Hall, 163 Wn.2d 346, 355, 181 P.3d 799 (2008). This requirement, the majority reasons, conflicts with the Blakely ¡Apprendi rule that a jury, not the trial court, must find beyond a reasonable doubt any aggravating factors that justify any upward departure from standard sentencing ranges. See id. at 348 n.l (citing Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)); id. at 351 (quoting Washington v. Recuenco, 548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II)). Relying on language from this court that indicates that “it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury,” State v. Recuenco, 163 Wn.2d 428, 442, 180 P.3d 1276 (2008) (Recuenco III), the majority concludes that harmless error analysis does not apply here.
¶30 However, it bears emphasis that Beito was not sentenced “for a crime not charged.” Id. The second amended information to which Beito pleaded guilty included a charge of first degree murder. He was sentenced for that crime. As part of his plea agreement, Beito agreed that “[t]he Court may consider the certificate of probable cause as well as the terms of Appendix C to form a basis for ... my sentencing.” Clerk’s Papers at 79. The certificate *511of probable cause, in turn, included facts sufficient to establish third degree rape of a child, id. at 81-82. Appendix C includes specific acknowledgement that “the crime of Rape of a Child Third Degree was committed,” id. at 87. Beito was not sentenced for a crime not charged, but rather sentenced for first degree murder, as charged, with an exceptional 504-month sentence imposed on the basis of those stipulated and acknowledged facts. Thus, the holding in Recuenco III that it is never harmless error to sentence a defendant for a crime not charged is not relevant.
¶31 The majority also relies on Hall, 163 Wn.2d 346. Majority at 504. The application of the Blakely/Apprendi rule in Hall is easily distinguishable. In Hall, the defendant did not enter a guilty plea like Beito here; rather, Hall was convicted by a jury. Hall, 163 Wn.2d at 349. The holding in that case applies only to cases in which the defendant has not waived his right to a jury trial by stipulating to the relevant facts or consenting to judicial fact finding. The court in Hall conceded this limitation. Id. at 352 n.6 (“we do not decide ... the effect of a procedural inability to obtain a constitutionally valid jury finding when a defendant expressly waived his or her Apprendi/Blakely Sixth Amendment rights [to a jury trial]”); see also Recuenco III, 163 Wn.2d at 442 (concluding only that harmless error analysis does not apply when a defendant has not waived those rights, not concluding that harmless error is not appropriate when the defendant has waived a jury).
¶32 Here, in contrast to the defendants in both Hall and Recuenco III, Beito did waive his right to a jury. Rather than risk facing a jury trial with these facts, Beito stipulated that he strangled Ms. Seim to death and that he committed third degree rape of a child against her. Beito further agreed that the sentencing court could consider facts as described in the certificate of probable cause, multiple witness statements, and the autopsy report, as well as lists and photos of physical evidence. As agreed, the sentencing court relied on these stipulated and acknowl*512edged facts in imposing the exceptional sentence. Hence, given that Beito waived his Apprendi/Blakely jury rights, Beito’s exceptional sentence necessarily was based on stipulated facts not facts found by a jury. Hall is inapposite.
¶33 I would conclude that harmless error analysis does apply to cases in which a criminal defendant has waived his right to a jury trial by stipulating to the relevant facts or consenting to judicial fact finding. The United States Supreme Court has held that “the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal.” Recuenco II, 548 U.S. at 218. Reversal is warranted only when such an error “necessarily render [s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (emphasis omitted) (failure to submit an element to the jury did not “ ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings’ ” when evidence supporting the element was “ ‘overwhelming’ ” (internal quotation marks omitted) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997))). That is, “ ‘a constitutional error is harmless: [if] it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Recuenco III, 163 Wn.2d at 448 (Fairhurst, J., dissenting) (alteration in original) (internal quotation marks omitted) (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)).
¶34 If the failure of the State to submit to a jury the aggravating factor at issue in this case was error,6 it did not render Beito’s trial fundamentally unfair or an unreliable vehicle for determining his guilt, nor did it contribute to the verdict obtained. Indeed, Beito readily admitted to his guilt *513in the plea agreement and stipulated to the evidence used by the sentencing court to sustain the exceptional sentence — that evidence being the fact that he raped Ms. Seim on the same night just before he killed her, documented physical evidence and facts as laid out in the certificate of probable cause, witness statements, and the autopsy report. This evidence is surely “overwhelming” evidence of his guilt and of the existence of the aggravating factor to meet the evidentiary standard described in Neder and Johnson. The exceptional sentence based on that evidence is thus not “the equivalent of a directed verdict of guilt on an offense . . . greater than the one for which [he was] convicted . . . .” Recuenco II, 548 U.S. at 221. Beito had already stipulated to his culpability with respect to the greater “offense”: that being that he committed third degree rape of a child against the victim under circumstances described by stipulated facts and in acknowledged evidence, as part of his plea agreement. The alleged error is thus harmless, and the exceptional sentence that Beito earned for his gruesome crimes should be upheld.
¶35 Adding support to this conclusion is an examination of the history of the application of harmless error analysis in Washington as laid out in Recuenco III by Justice Fairhurst in her dissent. 163 Wn.2d at 444-45 (Fairhurst, J., dissenting) (tracing the application of harmless error analysis in Washington all the way back to the Territorial Code of 1881 and concluding that “the jury trial right does not prohibit applying harmless error analysis to . . . the failure to submit a sentencing factor to the jury”). This historic assessment is complete, and it seems inconsistent to hold that the jury trial right can prohibit applying harmless error analysis to the failure to submit a sentencing factor to the jury when a defendant has waived that right to jury by stipulating as to his guilt, as is the case here, but not when a defendant has not waived that right, as was the case in Recuenco III. Even if Justice Fairhurst’s appraisal is incorrect, though, independent consideration of the harmless error doctrine, as articulated by the United *514States Supreme Court and outlined above, necessarily lead me to an identical conclusion.
Conclusion
¶36 The alleged error here does not merit including this case in the small group of “rare cases” in which an error renders a judgment so fundamentally unfair as to require reversal. Recuenco II, 548 U.S. at 218. The State’s failure to submit the aggravating sentencing factor to a jury, where Beito chose to avoid the jury by his guilty plea, did not render sentencing inherently unreliable or fundamentally unfair. Any error is harmless and not grounds for reversing the exceptional sentence, which the trial court was justified imposing on the stipulated facts of this crime. For these reasons, I respectfully dissent.
Fairhurst, J., concurs with J.M. Johnson, J.Reconsideration denied February 10, 2010.
As part of the plea agreement, “Real and Material facts establishing the elements of a Rape First and Second Degree, and Rape of a Child Third Degree to be considered at sentencing are specifically stipulated to [by the defendant].” Clerk’s Papers at 86 (App. C to Plea Agreement). Beito also stipulated that “Rape of a Child Third Degree was committed.” Id. at 87. Finally, Beito acknowledged the facts contained in “[s]tatements of the defendant included in the case discovery,” id. at 86, which, in turn, included his own confession of the facts upon which the sentencing court relied in imposing the exceptional sentence. See Suppl. Br. in *510Resp. to Arguments Raised in Pet’r’s August 2008 Suppl. Br., App. G (Confession of Corey Beito).
To call the State’s failure to submit a sentencing factor to a jury when the defendant has already stipulated to that factor an “error” stretches the concept. Such a broad definition of “error” would render the failure to submit a defendant’s guilt to a jury when the defendant has pleaded guilty. This absurd outcome would eviscerate the benefits of the plea-bargaining process. The Apprendi/Blakely rule does not extend to this absurd result. If any error occurred here, it was Beito’s, that is, his choice to waive his rights to a jury by pleading guilty.