¶16 (dissenting) — I respectfully dissent from the majority’s decision that Blakely precludes the trial court’s consideration of Curtis’s volunteered breach-of-trust admission during sentencing as a basis for imposing an exceptional sentence. See majority at 462-64.
Hunt, J.¶17 As the majority acknowledges at page 462 of its Opinion, Blakely2 requires that any fact (other than the fact of a prior conviction) that “increases the penalty for a crime beyond the prescribed statutory maximum” must be found by a jury beyond a reasonable doubt or “admitted by the defendant.” Curtis admitted at sentencing that he had betrayed the trust of the victims and their families. The trial court used Curtis’s admitted abuse of trust as a basis *466for imposing an exceptional sentence under RCW 9.94A-.535(2)(d)(iv). The plain language of Blakely’s holding allows imposition of an exceptional sentence based on a penalty-increasing factor that the defendant admits.
¶18 The majority reasons that Blakely precludes using Curtis’s admission for sentencing enhancement purposes. Majority at 462. In support, the majority cites Division Three’s opinion in State v. Serrano, 95 Wn. App. 700, 708-09, 977 P.2d 47 (1999). As I read Serrano, however, neither that opinion nor Blakely precludes consideration of a defendant’s unsolicited admissions during sentencing for purposes of providing a factual basis for an exceptional sentence.
¶19 Rather, the defect in Serrano was not that the factual basis for the exceptional sentence arose during sentencing, as opposed to during a trial or guilty plea, but rather that it arose in response to the trial court’s improperly questioning of the defendant at sentencing, asking, “Do you deny that this crime occurred?” Serrano, 95 Wn. App. at 708. Division Three noted:
To the extent the sentencing court here sought to ascertain facts, [the court’s] question in the context of Mr. Serrano’s allocution was improper. Mr. Serrano did not invite the inquiry, and a court may not rely on a defendant’s professed innocence as an aggravating factor to support an exceptional sentence. The court’s question was improper.
Serrano, 95 Wn. App. at 709 (citations omitted) (emphasis added). Additionally, Division Three criticized the sentencing court for imposing an exceptional sentence where it apparently “disagreed with the jury’s verdict, the law, or both” about whether there was a trust relationship between Serrano and the victim. Serrano, 95 Wn. App. at 715. Such is not the case here.
f 20 During Curtis’s sentencing allocution, he spontaneously volunteered that, in assaulting the victims, he had abused a position of trust. Unlike Serrano, Curtis did not make this admission in response to any questioning by the sentencing court improper or otherwise.
*467¶21 The majority also relies on State v. Lord, 117 Wn.2d 829, 897, 822 P.2d 177 (1991), cited in Serrano, for the proposition that allocution at sentencing is a “ ‘plea for mercy; it is not intended to advance or dispute facts.’ ” Majority at 463 (quoting Lord, 117 Wn.2d at 897). The Supreme Court in Lord, however, went on to hold that because Lord had used sentencing allocution to testify and to dispute the State’s evidence, the State was entitled to cross examine him. Lord, 117 Wn.2d at 899-900. Thus, I read the Lord decision as allowing cross examination to resolve factual disputes at sentencing where, as here, the defendant (not the State or the court) has opened the door to such disputes. In my view, the majority has taken the above quotation from Lord out of context, and the holding in Lord does not support the majority’s proposition.3
¶22 I further disagree with the majority’s statement that because “Curtis allocuted before Blakely was decided,” he could not knowingly have waived his Blakely rights. Majority at 464. In my view, there is no issue of waiver of Blakely rights at issue here. Curtis, unsolicited by the State or by the court, voluntarily apologized to the victims for his breach of their trust in committing the crimes to which he had pleaded guilty. Although such admission could also have been part of his plea for mercy Blakely does not preclude the sentencing court’s consideration of such admission for purposes of imposing an exceptional sentence. On the contrary, such admission fulfills the Blakely requirement that an aggravating exceptional sentence fact must either be found by the jury or admitted by the defendant.
¶23 I would affirm Curtis’s exceptional sentence.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh’g denied, 542 U.S. 961 (2004).
The majority’s cite to a similar phrase from In re Personal Restraint of Benn, 134 Wn.2d 868, 893, 952 P.2d 116 (1998), is also out of context. In that case, as in Serrano, the defendant exceeded the normal bounds of allocution by testifying about the facts of his claim of self-defense, apparently to his detriment. The Supreme Court ruled that his defense counsel’s response, turning away during this unsworn testimony and later asking the jury to impose a life sentence rather than the death penalty, did not constitute ineffective assistance.