¶30 (dissenting) — I concur with that portion of the majority opinion affirming Carlton Roosevelt Rudolph’s first degree robbery conviction and finding the Illinois home invasion statute a most serious offense under Washington law. But because I believe that the Sixth Amendment to the United States Constitution controls, I respectfully dissent from that portion of the opinion affirming Rudolph’s sentence of life without possibility of parole.
¶31 A criminal defendant’s jury trial right is the foundation and heart of our criminal justice system. Countless law-abiding patriotic Americans have given their lives to protect this right for others—even, and maybe especially, those who repeatedly or routinely break our laws. In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Justice Scalia, writing for the majority, concluded bluntly:
The Framers would not have thought it too much to demand that, before depriving a man of. . . his liberty, the State should *73suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” [4 William Blackstone, Commentaries on the Laws of England 343 (1769)], rather than [the judge,] a lone employee of the State.
Blakely, 542 U.S. at 313-14.
¶32 Except on a jury’s verdict finding a defendant guilty of aggravated first degree murder, no Washington trial court may impose a sentence of life without possibility of parole based on the jury’s verdict alone. Contrary to the majority opinion, the requirement for a jury trial is a bright-line rule, not dicta. Blakely, 542 U.S. at 308. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held, “Other 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.” And in Blakely, the Court clarified that “statutory maximum” means 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). In other words, the “statutory maximum” is the maximum that a judge may impose “without any additional findings.” Blakely, 542 U.S. at 303-04 (emphasis omitted).
¶33 Recidivist statutes, such as the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, have been part of American sentencing for over 100 years. And dating back to at least 1912, courts and commentators have recognized that these habitual criminal prosecutions require proof of two matters: (1) the existence of prior convictions and (2) the identity of the defendant as the prior convict. See, e.g., Graham v. West Virginia, 224 U.S. 616, 32 S. Ct. 583, 56 L. Ed. 917 (1912); United States v. Jackson, 368 F.3d 59, 67 n.9 (2d Cir. 2004); Kyron Huigens, Solving The Apprendi Puzzle, 90 Geo. L.J. 387, 408 (2002). Historically, the State was required to prove to a jury beyond a reasonable doubt that the defendant to be sentenced under a recidivist *74statute was the person who was previously convicted of statutorily qualifying offenses. See State v. Furth, 5 Wn.2d 1, 10, 104 P.2d 925 (1940).
¶34 Under the current POAA statutes, the legislature requires that trial courts sentence “persistent offenders” to life without possibility of parole. RCW 9.94A.570. A “persistent offender” is an offender with three “strikes”: convictions for felonies that are “most serious offenses” as defined in former RCW 9.94A.030(28) (2003). Former RCW 9.94A-.030(32)(a)(i), (ii); State v. Crawford, 159 Wn.2d 86, 89-90, 147 P.3d 1288 (2006). Prior foreign convictions, including out-of-state convictions, are strikes if they are comparable to a Washington strike offense. Former RCW 9.94A-.030(32)(a)(ii); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005). A trial court must sentence a defendant to life without possibility of parole upon a conviction for a third strike offense. RCW 9.94A.570.
¶35 When the Washington legislature enacted the POAA, it withdrew this right to jury trial. In a POAA proceeding, the legislature authorized judges to find, under a preponderance of evidence standard, whether the defendant was a habitual criminal. Our Supreme Court held this procedure was constitutionally permissible and ruled that prior convictions resulting in a life without parole sentence need not be pleaded in the information, submitted to a jury, or proved beyond a reasonable doubt. State v. Wheeler, 145 Wn.2d 116, 117, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002).
¶36 The Washington Supreme Court addressed the question of whether a defendant’s constitutional right to a jury trial is violated in a POAA proceeding in State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996). Relying on pre-Apprendi case law, the court held that judicial sentencing under the POAA did not violate the right to jury trial:
As a practical matter, since the only two questions of fact relevant to sentencing under the persistent offender section of the [Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW] are whether certain kinds of prior convictions exist and *75whether the defendant was the subject of those convictions, we fail to see how the presence of a jury would be necessary. Prior convictions are proved by certified copies of the judgment and sentence, [State v. Murdock, 91 Wn.2d 336, 340, 588 P.2d 1143 (1979)], and identity (if contested) can be proved by fingerprints. The sentencing judge can make those determinations. While technically questions of fact, they are not the kinds of facts for which a jury trial would add to the safeguards available to a defendant. In fact, judges decide such questions of fact routinely at SRA sentencing proceedings. A certified copy of a judgment and sentence is highly reliable evidence. State v. Gentry, 125 Wn.2d 570, 637, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995); see [United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir.), cert. denied, 495 U.S. 938 (1990)] (prior convictions are highly verifiable matters of public record). We find no constitutional bar to the provision of the SRA which allows a trial court to conduct the sentencing proceedings. RCW 9.94A.110.
Thorne, 129 Wn.2d at 783, cited in Almendarez-Torres v. United States, 523 U.S. 224, 246-47, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) and quoted in State v. Smith, 150 Wn.2d 135, 148, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004). In summary, the Thorne court held that it is not necessary to impanel a jury for POAA sentencing because judges traditionally find these facts and the evidence is reliable.
¶37 After Apprendi, our Supreme Court continued to rely on Thorne's outdated analysis and held in Smith and Wheeler that the procedure allowing a judge to find the fact of a prior conviction under the POAA does not violate the right to jury trial.17 Smith, 150 Wn.2d at 155; Wheeler, 145 Wn.2d at 121, 124. In Smith, the court quoted Thorne approvingly and adopted a preponderance of evidence standard for proof of a prior conviction. The Smith court reasoned that no additional safeguards are required because a certified copy of a judgment and sentence is high*76ly reliable evidence. Smith, 150 Wn.2d at 143 (following Wheeler, 145 Wn.2d 116).
¶38 But after our Supreme Court issued Smith and Wheeler, the United States Supreme Court clarified the Sixth Amendment’s jury trial right in Blakely and Cunningham. Blakely, 542 U.S. at 303; Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 866, 166 L. Ed. 2d 856 (2007). These recent United States Supreme Court opinions invalidate the basis for the analysis in Thorne, Smith, Wheeler, and other Washington cases that rely on that precedent.
¶39 Under controlling Sixth Amendment analysis, a legislature’s characterization of necessary factual findings as “sentencing factors” rather than “elements” is irrelevant. The Blakely Court outright rejected the interpretation of Apprendi that a “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.” Blakely, 542 U.S. at 306. The Court stated that this approach would lead to “absurd result [s]” and would undermine an essential jury function:
The jury could not function as circuitbreaker 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, 542 U.S. at 306-07.18
¶40 And most recently, in Cunningham, the United States Supreme Court again flatly rejected attempts to base the jury trial right on a sentencing code’s structure, the *77historical discretion of courts in determining facts that underlie higher sentences, or the reliability of evidence to support increased penalties. Cunningham, 127 S. Ct. at 866. These discredited rationales are the sole bases on which Thome relies. After Cunningham, it is clear that the defendant’s right to a jury trial rests on a “bright-line rule” that is not subject to policy concerns such as whether a jury would add additional safeguards to the procedure, what the legislature intended, or whether the evidence that the fact-finder is to evaluate is particularly reliable. Cunningham, 127 S. Ct. at 868; see also Washington v. Recuenco, 548 U.S. 212, 220, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (holding that there is no distinction in the right to jury trial between “sentencing factors” and “elements”).
¶41 Apprendi and its progeny overruled the case law on which Thorne rests. Apprendi, 530 U.S. at 489-90. The Thorne court summarized the then current law, saying, “[T]he United States Supreme Court has repeatedly held that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed even where the sentence turns on specific findings of fact.” Thorne, 129 Wn.2d at 782. Apprendi overruled this interpretation of the Sixth Amendment and eroded Thorne. Likewise, because Smith and Wheeler are premised on Thorne and a pre-Blakely and pre-Cunningham understanding of the right to jury trial, they are no longer good precedent on this issue.
¶42 After Blakely, our Supreme Court reiterated, but qualified, the rulings of Smith and Wheeler. See Lavery, 154 Wn.2d at 256-57 (discussing Smith, 150 Wn.2d 135; Wheeler, 145 Wn.2d 116). In Lavery,19 the court first held that “[l]ife without possibility of parole is a penalty beyond the statutory maximum for the crime of second degree *78robbery,” and held that Apprendi applied.20 Lavery, 154 Wn.2d at 256. The court then reiterated its rulings in Smith and Wheeler. Lavery, 154 Wn.2d at 256-57. And it held that a jury must determine facts relating to comparability analysis when foreign crimes are not facially identical to Washington offenses. Lavery, 154 Wn.2d at 258. Thus, in Lavery, the court implicitly ruled that the right to jury trial applies to facts at POAA sentencing, while accepting that the “prior conviction” exception allows a judge to determine legal comparability in many situations.21 In doing so, the court rejected the notion that the POAA is exempt from the Sixth Amendment right to jury trial because it is a recidivist statute.
¶43 In my view, no viable Washington case clearly addresses the issue of a POAA defendant’s right to a jury trial when the defendant contests that he is the person previously convicted of two “most serious offenses.” Blakely and Apprendi are grounded in the United States Constitution’s Sixth Amendment and establish a defendant’s minimum jury trial right. Under the Sixth Amendment and controlling cases interpreting its application, I would hold that the “prior conviction” exception to the right to jury trial does not apply to the contested fact of identity when extrinsic evidence is required and the sentence to be imposed exceeds the maximum possible sentence a court could impose based on the jury’s findings.
¶44 The United States Supreme Court has never directly ruled on whether, under a recidivist sentencing statute, a defendant contesting identity has a right to jury trial under *79the Apprendi/Blakely “prior conviction” exception.22 But Washington law long ago held that recidivist sentencing schemes implicate two issues: (1) the fact of the prior conviction, e.g., whether the conviction was for rape, whether that rape was against a minor of 12 years or younger, etc., and (2) whether the person to be sentenced is the person who was previously convicted. Thorne, 129 Wn.2d at 783; Furth, 5 Wn.2d at 10. The United States Supreme Court has also ruled that the issue of whether the person to be sentenced is the same person who was previously convicted is separate from the facts underlying a conviction and accordingly held that an habitual offender statute granted the statutory right to a jury trial on the identity issue. See Graham, 224 U.S. 616.
¶45 The question for us today is whether the fact of identity is exempt from the right to jury trial under the prior conviction exception when the defendant is to be sentenced as a persistent offender and placed in jeopardy of receiving a greater punishment (life without possibility of parole) than the statutory maximum possible for the class A offense for which he is to be sentenced (life with the possibility of parole). See Apprendi, 530 U.S. at 490 (“[o]ther than the fact of a prior conviction”).
¶46 In Jones, the United States Supreme Court explained the jury trial exception: “[A] prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). And the Court in Blakely reasoned that the right to jury trial, including the prior conviction exception, “reflects [the] longstanding tenet [ ] of *80common-law criminal jurisprudence: that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors.’ ” Blakely, 542 U.S. at 301 (quoting 4 William Blackstone, Commentaries on the Laws op England 343 (1769)). This tenet applies to the prior conviction exception because a jury previously found the “truth of every accusation” supporting the prior conviction beyond a reasonable doubt.
¶47 Thus, a defendant has no right to jury trial and may not relitigate the fact that an offense was committed on a previous occasion (i.e., the fact of a prior conviction) because he or she already enjoyed the right and received its protections during the first trial.23 A jury finding on the facts underlying a prior conviction would merely duplicate the process that the defendant previously received. In short, the prior conviction exception appropriately prevents a criminal defendant from “double-dipping” on his jury trial rights. Jackson, 368 F.3d at 67 n.9 (reasoning, in dicta, that the prior conviction exception should not extend to the fact of identity because “[t]he question in the new proceeding is . . . whether the defendant was the person convicted in the prior proceeding. [But t]he defendant has never received due process on that question, because the question has never before been adjudicated.”); Benjamin J. Priester, Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limited Role of Constitutional Law, 79 Ind. L.J. 863, 878 (2004); see Huigens, supra, at 408 (noting that identity may be a contestable fact).
*81¶48 But a defendant is not “double-dipping” on his right to jury trial when he asserts that the prior conviction was not issued against him and that, therefore, he is not eligible to be sentenced to life without possibility of parole. Addressing the case before us today, an Illinois jury found beyond a reasonable doubt that a man going by the names “John Williams” and “Clarence Rudolph” was guilty of home invasion. Those Illinois findings (e.g., that John Williams AKA Clarence Rudolph was the perpetrator, that the structure invaded was a home, etc.) fit squarely in Blakely’s “prior conviction” exception. But no jury has found that the Illinois home invasion convict was the same man who currently appeals the increased penalty of his POAA sentence. And, regardless of the fact of his prior convictions, no jury had yet to find Rudolph to be a persistent offender. Instead, over Rudolph’s protestation that he was not the man convicted in Illinois, a Washington judge examined evidence and found identity of the Illinois convict by a preponderance of the evidence. This judicial finding of identity increased Rudolph’s maximum possible sentence from life with parole to life without possibility of parole. The “prior conviction” exception to the right to jury trial does not encompass the fact of identity in a POAA proceeding because the jeopardy to which the defendant is exposed exceeds the maximum possible life sentence on the jury’s verdict finding him guilty of the charged offense. Accordingly, Rudolph was denied his Sixth Amendment jury trial right on the issue of his identity and I would reverse his POAA sentence.
¶49 It appears that the practice of placing the convicted person’s fingerprints in the judgment and sentence has caused appellate courts to conflate two issues regarding recidivist sentencing proceedings: whether there was error and whether that error prejudiced the defendant. In most instances, judicial fact finding of prior convictions is a reasonable procedure with no negative effect on the truth-seeking function of the sentencing process. Typically, any error in failing to convene a jury to decide the point would *82be harmless beyond a reasonable doubt. See Recuenco, 548 U.S. at 221 (holding that a violation of the right to jury trial may constitute harmless error); accord State v. Suleiman, 158 Wn.2d 280, 294-95, 143 P.3d 795 (2006). But the likely frequency that such error is harmless does not mean there is no error in denying a defendant the right to jury trial for the contested fact of identity at a POAA sentencing proceeding where the resulting sentence will exceed that which could be properly imposed on the jury’s verdict.
¶50 The majority’s reliance on pre-Apprendi cases such as Thorne runs contrary to the United States Supreme Court’s controlling authority. See, e.g., State v. Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007). Thorne posited that the right to a jury trial would not add any safeguards to the proceedings because prior convictions are proved by certified copies of the judgment and sentence and identity can be proved by fingerprints, highly reliable evidence. Thorne, 129 Wn.2d at 783. This observation undoubtedly demonstrates that the failure to hold a jury trial on the issue of identity in most POAA cases is harmless beyond a reasonable doubt. See Recuenco, 548 U.S. 212 (holding that Blakely errors may be harmless). But it is no longer appropriate to hold categorically that the Sixth Amendment does not require a jury trial in a POAA sentencing proceeding. See Cunningham, 127 S. Ct. 856.
¶51 In my opinion, the majority’s reliance on Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), is misplaced. In Shepard, the Court addressed the federal sentencing guidelines that it has described as advisory and has distinguished from Washington’s SRA. Although I question the Supreme Court’s rejection of the Washington legislature’s determination that maximum felony terms depend on their classification, e.g., A, B, or C felonies, and not the SRA sentencing grid, the analysis announced in Blakely is nevertheless compelling here, given the length and mandatory nature of POAA sentences. I note also that the highest court distinguished between *83federal sentencing guidelines, which they have held are advisory, and Washington’s sentencing ranges under the SRA. See Rita v. United States, _ U.S. _, 127 S. Ct. 2456, 2467, 168 L. Ed. 2d 203 (2007) (“Booker held unconstitutional that portion of the [federal] Guidelines that made [sentences] mandatory. It also recognized that when district courts impose discretionary sentences, . . . such a sentencing scheme will ordinarily raise no Sixth Amendment concern.” (citation omitted) (discussing United States v. Booker, 543 U.S. 220, 233-34, 243-44, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005))); see also James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 1590, 1600 n.8, 167 L. Ed. 2d 532 (2007) (James admitted his prior conviction in his statement of defendant on plea of guilty and was sentenced to a mandatory 15-year term under the Armed Career Criminal Act, 18 U.S.C. § 924(e)). Thus, cases analyzing federal sentencing statutes, like Shepard, do not alter my view of the constitutional necessity of a jury trial before a repeat offender may be sentenced to life without the possibility of parole for any crime except aggravated first degree murder.
¶52 Neither am I convinced that the Washington Supreme Court’s recent decision in State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006), cert. denied, 127 S. Ct. 2066 (2007), sheds much light on the proper application of the Sixth Amendment jury trial right in POAA cases. In Jones, our Supreme Court ruled that whether a defendant was on community placement at the time he committed an offense was a factual issue that could be constitutionally decided by the trial court by a preponderance of the evidence. Jones, 159 Wn.2d at 243-47. Jones is factually distinguishable because the defendant in Jones did not face a sentence of life without possibility of parole, nor did he face a sentence greater than the statutory maximum possible under Washington law.24 Moreover, I *84believe that the decision in Jones clearly controls only when the jury finds that the defendant committed the offense on a single date. Whether that date clearly falls within the time the sentencing judge determines the defendant was serving the community placement portion of his sentence on the prior crime is a mixed question of law and fact that the sentencing court can decide. But Jones does not address situations in which the crime charged is alleged to have been committed over a period of time and the jury does not find that the crime occurred on a particular discrete date.25
¶53 On the record in this case, I cannot find that the deprivation of Rudolph’s right to have the jury determine whether he was the person convicted in Illinois was harmless beyond a reasonable doubt. The State failed to provide a certified copy of the judgment and sentence, none of the names on the Illinois paperwork was identical with Carlton Roosevelt Rudolph, fingerprint analysis was not subject to cross-examination, and, crucially, Rudolph disputed that he was the Illinois convict.26
¶54 To summarize, under controlling decisions of the United States Supreme Court, I believe the right to jury trial extends to those, like Rudolph, who face the permanent deprivation of their liberty by being sentenced to a term that exceeds the statutory maximum sentence possible for the crime the jury has found they committed. Under the SRA, when sentencing a defendant solely based on the jury’s verdict to a term within the maximum possible, the State need present only a certified judgment and sentence showing the defendant’s name; then the burden shifts to the defendant to declare under oath that he did not *85commit the prior offense. State v. Ammons, 105 Wn.2d 175, 189-90, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). But because the POAA requires a sentence (life without possibility of parole) greater than that possible on the jury’s first degree robbery verdict alone (life), this process was insufficient to protect Rudolph’s Sixth Amendment constitutional jury trial right when he disputed that he was the person previously convicted in Illinois. Following what I believe to be controlling precedent of the United States Supreme Court, I would reverse Rudolph’s POAA sentence.27
Review denied at 163 Wn.2d 1045 (2008).
The Washington Constitution is not more protective than is the federal constitution in the arena of POAA sentencing. Smith, 150 Wn.2d at 156.
Our Supreme Court neither cited nor addressed this Blakely holding when it recently held that the State need not notify a defendant that he faces a POAA sentence and reasoned that (1) the POAA is a sentencing statute, not a statute defining the elements of the crime; (2) the legislature alone fixes sentencing procedures; (3) the legislature does not explicitly require pretrial notice of POAA sentences; and (4) therefore, notice is not required. Crawford, 159 Wn.2d at 93-95. This rationale contradicts Blakely and Cunningham.
Inexplicably, the Lavery court did not discuss, or even cite to, Blakely.
Lavery’s second degree robbery conviction (without a jury finding of aggravating factors) subjected him to a maximum penalty of 84 months under the SRA. Lavery, 154 Wn.2d at 254.
One month after our Supreme Court published Lavery, this court issued State v. Ball, 127 Wn. App. 956, 113 P.3d 520 (2005), review denied, 156 Wn.2d 1018 (2006). Ball focused on the necessity of separately proving Washington State convictions of which the trial court had authority to take judicial notice. It did not expressly address Lavery’s holding that a sentence of life without possibility of parole exceeds that which may be imposed on the jury’s verdict alone. Lavery, 154 Wn.2d at 256.
See Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571, 161 L. Ed. 2d 542 (2005) (addressing statute of limitations under habitual offender statute; neither jury trial nor identity issues were raised); Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (ruling on the admissibility of evidence for predicate offenses under federal habitual offender law; issue of right to jury trial, section III, garnered only four out of eight votes); Almendarez-Torres, 523 U.S. at 243-44 (refraining from ruling on issue of identity because the defendant admitted that he had committed prior felonies).
The other possible rationale is that sentencing under recidivist statutes is exempt totally from the right to jury trial. See Almendarez-Torres, 523 U.S. at 243 (reasoning that recidivism is a “traditional . . . basis for a sentencing court’s increasing an offender’s sentence”). But our Supreme Court implicitly rejected this rationale in Lavery by applying Apprendi to the POAA. And, although Crawford adhered to the recidivist rationale, our Supreme Court did not analyze or distinguish its contrary analysis in Lavery. Further, Cunningham casts doubt on this explanation by criticizing strongly the theory that the right to jury trial hinges on the legislature’s characterization of a law as fitting within a particular category or on the tradition of judicial fact finding in particular arenas. Cunningham, 127 S. Ct. 856.
See RCW 9A.20.020(l)(a)-(c) (The statutory maximum for a class A felony is at least 20 years, the statutory maximum for a class B felony is not more than 10 years, and the statutory maximum for a class C felony is not more than 5 years.).
For example, if the crime is alleged to have been committed between September 30 and January 12 and the court determines that the defendant was serving the community placement portion of his sentence until December 31, a portion of the charging period falls within the community placement portion of the prior sentence and a portion of the charging period falls outside. In this situation, no jury has found the date on which the defendant committed the offense beyond a reasonable doubt. And I question the trial court’s authority to do so in its absence.
Rudolph did not dispute that he was the Florida convict.
The proper remedy, beyond reversal, is not clear. RCW 9.94A.537, the so-called “Blakely fix,” allows trial courts to empanel juries to determine aggravating circumstances after an appellate court reverses due to a Blakely error. But it is not clear whether a POAA sentence is an “aggravating circumstance,” and the parties did not brief the issue. If RCW 9.94A.537 applies and allows rehearing of Rudolph’s POAA sentence with a jury, then the statute’s other provisions apply. In particular, all defendants would be entitled to pretrial notice if they face a POAA sentence. But in a different context, our Supreme Court held that pretrial notice of a POAA sentence is not required. See Crawford, 159 Wn.2d 86. As this issue was not briefed, we leave it for another day.