State v. Borboa ( 2006 )

¶32

Sanders, J.

(dissenting) — The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant. For the reasons stated in my dissent to State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006), I disagree.

133 The sixth amendment to the United States Constitution prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296, 304-05, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403 (2004). An exceptional minimum sentence is a penalty. And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists. Consequently, a judge cannot impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.

134 I dissent.