Majority: SAUFLEY, C.J., and DANA, CALKINS, and LEVY, JJ.
Dissent: CLIFFORD, RUDMAN, and ALEXANDER, JJ.
CALKINS, J.[¶ 1] Christian Averill appeals his sentence for gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(A) (Supp.2002),1 imposed after a jury trial in the Superior Court (Androscoggin County, Delahanty, J.). Averill contends that his sentence is illegal because it was imposed in violation of his Sixth Amendment right to a jury determination of the facts necessary to impose a sentence exceeding twenty years. Consistent with our opinion today in State v. Schofield, 2005 ME 82, 2005 WL 1529678, we find that the process used in setting Averill’s sentence violated his Sixth Amendment, rights and remand the case for resentencing.
I. BACKGROUND AND PROCEDURE
[¶ 2] Averill was indicted for the gross sexual assault of a student on a college campus in Lewiston during the night of April 5, 2002. In a proceeding pursuant to M.R.Crim. P. 11, Averill pleaded guilty to the gross sexual assault charge. In return for his plea, the State recommended a sentence of twenty years, with all but twelve years suspended and a period of probation for ten years. The court ordered a presentence report by the Division of Probation and Parole and a forensic evaluation by the State Forensic Service.
[¶ 3] After reviewing the presentence and forensic reports, the court concluded that the recommended sentence was not sufficient. The court allowed Averill to withdraw his guilty plea, M.R.Crim. P. llA(e), and the matter was tried before a jury, which found him guilty of gross sexual assault. At sentencing, the court noted that it had reviewed the presentence and forensic reports that had been filed earlier as well as the parties’ sentencing memo-*521randa. It also had a report from Averill’s expert and a letter from the victim’s parents, and the victim’s father spoke at the sentencing hearing.
[¶4] The court followed the three-step statutory sentencing process. 17-A M.R.S.A. § 1252-C (Supp.2004); see State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993). In arriving at the basic sentence, the first step in the sentencing process, 17-A M.R.S.A. § 1252-C(1), the court considered whether to impose a prison term in excess of twenty years. The court concluded that the offense “rank[ed] among the most heinous ways” that gross sexual assault could be committed and that an upper range sentence was justified. The court set the basic sentence at twenty-eight years.
[¶ 5] In the second step in the sentencing process, the court analyzed the mitigating and aggravating factors. 17-A M.R.S.A. § 1252-0(2). The court noted Averill’s juvenile record and Averill’s acquittal on another charge of gross sexual assault, specifically recalling that Averill’s testimony in the other trial demonstrated “his callous attitude towards sex and his attitude towards women as objects.” The court concluded that the aggravating factors substantially outweighed the mitigating factors and increased the basic sentence of twenty-eight years to a maximum sentence of thirty-four years. In the final step of the sentencing analysis, 17-A M.R.S.A. § 1252-0(3), the court suspended all but twenty-four years and placed Averill on probation for ten years because of its assessment of Averill’s risk to reof-fend.
[¶ 6] We granted Averill leave to appeal the sentence pursuant to 15 M.R.S.A. §§ 2151-2157 (2003) and M.R.App. P. 20. He has not appealed the conviction. The case was first argued shortly before the decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and we heard further arguments on the Blakely issue a few months later.
II. DISCUSSION
A. Sixth Amendment Violation
[¶ 7] In Schofield, 2005 ME 82, ¶¶ 20-21, 876 A.2d at 49-50, we held that because a factual finding of heinousness is a prerequisite to a sentence in the twenty- to forty-year range, a criminal defendant has a Sixth Amendment right to have a jury determine heinousness beyond a reasonable doubt. Averill argues that he was entitled to have the issue of heinousness presented to the jury and was denied his Sixth Amendment rights when a sentence in excess of twenty years was imposed without his being given the opportunity to have a jury make that determination. Id. ¶¶ 28-36, 876 A.2d at 52-54.
[¶ 8] Averill, like the defendant in Schofield, did not raise the Sixth Amendment issue in the trial court. In Schofield, we applied the obvious error standard of review, and for the reasons expressed therein, we apply the same standard here.
[¶ 9] Averill was sentenced pursuant to 17-A M.R.S.A. § 1252(2)(A) (Supp.2001),2 which authorized the court to sentence him to a maximum term of twenty-to-forty years “based on either the nature and seriousness of the crime alone or on the nature and seriousness of the crime coupled with the serious criminal history of the defendant.” 17-A M.R.S.A. § 1252(2)(A). Unlike the defendant in Schofield, Averill has a criminal history. The transcript of the court’s sentencing hearing, however, indicates that the court’s *522determination that Averill’s offense qualified for a maximum sentence of in the range of twenty-to-forty years was based solely on its finding that Averill’s crime was among the most heinous. Because we cannot determine from this record, beyond a reasonable doubt, that a jury acting rationally would have found that Averill’s crime was among the most heinous crimes committed against a person, we must conclude that the sentencing process here constitutes obvious error affecting substantial rights. Therefore, we vacate his sentence and remand for resentencing pursuant to the procedures specified in Schofield.
B. Resentencing
[¶ 10] As we stated in Schofield, Averill can be sentenced without further fact-finding to a sentence of twenty years or less. Schofield, 2005 ME 82, ¶ 40, 2005 WL 1529678,. A sentencing trial is required if the State recommends, and/or the court is inclined to impose, a sentence in excess of twenty years based on heinousness. Id. If a jury3 finds that Averill’s crime is among the most heinous, the court may sentence him in the upper range.
[¶ 11] Averill has not argued that an upper range sentence based not on heinousness, but instead on the “nature and seriousness of the crime coupled with the serious criminal history of the defendant,” 17-A M.R.S.A. § 1252(2)(A), requires a jury to find facts. Therefore, we do not opine on the Sixth Amendment requirements in that regard except to note that in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court excluded “the fact of a prior conviction” from the Sixth Amendment requirement of a jury trial.
The entry is:
Sentence vacated. Remanded to the Superior Court for proceedings consistent with this opinion.
. This statute has been amended since Ave-rill's conviction. P.L. 2003, ch. 383, § 14 (effective January 31, 2003) (codified at 17-A M.R.S.A. § 253(1)(A) (Supp.2004)).
. Title 17-A M.R.S.A. § 1252(2)(A) has since been amended by P.L.2003, ch. 657, § 10 (effective July 30, 2004) (codified at 17-A M.R.S.A. § 1252(2)(A) (Supp.2004)).
. Averill could waive a jury trial, in which case the court would act as the fáct-finder. Whether it is the jury or the court, the burden of proof is beyond a reasonable doubt.