with whom RUDMAN, and ALEXANDER, JJ., join, dissenting.
[¶ 42] I respectfully dissent. In my view the discretionary determinations made by our sentencing judges that can result in a sentence in excess of twenty years for a Class A offense do not implicate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); or United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I would conclude that the sentence of Sally A. Schofield does not violate the Sixth Amendment to the United States Constitution.
[¶ 43] We have long held that facts incident to a crime that may enhance a penal*939ty for that crime above the standard sentence must be pleaded and proved by the State beyond a reasonable doubt. See State v. Briggs, 2003 ME 137, ¶ 5, 837 A.2d 113, 116 (holding that a two-year period of probation could not be imposed in the absence of pleading and proof that crime involved domestic assault); see also State v. Hodgkins, 2003 ME 57, ¶¶9-11, 822 A.2d 1187, 1191-93; State v. Burdick, 2001 ME 143, ¶ 20, 782 A.2d 319, 325-26 (holding that status of the victim as a law enforcement officer must be pleaded and proved beyond a reasonable doubt to jury for enhanced penalty provision of statute to apply); State v. Wheeler, 252 A.2d 455, 456 (Me.1969); State v. Ferris, 249 A.2d 523, 528 (Me.1969) (holding that sentencing a defendant for felony aggravated assault following conviction by jury of misdemeanor assault violated defendant’s right to jury trial).
[¶44] The sentence enhancing factors found by the sentencing court in Apprendi, 530 U.S. at 468-69, 120 S.Ct. 2348 (finding that the crime was a hate crime, meaning that it was committed “ ‘with a purpose to intimidate ... because of race, color, gender, handicap, religion, sexual orientation, or ethnicity’ ”), and by the sentencing court in Blakely, 542 U.S. at 302-04, 124 S.Ct. at 2537 (finding that the act was committed with “ ‘deliberate cruelty1 ”), are discrete objective factual findings. See State v. Lett, 2005 Ohio 2665, ¶ 21, 161 Ohio App.3d 274, 829 N.E.2d 1281 (2005) (observing that objective findings such as those found in Blakely and Booker could easily have been charged as elements of the offense and are readily amenable to disposition at trial). If such findings were the kind that our statute required to be made to justify a sentence for Schofield in excess of twenty years, I would agree with the Court that those findings would have to be made beyond a reasonable doubt. Indeed, in my view our existing jurisprudence would require that they be pleaded and proved beyond a reasonable doubt.
[¶ 45] The Supreme Court’s most recent decision on this issue offers little clarity as to the issue raised by the sentence of Schofield. In Booker, the Court concluded that the federal sentencing guidelines violate the Sixth Amendment to the United States Constitution because those guidelines applicable to the federal indeterminate sentencing scheme are mandatory and require the sentencing court to impose higher sentences based on findings of fact made by a judge, and not a jury. 543 U.S. at 233-34, 125 S.Ct. at 750-51. Maine has determinate sentencing and does not have such sentencing guidelines.
[¶ 46] At the time of Schofield’s sentence, our law provided that the maximum penalty for conviction of a Class A crime was forty years. 17-A M.R.S.A. § 1252(2)(A) (Supp.2001). Pursuant to that section, in order to sentence a Class A offender to more than twenty years, the sentencing court must consider the nature and seriousness of the crime either alone or coupled with the serious criminal history of the defendant — factors that have historically and appropriately been for the sentencing judge to take into account — and to determine whether those factors justify a sentence exceeding twenty years. 17-A M.R.S.A. § 1252(2)(A).
[¶ 47] Athough section 1252(2)(A) clearly provides for forty-year sentences for conviction for Class A crimes, the Court concludes that within the meaning of Blakely, twenty years is, without any additional findings, the default statutory maximum that a court may impose. In my view, it is unnecessary to decide whether the twenty-year sentence is a default statutory maximum for purposes of Apprendi and Blakely.
*940[¶ 48] Pursuant to 17-A M.R.S.A. § 1252(2)(A), the considerations undertaken by our sentencing courts in imposing a sentence in excess of twenty years for a Class A offense are not the kind of discrete factual findings that were made in Apprendi and Blakely to justify an enhanced sentence, and that the Sixth Amendment requires that a jury should make. A defendant’s criminal history is not an appropriate area of scrutiny for a jury to undertake. Moreover, when the court assesses the nature and seriousness of Schofield’s crime, and determines whether it is among the most heinous and violent crimes that can be committed against a person, the court is undertaking an evaluative analysis comparing Scho-field’s crime with the ways that other criminal acts can be committed. Such a subjective review of sentencing factors and circumstances has traditionally been left to judges. These evaluative considerations are very different from the kind of discrete findings of fact that juries have traditionally made, like the specific facts that were required to be found in Blakely and Ap-prendi before an enhanced sentence could be imposed.
[¶ 49] Although the Court correctly notes that death penalty sentencing criteria include heinousness as a factor that has been considered by juries, most of the determining factors that must be considered in such cases are more traditional discrete findings of fact appropriate for juries to make.10 This is not so under section 1252(2)(A), pursuant to which only criminal history and comparative heinousness are to be considered. These determinations have always been, and should continue to be, appropriate for judges and not for juries to make.11
[¶ 50] The rule enunciated in Blakely is not intended to infringe on judicial fact-finding traditionally employed in the exercise of judicial discretion in imposing a sentence. In Apprendi, for example, the sentence was enhanced because the court made a discrete factual finding that the crime was racially motivated, a finding incident to the crime. 530 U.S. at 471, 120 S.Ct. 2348. Similarly, in Blakely, the court found that the defendant acted with “ ‘deliberate cruelty,’ ” Blakely, 542 U.S. at 302-04, 124 S.Ct. at 2537, a discrete factual determination that can be, and has been, traditionally considered by a jury. Thus, what is protected is the jury’s function to find facts incident to the crime that may affect the penalty imposed. Id. at 325-27, 124 S.Ct. at 2540.
[¶ 51] As noted above, facts incident to a crime that may enhance a penalty for that *941crime, should be and, pursuant to our existing jurisprudence, must be, pleaded and proved by the state beyond a reasonable doubt. See Briggs, 2008 ME 137, ¶ 5, 837 A.2d at 116. In the present case, however, the determinations made by the court involved comparative evaluations always undertaken by the judge in sentencing, determinations that would be difficult, impractical, and improper for a jury to undertake.
[¶ 52] Because the determination of the seriousness and the heinousness of the crime in comparison to all the ways that the crime can be committed have always been, and should continue to be, for a judge and not for a jury to assess, I would conclude that the provisions of section 1252(2)(A) do not violate the Sixth Amendment, and that Apprendi; Blakely, and Booker do not operate to mandate that Schofield’s sentence be vacated. I would not remand for resentencing, but would address the propriety of Schofield’s sentence pursuant to our current sentencing jurisprudence.
ORDER OF RECONSIDERATION
PER CURIAM.The State’s Motion for Reconsideration is granted insofar as it requests reconsideration of the language in State v. Schofield, 2005 ME 82, ¶ 40, 895 A.2d 927, 938, relied on in State v. Averill, 2005 ME 83, ¶ 10, 887 A.2d 519, 522. All other portions of the State’s Motion for Reconsideration were previously denied by Order dated August 16, 2005.
Upon reconsideration, the Court amends paragraph 40 of Schofield opinion to reads as follows:
[¶ 40] On remand, Schofield may be sentenced constitutionally within the zero- to twenty-year range without the need for further fact-finding regarding heinousness. If the State recommends a sentence in the upper range, or if the court is inclined to impose such a sentence even in the absence of a recommendation, Schofield must be provided with the opportunity for a sentencing trial before the fact-finder of her choice (i.e., judge or jury). If she selects a jury, at the beginning of the proceeding, the trial judge should instruct the jury as follows:
You are being asked to make a decision today that will assist me in sentencing Ms. Schofield who has been convicted of the Class A offense of manslaughter.
In imposing sentences, judges are required to look at a number of circumstances concerning the defendant, the victim, and the commission of the crime. One of the circumstances that a jury is required to determine is whether the offense committed by the defendant is among the most heinous crimes committed against a person.
The parties will provide information and testimony from which you can evaluate the offense committed by Ms. Scho-field and determine whether it is among the most heinous committed against a person.
ALEXANDER, J., statement of noncurrence.
Because I do not believe that the original sentencing was affected by any error of law or that any jury trial is required for sentencing, I do not join this amendment order.
. When assessing whether to impose the death penalty, juries consider a variety of factors, such as whether a murder was committed by a convict under sentence of imprisonment, whether the defendant was previously convicted of another murder or felony, whether the murder was committed at the same time as the defendant committed another murder, whether the defendant created a great risk of death to many people, whether the murder was committed during the commission of a felony, whether the murder was committed to avoid lawful arrest, and whether the murder was committed for pecuniary gain. See Model Penal Code § 210.6(3) (1962); see also Conn. Gen. Stat. § 53a-46a(i) (West 2001); La. Code Crim. Proc. Ann. art. 905.4(A) (West 1997); Miss. Code Ann. § 99-19-101 (2000).
. Because the criteria set out in 17-A M.R.S.A. § 1252(2)(A) (Supp.2001) have been selected by our Legislature to be determined by a sentencing judge, we should be particularly reluctant to turn over such determinations to a jury without an amendment of the legislation creating the criteria. See State v. Hughes, 154 Wash.2d 118, 110 P.3d 192, 209 (2005) (holding that to create a means for the jury, on remand, to decide aggravating sentencing factors "out of whole cloth would be to usurp the power of the legislature”).