dissenting.
The majority holds that the rule in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), applies to the question whether a trial court should impose multiple sentences concurrently or consecutively. The majority’s decision marks an abrupt departure from years of tradition; it converts what historically has been an issue for trial judges into a federal constitutional question for juries. Neither the holding in Apprendi nor its reasoning supports extending that decision to the question of consecutive sentencing. Almost every court that has considered this question has held that Apprendi does not apply in this context. I agree *268with those decisions and respectfully dissent from the majority’s contrary holding.
When a jury finds a defendant guilty of multiple offenses, a trial court must decide whether the defendant should serve the resulting sentences concurrently or consecutively; that is, the trial court must decide whether the sentences should run simultaneously or whether the defendant should not begin serving the sentence for one offense until the sentence for the other offense ends. As the Court has recognized, the decision whether to impose concurrent or consecutive sentences rests in the sound discretion of the trial court. See Callanan v. United States, 364 US 587, 597, 81 S Ct 321, 5 L Ed 2d 312 (1961) (recognizing principle). As one commentator has described it, a trial court’s discretion to make that decision is “[f] irmly rooted in common law.” Arthur W. Campbell, Law of Sentencing, § 9.12 at 278 (2d ed 1991).
Oregon, like many states, has codified the bases for making that discretionary decision; that is, the legislature has said that a court may exercise its discretion to impose consecutive sentences if it finds (1) that the offenses did not occur as part of the same course of conduct or (2) even if the offenses occurred as part of the same course of conduct, one offense was not incidental to the other or the two offenses resulted in separate harms. ORS 137.123. Because Oregon’s statute requires those factual findings as a predicate to imposing consecutive sentences and because consecutive sentences result in a longer aggregate sentence than concurrent sentences, the majority concludes that Apprendi applies to the decision to impose consecutive sentences.
Apprendi does not sweep as broadly as the majority perceives. Rather, the Court has been careful to explain that not “every fact with a bearing on sentencing must be found by a jury.” Jones v. United States, 526 US 227, 248, 119 S Ct 1215, 143 L Ed 2d 311 (1999). And it has not extended the reach of Apprendi beyond the issue that gave rise to it — the problem posed by determinate sentencing schemes that enhance a defendant’s sentence beyond the statutory maximum for a single offense on the basis of facts that a judge (rather than a jury) finds by a preponderance of the evidence (rather than beyond a reasonable doubt). See United States v. *269Booker, 543 US 220, 236-37, 125 S Ct 738, 160 L Ed 2d 621 (2005) (explaining that problem posed by determinate sentencing schemes gave rise to the rule in Apprendi). The majority errs in extending the rule in Apprendi farther than either the holding or the reasoning in that case warrants.
The issue before the Court in Apprendi was narrow. In that case, and the cases that have followed it, a trial court had enhanced a defendant’s sentence for a single offense beyond the statutory maximum authorized for that offense based on a fact that the court had found during sentencing by a preponderance of the evidence. See, e.g., Apprendi, 530 US at 468-69 (describing the defendant’s sentence). The constitutional issue before the Court in each of those cases was whether the sentencing factor that the trial court had relied on to enhance the defendant’s sentence was, in effect, an element of the offense that a jury had to find beyond a reasonable doubt.1
Faced with that issue, the Court held in Apprendi: “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.” 530 US at 490. By its terms, the holding in Apprendi does not extend to the question of how a trial court should aggregate multiple sentences. Rather, the holding in Apprendi addresses the procedures that a trial court must follow when “the penalty for a crime [exceeds] the prescribed statutory maximum” for that crime. That is, Apprendi answers the question what are the elements of a single offense that the state must prove beyond a reasonable doubt. It does not answer the separate question of how a trial *270court should aggregate multiple sentences when a jury has found a defendant guilty of multiple offenses.
Neither the issue before the Court in Apprendi nor the terms of its holding suggest that the Court intended to announce a one-size-fits-all rule that applies to every factual finding that a trial court makes during sentencing — even when the finding affects the length of a defendant’s aggregate sentence. To be sure, in the course of describing its reasoning, the Court has sometimes referred broadly to increased or greater punishment. And the majority relies on such a statement to support its holding. But those statements should be viewed in the context of the issue before the Court and not considered in isolation. Doing otherwise attributes more meaning to the words than, in context, they fairly can bear.
Not only is the holding in Apprendi narrower than the majority perceives, but the problem that the Court sought to solve demonstrates that the holding does not extend as far as the majority concludes. The Court first noted the problem in Mullaney v. Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508 (1975). See Apprendi, 530 US at 484 (identifying Mullaney as initially recognizing problem). The Court had explained in Mullaney that, without some constitutional check, a state could avoid the due process requirement that it prove every element of a crime beyond a reasonable doubt “merely by redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment’ ” and permitting the trial court to find those factors by only a preponderance of the evidence. See Apprendi, 530 US at 485 (quoting Mullaney, 421 US at 698) (brackets in original).
Ordinarily, a legislature has broad authority to define (or redefine) the elements of a crime, and the problem that Mullaney posed and the Court faced over the next 25 years was how to articulate the limits that the constitution places on that authority. After Mullaney, the Court explained in Patterson v. New York, 432 US 197, 97 S Ct 2319, 53 L Ed 2d 281 (1977), that the legislature’s authority to define the elements of a crime “is not subject to proscription under the Due Process Clause unless it offends some principle of justice *271so rooted in the traditions and conscience of our people as to be ranked fundamental.” Id. at 201-02 (internal quotation marks omitted). Although the Court recognized in Patterson that “there are obviously constitutional limits beyond which the States may not go in this regard,” it did not attempt to identify those limits beyond noting that a legislature may not “ ‘declare an individual guilty or presumptively guilty of a crime.’ ” Id. (quoting McFarland v. American Sugar Rfg. Co., 241 US 79, 86, 36 S Ct 498, 60 L Ed 899 (1916)).
The broad authority that the Court recognized in Patterson invited statutes that permitted trial courts to find various “sentencing factors” by a preponderance of the evidence even though those sentencing factors could affect, often dramatically, the length of the sentence that a defendant would have to serve. The Court first addressed those types of statutes in 1986 in McMillan v. Pennsylvania, 477 US 79, 106 S Ct 2411, 91 L Ed 2d 67 (1986), and it returned to the issue 12 years later in Almendarez-Torres v. United States, 523 US 224, 118 S Ct 1219, 140 L Ed 2d 350 (1998). In each of those cases, the legislature had provided that the length of a defendant’s sentence for an offense would turn on facts that the trial court found by a preponderance of the evidence during sentencing,2 and the issue was whether, as a matter of constitutional law, those sentencing factors constituted elements of the offense.
In resolving that issue, the Court considered, among other things, whether the statute declared the defendant presumptively guilty of a crime, whether proof of the sentencing factor could increase the defendant’s sentence “from a nominal fine to a mandatory life sentence,” whether the legislature had tailored the sentencing factor “to be a tail which wags the dog of the substantive offense,” whether the statute “create [d] a separate offense calling for a separate penalty,” and whether the sentencing factor altered the maximum penalty for the offense. See McMillan, 477 US at 86-88 (setting out those factors); Almendarez-Torres, 523 US at 242-43 *272(same). Applying those factors, the Court held that the sentencing factors at issue in McMillan and Almendarez-Torres were not elements of the charged offenses, which the state had to prove beyond a reasonable doubt.
The Court approached the same issue differently in Apprendi and held, as Justice Scalia had urged in his dissenting opinion in Almendarez-Torres, 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.” Apprendi, 530 US at 490; see Almendarez-Torres, 523 US at 251 (Scalia, J., dissenting) (reasoning that a similar test should apply). The Court did so, as it later explained in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), to avoid the subjectivity inherent in the multifactor test that the Court had applied in McMillan and Almendarez-Torres. As the Court explained in Blakely, the multi-factor test that it had applied in McMillan and Almendarez-Torres reduced to nothing more than asking whether in enacting sentencing factors the legislature had gone “too far.”3 Far from seeking to require juries to decide beyond a reasonable doubt every fact that affects sentencing, the rule in Apprendi serves only to provide a nonsubjective means of determining when the legislature’s efforts to redefine the elements of a single offense will stay within constitutional bounds.
Were there any doubt about the scope of the rule from Apprendi, the passage that the majority quotes from Booker removes it. As that passage makes clear, the rule in Apprendi arose in response to “a new trend in the legislative regulation of sentencing” that the Court first recognized in 1986 in McMillan when it “considered the significance of *273facts selected by legislatures that * * * increased the range of sentences possible for the underlying crime.” 543 US at 236. That is, the Court adopted the rule in Apprendi to address determinate sentencing schemes that defined the maximum sentence for an offense but permitted a trial court to enhance the sentence for that offense if the trial court found certain “sentencing factors” by a preponderance of the evidence.
The rule in Apprendi provides a means for determining whether those “sentencing factors” are elements of the offense that the state has to prove beyond a reasonable doubt. It does not have a broader reach. Indeed, the Court was careful to explain in Booker that the rule it announced in Apprendi was not intended to displace traditional sentencing practices. As the Court explained, “it is the new circumstances [first recognized in 1986], not a tradition or practice that the new circumstances have superseded, that have led [the Court] to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one.” Id. at 237. When the Court has explained, as it did in Booker, that the rule in Apprendi was intended to solve the problem posed by determinate sentencing schemes, we should be hesitant to extend Apprendi’s holding beyond the limits that the Court has identified. That is especially true when, as in this case, extending Apprendi displaces authority that trial courts traditionally have exercised — i.e., the authority to decide how to aggregate multiple sentences.
Not only is the majority’s decision today at odds with the holdings and reasoning of the Supreme Court’s cases, but it is out of line with the clear weight of authority. In states that require factual findings as a predicate to imposing consecutive sentences, almost every court that has considered the issue has held that Apprendi does not apply to the decision to impose consecutive sentences.4 Specifically, the courts *274in Colorado, Illinois, Indiana, Iowa, Louisiana, Maine, Minnesota, New Jersey, and Tennessee have held that Apprendi does not apply to the decision whether to impose consecutive sentences. See People v. Lehmkuhl, 117 P3d 98 (Colo Ct App 2004), cert den, 546 US 1109 (2006); People v. Wagener, 196 Ill 2d 269, 752 NE2d 430 (2001); Hong v. Sims, 221 Fed App’x 455 (7th Cir 2007) (considering constitutionality of Illinois sentencing law); Smylie v. State, 823 NE2d 679 (Ind), cert den, 546 US 976 (2005); State v. Jacobs, 644 NW2d 695 (Iowa 2001); State v. Hunter, 907 So 2d 200 (La Ct App 2005), rev den, 925 So 2d 507 (La 2006); State v. Keene, 927 A2d 398 (Me 2007); State v. Senske, 692 NW2d 743 (Minn Ct App 2005); State v. Abdullah, 184 NJ 497, 878 A 2d 746 (2005); State v. Davis, 2007 Term Crim App LEXIS 580 (July 19, 2007).
To be sure, there is a split among the states that have considered this recurring issue of federal law — a split that the majority’s decision deepens and confirms. One other state has held, as the majority does, that Apprendi applies in this context, State v. Foster, 109 Ohio St 3d 1, 845 NE2d 470 (2006) , and another state’s decisions provide mixed support for the majority’s decision. Compare State v. Cubias, 155 Wn 2d 549, 120 P3d 929 (2005) (holding that Apprendi does not apply to a factual prerequisite to imposing consecutive sentences), with In re VanDelft, 158 Wn 2d 731, 147 P3d 573 (2006) (holding that Apprendi does apply to a factual prerequisite to imposing consecutive sentences).5 Although the majority can count at least one and perhaps two states in its corner, the overwhelming number of state courts (and federal courts considering the constitutionality of state sentencing statutes) have held that Apprendi does not apply to the decision to impose consecutive sentences. Because I would not extend the rule in Apprendi beyond either the issue or the *275problem that the Court sought to solve in that case, I respectfully dissent.
Balmer, J., joins in this dissent.Blakely v. Washington, 542 US 296, 303, 124 S Ct 2531, 159 L Ed 2d 403 (2004) presented a variation on the issue in Apprendi: whether a guidelines sentence was a statutory maximum sentence within the meaning oí Apprendi. The Court held that it was, reasoning that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 US at 303 (emphasis omitted). In Booker, 543 US at 243-44, and Cunningham v. California, 549 US 270, 127 S Ct 856, 166 L Ed 2d 856 (2007), the Court held that the rule in Apprendi applies respectively to the United States’ and California’s determinate sentencing schemes; both prescribed mandatory sentencing ranges from which trial courts could impose upward departures only after finding certain facts.
In McMillan, the legislature had directed the trial court to impose a mandatory minimum sentence if the defendant had “visibly possessed” a gun during the commission of the crime. 477 US at 81. In Almendarez-Torres, Congress had authorized an enhanced sentence, beyond that authorized for the commission of the crime, if the defendant had a prior felony conviction. 523 US at 226.
The Court reasoned in Blakely that, under the multi-factor test in McMillan and Almendarez-Torres,
“legislatures may establish legally essential sentencing factors within limits— limits crossed when, perhaps, the sentencing factor is a ‘tail which wags the dog of the substantive offense.’ McMillan, 477 U.S., at 88. What this means in operation is that the law must not go too far — it must not exceed the judicial-estimation of the proper role of the judge. * * * The subjectivity of this standard is obvious.”
542 US at 307 (emphasis in original).
Procedurally, the decision to impose consecutive or concurrent sentences divides into three categories. First, some states presume, by statute or decision, that sentences should be imposed consecutively but permit “downward departures” from that presumption. Second, other states leave the issue to the unfettered discretion of the trial court. Third, some states, either by statute or judicial decision, require trial courts to find certain facts as a predicate to exercising their discretion to impose consecutive sentences. Oregon falls into the third category, as do many states. In referring to decisions from other jurisdictions, I refer only to *274decisions from jurisdictions that, like Oregon, require factual findings as a predicate to imposing consecutive sentences.
In Cubias, a state statute required the trial court to find that the offenses arose out of separate and distinct criminal conduct as a prerequisite to imposing consecutive sentences. 155 Wn 2d at 552. In VanDelft, a state statute presumed that the sentences would be concurrent but permitted the trial court to impose consecutive sentences if it made certain factual findings. 158 Wn 2d at 741-42. For the purposes of Apprendi, the two statutes are analytically identical. The only difference is that the latter statute poses the Apprendi issue in a more obvious way.