¶23 (concurring specially) — I concur with the majority opinion in its entirety. Under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), Allen’s exceptional sentence must be reversed. I write separately, however, because contrary to our Supreme Court’s holding in Hughes, this case conclusively illustrates why Blakely errors may be harmless in some circumstances: The exceptional sentence of 60 months on Count II violates Blakely but does not prejudice Allen in any way. A party lacks standing to raise an issue when they have not suffered a cognizable harm. Branson v. Port of Seattle, 152 Wn.2d 862, 876, 101 P.3d 67 (2004). The trial court imposed this 60-month exceptional sentence on Count II concurrently with Allen’s 60-month standard range sentences on Counts I, III, and IV. Thus, the additional months improperly imposed on Count II did not result in Allen’s additional confinement and the Blakely violation is unquestionably harmless. Because Allen presents no meritorious challenge to his convictions and the trial court’s erroneous sentence on Count II does not harm Allen, the Blakely violation on Count II does not require resentencing.
Quinn-Brintnall, C.J.¶24 In addition, I note that the State has not challenged Blakely’s application to standard range sentences that become exceptional by virtue of the trial court’s ruling that they are to be served consecutively. Division One has concluded that a defendant’s jury trial right is not violated when an exceptional sentence is imposed in this manner. See State v. Kinney, 125 Wn. App. 778, 781-83,106 P.3d 274 (2005). This issue is currently before our Supreme Court,28 but it was not raised here, and we do not decide it.
State v. Cubias, noted at 119 Wn. App. 1018, 2003 WL 22701538, 2003 Wash. App. LEXIS 3337, review granted, 152 Wn.2d 1013 (2004).