¶36 (concurring in part, dissenting in part) — I concur in Chief Judge Quinn-Brintnall’s opinion that there was no prosecutorial misconduct. But, I respectfully dissent regarding the application of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh’g denied, 542 U.S. 961 (2004), to RCW 9.94A.712. Blakely does not apply to sentencing under RCW 9.94A.712.11
Bridgewater, J.*453I. RCW 9.94A.712
¶37 The trial court’s sentence was based upon RCW 9.94A.712; it provides in pertinent part:
(1) An offender who is not a persistent offender shall be sentenced under this section if the offender:
(a) Is convicted of:
(i) Rape in the first degree, rape in the second degree, rape of a child in the first degree, child molestation in the first degree, rape of a child in the second degree, or indecent liberties by forcible compulsion;
(ii) Any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, or burglary in the first degree; . . .
(3) 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 and 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.
¶38 In this case, the sentencing court, on a plea of guilty to the two first degree rapes, sentenced Monroe to life and then proceeded to set minimum terms. For convenience, we refer to that as a “determinate minimum sentence.” The import of this becomes more clear because RCW 9.95.420 permits the Indeterminate Sentence Review Board (ISRB) to conduct a hearing to determine only whether it will release the defendant when the minimum term is about to expire. If the ISRB does not release the defendant, it shall establish a new minimum term.12 Monroe, citing to Blakely, challenges the two determinate minimum terms set by the *454court because the findings were not made by a jury and were not admitted by Monroe.
II. Blakely
139 Monroe contends that his exceptional sentences for counts I and II violate the Sixth Amendment. The State responds that Monroe’s sentences should be upheld because Blakely does not apply to sentences imposed under RCW 9.94A.712. The State is correct.
¶40 In Blakely, the United States Supreme Court addressed former RCW 9.94A.390 (1991), recodified as RCW 9.94A.535 (2001), which provides: “The court may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.” The Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that, “ ‘[o]ther 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.’ ” Blakely, 542 U.S. at 301 (quoting Apprendi, 530 U.S. at 490). And it explained that the “statutory maximum” “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303 (emphasis omitted). Thus, the court held that a defendant has a constitutional right to have a jury determine whether the factors permitting an exceptional sentence have been proved beyond a reasonable doubt. Blakely, 542 U.S. at 313-14. The statutory maximum for first degree rape is life in prison. RCW 9A.44.040; RCW 9A.20.021.
¶41 Here, in accordance with RCW 9.94A.712(3), the trial court set Monroe’s sentence range for count I at life in prison, with a minimum term of 254 months; and for count II at life in prison, with a minimum of 193 months. Thus, the facts relied upon and found by the court affected only Monroe’s minimum term. Blakely requires only that facts increasing the penalty for a crime beyond the prescribed *455statutory maximum be submitted to a jury. Blakely, 542 U.S. at 301.
¶42 RCW 9.94A.712 employs a different sentencing structure from the Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW, “determinate sentences.” The SRA sets determinate sentences for offenses, using criminal histories and certain additors (permissible consecutive sentences for multiple convictions) to arrive at the standard ranges for the offenses. RCW 9.94A.510, .589. Other factors may add to the potential “period of confinement” (e.g., firearm possession) and then, of course, there is the potential for additional time to be added to the potential period of confinement for aggravating factors (discretionary exceptional sentences based upon prior convictions and exceptional sentences based upon factors that must be proved beyond a reasonable doubt or admitted by the defendant). RCW 9.94A.535, .602. Although the period of confinement can be reduced by “earned release,”13 the sentence is a “determinate sentence” under the SRA — once the defendant has served the maximum of the determinate sentence, his obligation cannot be extended to the maximum possible under the statute he violated.
¶43 RCW 9.94A.712 is distinctly different. First, it concerns a set of crimes that are sexual in nature — e.g., rape in the first or second degree, rape of a child in the first or second degree, etc., and certain crimes that occur with sexual motivation, e.g., murder, kidnapping, assault, etc. RCW 9.94A.712(l)(a)(i)-(ii). For these crimes, the sentencing court is without discretion and there is no sentencing under any grid in the SRA for establishing the maximum sentence imposed. The sentencing court must sentence to the maximum under the particular statute. Here, no fact increased the maximum imposed by the court, and the threshold for Blakely simply is not met. RCW 9.94A.712(3) mandates only that a minimum term be set by the court using the standard range or exceeding the standard range *456under RCW 9.94A.535. For this reason, Blakely is not implicated.
¶44 In effect, RCW 9.94A.712 changes the sentencing structure to one which is “indeterminate”; this is why the Indeterminate Sentence Review Board (ISRB) is referenced. RCW 9.94A.712(5), (6). Once a defendant is sentenced under RCW 9.94A.712, he or she is subject to the authority of the ISRB up to his or her life term. RCW 9.94A.712(5); RCW 9.95.420(3).
¶45 Chapter 9.95 RCW made the former “parole board” the “ISRB.” The ISRB’s function was originally to deal with those cases that were not sentenced under the SRA, and in 1989, the legislature explicitly directed the ISRB to set terms for confinement for offenders serving life sentences. RCW 9.95.001, .009. In doing so, the ISRB was to consider the standards, ranges, and purposes of the SRA. RCW 9.95.001. This system withstood challenge in In re Personal Restraint of Stanphill, 134 Wn.2d 165, 949 P.2d 365 (1998). Our Supreme Court affirmed in Stanphill, as it had in In re Personal Restraint of Powell, 117 Wn.2d 175, 193-94, 814 P.2d 635 (1991), that there was no vested interest in a release date. Stanphill, 134 Wn.2d at 173. The court also held that an additional ISRB obligation under this system is to ensure “rehabilitation” of offenders. Stanphill, 134 Wn.2d at 172. Thus, Monroe’s term can be periodically extended in two-year increments14 —the minimum is set only to establish a parole review date.
¶[46 A quote from Stanphill illuminates the system of indeterminate sentencing:
Even after the adoption of the SRA, the indeterminate sentencing scheme retains the premise of rehabilitation. The insertion of SRA sentencing ranges does not change the goal; it merely standardizes the process and places a tangible date on parole eligibility. However, the SRA ranges do not guarantee release and pre-SRA offenders must still establish parolability. For this reason, any inmate serving an indeterminate life *457sentence can never establish more punishment is being imposed under whatever SRA guideline the Board applies.
Stanphill, 134 Wn.2d at 172.
¶47 Additional authority concerning the procedures of the ISRB when setting minimum terms is also helpful. In In re Personal Restraint of Locklear, 118 Wn.2d 409, 413-14, 823 P.2d 1078 (1992), the court held that the Board was not bound to mirror the SRA criteria but had to be only reasonably consistent with it. And in In re Personal Restraint of Ecklund, 139 Wn.2d 166, 175, 985 P.2d 342 (1999), the court noted that the SRA is not superimposed upon the indeterminate system. Ecklund dealt with the standard of review for release and the resetting of an additional minimum. Ecklund, 139 Wn.2d at 170. The court held that the redetermination of a minimum is within the discretion of the ISRB. Ecklund, 139 Wn.2d at 170. The court also addressed the ISRB’s additional duty to ensure that there is not a community threat upon release. Ecklund, 139 Wn.2d at 174. Ecklund’s sentence had been extended several times and the court stated that his sentence was the equivalent of an exceptional sentence. Ecklund, 139 Wn.2d at 176. Nonetheless, these cases illustrate the difference between the SRA “determinate” sentences and the “indeterminate” sentence under RCW 9.94A.712. And although the determination of the minimum under RCW 9.94A.712 is superimposed from the SRA, there is no doubt that a sentence under RCW 9.94A.712 is an indeterminate sentence. Any redetermination of a sentence by the ISRB would include rehabilitation of the defendant.
¶48 The Chief Judge’s opinion concedes that Blakely’s constitutional jury trial right does not apply directly to the minimum set by the sentencing court. But the Chief Judge’s opinion extends Blakely to the setting of the minimum term relying upon the final language of the statute which states “ ‘. . . if the offender is otherwise eligible for such a sentence.’ ” Chief Judge’s opinion at 449 (emphasis omitted) (quoting RCW 9.94A.712(3)). The Chief Judge’s opinion *458opines that “an offender is not ‘otherwise eligible’ to receive a sentence outside the standard sentence range . . . until a jury has found disputed facts increasing the standard range penalty beyond a reasonable doubt or the defendant has otherwise stipulated or waived a jury trial on these issues.” Chief Judge’s opinion at 449.
¶49 The Chief Judge’s opinion claims that the “eligibility” for an offender for a sentence outside the standard range must be determined by a jury in this case because of Blakely. The Chief Judge’s opinion bases this upon the statute, using rules of statutory construction and Blakely.
¶50 But the statute is not ambiguous. The plain language gives the trial court the authority to set the minimum term, not a jury. And Stanphill establishes that the offender does not have a vested interest in a release date under an indeterminate sentence. The injustice that Blakely and Apprendi prohibited was imposition of a sentence beyond what the law allowed for the crime that the jury found. That injustice is not present here.
¶51 There is a difference between entitlement and eligibility. Here, the statute provides that the court make the determination of eligibility, not a jury. Under the indeterminate sentencing scheme, the minimum date is merely a target of sorts because the ISRB can always extend the term in two-year increments. Thus, the minimum merely establishes a base, but not a solid base for the offender to be considered for release. There is no expectation of a maximum term that the offender could be exposed to other than the maximum of life imprisonment and supervision for life; there is no guaranty of a certain release date; and, there is no question of notice. And if the lead opinion is correct, if the determination of the original minimum term is subject to a jury trial, then any redetermination of the minimum by the ISRB would be subject to a jury trial. The extension of the right to a jury trial for a minimum term under the indeterminate sentencing scheme is inappropriate.
¶52 I would affirm the sentence.
Additionally, I disagree with the Chief Judge’s assertion that Blakely errors are procedural. The nature of Blakely errors lends itself to a structural analysis, not a procedural one. See State v. Fero, 125 Wn. App. 84, 104 P.3d 49 (2005).
RCW 9.95.420(3).
RCW 9.94A.030(17).
RCW 9.95.420(3).