(concurring) — I agree that we should remand for sentencing within the standard range. However, I would *512grant relief on the basis that neither State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991) nor the Sentencing Reform Act of 1981 (SRA) provides us with the authority to redefine Rama as a "sex offender” in order to justify his exceptional sentence.
In Barnes, the Supreme Court held that because of distinctions drawn in the SRA between sexual and nonsexual offenses, future dangerousness can aggravate a sentence for a sexual offense but not for a nonsexual offense. Barnes did not decide whether a burglary committed with sexual motivation could be classified as a sexual offense. That question is now before us.
Neither the SRA nor the criminal code defines burglary as a sex offense. The majority nevertheless concludes that Rama "from a commonsense perspective” is a sex offender. This "common sense” test, which derives from State v. Stewart, 72 Wn. App. 885, 895, 866 P.2d 677 (1994), is the product of Stewart’s expansive reading of Barnes and Barnes’s expansive interpretation of the SRA’s alternative sentencing provision for sex offenders. Stewart, at 895, states that "nothing in Barnes compels the conclusion that future dangerousness may be applied only to those offenses defined as sex offenses in the SRA.” Stewart concludes that an offense is sexual for future dangerousness purposes if the defendant’s acts in committing the crime, viewed from a "commonsense perspective”, make the offense "capable of treatment as a sexual offense”. Stewart, at 895. Barnes is questionable authority for this proposition. The majority in Barnes refused to expand, without legislative guidance, the use of future dangerousness as an aggravating factor. This alone should make us reluctant to construe the term "sex offense” broadly.
Further, Barnes warned that future dangerousness is an inherently suspect factor because it "punishes an offender for a crime which the State has neither charged nor proven[.]” Barnes, 117 Wn.2d at 707; see RCW 9.94A.370(2); see also David Boerner, Sentencing in Washington 9-18 (1985). Rama *513was neither charged nor convicted as a sex offender and had no opportunity to defend against an allegation that he was a sex offender. Future dangerousness should therefore be rejected as an enhancement factor in his dase just as it was in State v. Ross, 71 Wn. App. 556, 861 P.2d 473 (1993). In Ross, "although there were alleged sexual elements of crimes involved, the State either did not prove them or dismissed the charges.” Ross, at 567.
Fundamentally, both Stewart and Barnes rely on a rehabilitative rationale to support their use of future dangerousness for sex offenders, see Barnes, 117 Wn.2d at 708-11; Stewart, at 895; see also Barnes, 117 Wn.2d at 713 (Guy, J., concurring) ("[t]he future dangerousness finding is partially a clinical-rehabilitative determination”). As the Supreme Court stated in summarizing the holding of Barnes:
Because the Legislature specifically authorized courts to consider a sexual offender’s amenability to treatment and the risk to the community of releasing the offender, see RCW 9.94A.120(7), future dangerousness is a proper consideration in sexual offense cases.
In re Vandervlugt, 120 Wn.2d 427, 433, 842 P.2d 950 (1992). Barnes and Stewart remove this rehabilitative inquiry from the boundaries within which the Legislature placed it.
As the sole statutory support for its rehabilitative rationale, Barnes cites RCW 9.94A.120(7), the sex offender sentencing alternative. But this statute does not play a role in lengthening sentences. From its inception, the purpose of this sentencing alternative has been to make treatment available to sex offenders. The standard range already reflects the Legislature’s assessment of the risk to the public presented by repeat sex offenders. RCW 9.94A. 120(7) does not evidence a legislative intent to single out sexual offenders for additional punishment beyond their standard range.
The purpose of RCW 9.94A.120(7), while
theoretically at odds with a desert-based philosophy, is accommodated within the structure of the Act by the limitation in every case that the deprivation of liberty, regardless of the form it takes, may never exceed that deserved by the crime and the criminal history of the offender. Within those bound*514aries the perceived rehabilitative needs of these offenders are allowed to influence the nature of the sentence, but never to extend it beyond what is otherwise deserved.
Just as with deterrence and incapacitation, the Act limits the extent to which rehabilitation can affect the sentence. This formulation of a method of principled coexistence of these historically warring concepts is the essence of the "reform” in the Sentencing Reform Act.
Boerner, at 2-37 (1985).
Currently, courts may order an evaluation to determine amenability to treatment only when sentencing a first-time sex offender for an offense that is not a "serious violent offense”. RCW 9.94A.120(7)(a).8 This provision strictly defines the only circumstances in which the SRA authorizes the courts to link sex offender sentencing to a treatment inquiry, all the while staying within the standard sentencing range. Barnes, in a major departure from the statutory framework, allows a court to consider amenability to treatment when sentencing a repeat sex offender and to sentence beyond the standard range if the offender is found to be untreatable.
Under Barnes, 117 Wn.2d at 705 and State v. Pryor, 115 Wn.2d 445, 799 P.2d 244 (1990), before using future dangerousness as an aggravating factor,
[a]t the minimum the trial court must have before it, in addition to a history of similar acts of sexual deviancy, the opinion of a mental health professional that the defendant would likely not he amenable to treatment.
Pryor, 115 Wn.2d at 455. Implicitly, as a precondition for imposing a standard range sentence, the court may require that a sex offender with a history of similar acts be found amenable to treatment.
When the standard sentence becomes conditional, the exceptional sentence becomes standard. This effect vitiates the SRA’s core purposes of proportionality and just punishment. Moreover, the SRA "carefully and emphatically denies *515the authority to require participation in rehabilitative programs.” Boerner, at 2-36. I would prefer not to perpetuate the inconsistency between existing case law and statutory authority by enlarging the group of sex offenders who may receive an exceptional sentence under Barnes and Pryor.
To the extent RCW 9.94A. 120(7) justifies applying future dangerousness to sex offenders — however tenuous the connection — it does not justify an exceptional sentence for Rama. The treatment-based sentencing alternatives under RCW 9.94A.120(7) are available only to offenders convicted of a "sex offense”. At the time of Rama’s conviction (prior to 1990), sexually motivated burglary was not defined as a "sex offense”;9 accordingly, the statute did not apply to Rama at sentencing. There is no evidence that Rama, while serving his sentence for a 1987 burglary conviction, was ever evaluated to determine his eligibility for a treatment-based sentence under the rehabilitative provisions of RCW 9.94A. 120(7). His conviction therefore should not, in fairness and rationality, be deemed a sex offense for the sole purpose of lengthening his incarceration.
The 1990 sexual motivation statute now provides a means to enhance the sentence of an offender such as Rama whose crime was committed for sexual gratification, see Laws of 1990, ch. 3, §§ 601-606, pp. 59-70. The sexual motivation allegation must be charged, presented to the finder of fact, and proved beyond a reasonable doubt. RCW 9.94A.127. Consistent with the SRA generally, the new statute allows a sentence to be lengthened based on the seriousness of the crime, without inquiry into the likelihood that the offender will be rehabilitated. This procedure is inapplicable in the present case because of ex post facto considerations, see Stewart, 72 Wn. App. at 894.
The majority states that its holding, as well as Stewart’s, is "necessarily limited” to prosecutions occurring before the effective date of the 1990 sexual motivation statute. Majority, *516at 507 n.4. I would hold that future dangerousness is an impermissible aggravating factor for nonsexual offenses committed with sexual motivation, whether prosecuted before or after the effective date of the 1990 sexual motivation statute. Absent the sexual motivation statute, Stewart concludes that a sentencing court has discretion to treat any criminal offense as a "sexual offense” — and thus to consider future dangerousness — with no criteria other than that the offense was "from a commonsense perspective . . . capable of treatment as a sexual offense.”10 Stewart, 72 Wn. App. at 895.1 cannot join in this analysis.
In summary, the majority, relying on Stewart, decides that Rama is a sex offender for the purpose of considering his future dangerousness. Majority, at 507. Noting the absence of objective evidence as to Rama’s lack of amenability to treatment, and following Pryor, the majority concludes that incarceration beyond the standard range is unwarranted. Majority, at 511. With this result, but for different reasons, I concur.
Reconsideration denied May 6, 1994.
Originally, the sex offender sentencing alternative permitted the sentencing court to inquire into treatment in connection with sentencing for other felony sex offenses as well. Subsequent amendments have removed that authority from the court except to the extent described above, see RCW 9.94A.120(7).
See Laws of 1990, ch. 3, § 602(29), p. 64 (definition of "sex offense”, showing amendment adding felony with a finding of sexual motivation); see also RCW 9.94A.030(31) (current definition).
But cf. Barnes, 117 Wn.2d at 711-12 ("[t]he extension of the future dangerousness factor to nonsexual offense cases . . . allows too broad a grant of discretion to the sentencing judge, which discretion the Legislature intended to limit”).