(concurring in part and dissenting in part) — I agree with the majority on all points except their holding that Blakely46 (1) applies to the unique sentencing scheme for sexual offenders under RCW 9.94A.712; and (2) requires remand for sentencing on count III, first degree rape of a child.47
¶27 First degree rape of a child is a class A felony, the statutory maximum for which is life in prison. RCW 9A.44.073(2); RCW 9A.20.021(l)(a). RCW 9.94A.712(3) requires the sentencing court to impose a mandatory life sentence for a sex offender such as Borboa.48
I. Discretionary Minimum Term
¶28 The statute gives the sentencing court discretion in setting the minimum term, as follows:
Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to ... a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
RCW 9.94A.712(3). The sentencing court determines the applicable minimum term with reference to the sentencing grid in RCW 9.94A.510.
*794¶29 Here, the trial court set Borboa’s minimum term above the standard range reflected in the sentencing grid based on the deliberate cruelty of Borboa’s act in raping a toddler in a remote place with reduced chance for recontact with her family. The majority compellingly reasons that (1) in the unique situation of a sexual offender sentenced under RCW 9.94A.712, this elevated, or “exceptional,” mandatory minimum more frequently determines the offender’s release from confinement than does the mandatory life term; and (2) therefore, this minimum equates to the exceptional mandatory maximum reversed in Blakely, which requires a jury, not the court, to find the fact underlying an elevated maximum sentence term. Nonetheless, I disagree that Blakely and the majority’s cited other Supreme Court cases expressly or impliedly require this result.
¶30 Moreover, the Blakely Court appears to have rejected the notion that the majority poses here — that its holding applies to setting a minimum term based on aggravating factors. As the Court noted in Blakely:
The State defends the sentence by drawing an analogy to those we upheld in McMillan v. Pennsylvania[49] and Williams v. New York[50] Neither case is on point. McMillan involved a sentencing scheme that imposed a statutory minimum if a judge found a particular fact.[51] We specifically noted that the statute “does not authorize a sentence in excess of that otherwise allowed for [the underlying] offense.”
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403 (2004) (citation omitted).
*795II. Mandatory Maximum Term of Life in Prison
¶31 Reiterating my colleagues’ quote from Blakely,
[T]he “statutory maximum” for Apprendi[52] purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict. . . [i]n other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Blakely, 124 S. Ct. at 2537 (first emphasis omitted), quoted at page 786 of the majority opinion here. Under the statutory sentencing scheme at issue here, the relevant “statutory maximum” the trial court not only “may impose,” but must impose, “without any additional findings,” for a person convicted of first degree rape is life in prison. Unlike the statutory scheme at issue in Blakely, a life sentence for a sex offender under RCW 9.94A.712 does not depend on any additional findings by anyone. Rather, the maximum life sentence flows directly from the convicted rapist’s meeting RCW 9.94A.712 criteria. Because there is no additional fact for the jury or judge to find, Blakely does not apply.
f 32 Blakely, McMillan, and Apprendi hold only that a jury must determine the existence of aggravating facts that increase the statutory maximum, not a minimum sentence, which is at issue here. I appreciate the majority’s reasoning that under the relatively unique statutory sentencing of RCW 9.94A.712, the minimum term will typically have greater effect on the length of time a class A sexual felon spends in prison than will his mandatory life sentence.53 Nonetheless, in my view Blakely does not extend this far. The Blakely Court held only: “ ‘Other than the fact of a prior *796conviction, 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.’ ” Blakely, 124 S. Ct. at 2536 (emphasis added) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Here, as noted earlier, we address the setting of a minimum term under RCW 9.94A.712, not a “prescribed statutory maximum” that Blakely addresses.
¶33 In my view, the injustice Blakely and Apprendi seek to remedy relates expressly to increased maximum, not minimum, sentences predicated on additional facts beyond the convicted offense:
Those who would reject Apprendi[54] are resigned to one of two alternatives. The first is that the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge. This would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene. Not even Apprendi’s critics would advocate this absurd result. The jury could not function as circuit breaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.
Blakely, 124 S. Ct. at 2539 (citation and footnote omitted). But such is not the case here.
¶34 Unlike the potentially abusive situation the Supreme Court describes above, the trial court’s imposition of an increased minimum sentence for Borboa, already mandatorily sentenced to a maximum term of life imprisonment, does not subject him to a sentence for a harsher crime than that for which the jury convicted him in Count III, first degree rape of a child. There is no fact other than *797the underlying conviction itself that triggers the maximum statutory life sentence; nor is there any factor for the jury or judge to find that could increase his mandatory life sentence.
III. Conclusion
¶35 Although I find the majority’s analysis to be a plausible extension of Blakely, I do not believe that Blakely compels this result. Nor do I believe it prudent to extend Blakely to the unique sentencing scheme for class A sexual offenses for which our legislature has mandated a life sentence under RCW 9.94A.712. Washington’s sentencing scheme for this type of serious sexual offense resurrects the parole board, now called the Indeterminate Sentence Review Board. The only way a defendant can avoid an actual life sentence for this class of offenses is by having the Board find him unlikely to reoffend if released from prison into the community under supervision. RCW 9.95.420. Even then, if he reoffends or fails to follow the conditions of his release, the Board can return him to prison to reinstate his life sentence or to continue serving it in two-year increments. RCW 9.95.440.
136 In my view, we should confine Blakely to its holding, especially when read together with Apprendi and McMillan. We should not extrapolate to apply Blakely to minimum sentences that may be increased based on aggravating factors. I would hold that Blakely has no effect on such minimum terms under RCW 9.94A.712, where life in prison is the fixed statutory maximum. I would affirm the sentence on Count III.
Review granted at 154 Wn.2d 1020 (2005).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
I disagree with the majority that Blakely applies to class A sexual felonies under RCW 9.94A.712. Nonetheless, I concur in the majority’s affirmance of the trial court’s exceptional minimum sentence on Count I, first degree kidnapping, based on the jury’s finding of the statutory aggravating factor, sexual motivation. Therefore, I respectfully dissent as to Count III, first degree rape of a child, only.
“Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense.” RCW 9.94A.712(3).
477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
3 37 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).
McMillan, 477 U.S. at 81.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
The minimum term that the trial court sets at the time of sentencing affects only the potential earliest time that the defendant can be released. Although for any prisoner, this first opportunity for release may have more meaning than the life sentence imposed; nonetheless, neither the trial court nor the jury have any control over the mandatory life sentence once the defendant is convicted of the class A sexual felony under RCW 9.9A.712.
Apprendi, 530 U.S. at 490.