¶1 The trial court gave Michael Curtis an exceptional sentence after he pleaded guilty to two counts of second degree child molestation. After a commissioner of this court affirmed Curtis’s sentence, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh’g denied, 542 U.S. 961 (2004); Curtis moved for reconsideration. The State argues that Curtis admitted the facts supporting his [461] sentence during allocution and that even if he did not, the error was harmless. We hold that Curtis’s statements during allocution were not admissions and that Blakely violations are structural errors requiring automatic reversal. Accordingly, we reverse Curtis’s sentence and remand for resentencing.
Armstrong, J.
[461] FACTS
¶2 The State charged Curtis with two counts of second degree child molestation by amended information on April 21, 2003. Count one alleged that Curtis molested M.M.C. (birthdate June 1, 1987) and count two alleged that Curtis molested M.M.C.’s sister, B.J.H. (birthdate Feb. 26, 1984); both counts were alleged to have occurred between February 26, 1997, and May 31, 2001. Curtis pleaded guilty to both counts on April 25, 2003. The plea agreement recommended a standard range sentence of 36 months on each count, to run concurrently.
¶3 The trial court considered the presentence investigation report (PSI); the victim impact statements; and the oral statements by the victims, their mother and aunt, Curtis, and Curtis’s stepdaughter. At sentencing, Curtis said:
First off, I would like to say how profoundly sorry I am to my two victims. They trusted me as a friend and I used their trust and their friendship for my own twisted and selfish needs. I’m truly sorry for the pain and damage I have caused you. Don’t let someone like me stop you from having a fruitful and happy life.
To [the victim’s mother and stepfather], you were good friends and neighbors — [at this point, Curtis’s attorney began reading his statement for him].
You were good friends and neighbors and you didn’t deserve what I did to you and your family. You trusted me and I betrayed that trust.
[462] Report of Proceedings (RP) (May 27, 2003) at 15.1
¶4 The trial court imposed a 62-month exceptional sentence based on Curtis’s abuse of his position of trust as to both victims and on an ongoing pattern of sexual abuse of M.M.C. The court stated that it would impose the same sentence even if only one of these grounds was valid.
ANALYSIS
¶5 The State concedes that Blakely applies. But it argues that Curtis admitted the facts the court relied on when it imposed his exceptional sentence. In the alternative, the State argues that any Blakely error was harmless.
I. Admissions
¶6 In Blakely, the Court held 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.’ ” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (quoting 1 Joel Prentiss Bishop, Criminal Procedure, ch. 6, § 87, at 55 (2d ed. 1872)). The statutory maximum “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303.
f 7 The court based Curtis’s exceptional sentence on his abuse of a position of trust as to both victims and an ongoing pattern of sexual abuse as to M.M.C. But Curtis did not admit facts that would support an exceptional sentence [463] when he pleaded guilty. Rather, the State relies on the statement Curtis and his attorney read at sentencing and on Curtis’s statements to the PSI writer. Thus, we must decide whether Curtis’s unsworn, uncontroverted statements during his plea allocution constitute an admission under Blakely.
¶8 In discussing a defendant’s admissions, Blakely cites Apprendi, 530 U.S. at 488, which in turn discussed Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In Almendarez-Torres, the defendant pleaded guilty to a federal immigration crime with a maximum sentence of two years. At his plea hearing, the defendant admitted that the government had deported him once already after he had been convicted of three aggravated felonies. Almendarez-Torres, 523 U.S. at 227-30. Because of this, he was subject to an exceptional sentence in excess of two years. Almendarez-Torres, 523 U.S. at 227. Explaining why it approved of this procedure in Almendarez-Torres, the Apprendi Court said:
Because [the defendant] had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury-trial or the standard of proof that would apply to a contested issue of fact was before the Court.
Apprendi, 530 U.S. at 488.
¶9 Here, Curtis made his purported admissions during a sentencing allocution, not at his plea hearing. In Washington, the defendant has a statutory right to allocute. In re Pers. Restraint of Echeverría, 141 Wn.2d 323, 335, 6 P.3d 573 (2000). Under the current allocution statute, the court must allow argument from the defendant “as to the sentence to be imposed.” RCW 9.94A.500(1). But “[alllocution is a plea for mercy; it is not intended to advance or dispute facts.” State v. Lord, 117 Wn.2d 829, 897, 822 P.2d 177 (1991); see also In re Pers. Restraint of Benn, 134 Wn.2d 868, 893, 952 P.2d 116 (1998) (in penalty phase of capital [464] case, only legitimate purpose of defendant’s allocution was to express remorse and ask for mercy).
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¶1 The trial court gave Michael Curtis an exceptional sentence after he pleaded guilty to two counts of second degree child molestation. After a commissioner of this court affirmed Curtis’s sentence, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh’g denied, 542 U.S. 961 (2004); Curtis moved for reconsideration. The State argues that Curtis admitted the facts supporting his [461] sentence during allocution and that even if he did not, the error was harmless. We hold that Curtis’s statements during allocution were not admissions and that Blakely violations are structural errors requiring automatic reversal. Accordingly, we reverse Curtis’s sentence and remand for resentencing.
Armstrong, J.
[461] FACTS
¶2 The State charged Curtis with two counts of second degree child molestation by amended information on April 21, 2003. Count one alleged that Curtis molested M.M.C. (birthdate June 1, 1987) and count two alleged that Curtis molested M.M.C.’s sister, B.J.H. (birthdate Feb. 26, 1984); both counts were alleged to have occurred between February 26, 1997, and May 31, 2001. Curtis pleaded guilty to both counts on April 25, 2003. The plea agreement recommended a standard range sentence of 36 months on each count, to run concurrently.
¶3 The trial court considered the presentence investigation report (PSI); the victim impact statements; and the oral statements by the victims, their mother and aunt, Curtis, and Curtis’s stepdaughter. At sentencing, Curtis said:
First off, I would like to say how profoundly sorry I am to my two victims. They trusted me as a friend and I used their trust and their friendship for my own twisted and selfish needs. I’m truly sorry for the pain and damage I have caused you. Don’t let someone like me stop you from having a fruitful and happy life.
To [the victim’s mother and stepfather], you were good friends and neighbors — [at this point, Curtis’s attorney began reading his statement for him].
You were good friends and neighbors and you didn’t deserve what I did to you and your family. You trusted me and I betrayed that trust.
[462] Report of Proceedings (RP) (May 27, 2003) at 15.1
¶4 The trial court imposed a 62-month exceptional sentence based on Curtis’s abuse of his position of trust as to both victims and on an ongoing pattern of sexual abuse of M.M.C. The court stated that it would impose the same sentence even if only one of these grounds was valid.
ANALYSIS
¶5 The State concedes that Blakely applies. But it argues that Curtis admitted the facts the court relied on when it imposed his exceptional sentence. In the alternative, the State argues that any Blakely error was harmless.
I. Admissions
¶6 In Blakely, the Court held 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.’ ” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (quoting 1 Joel Prentiss Bishop, Criminal Procedure, ch. 6, § 87, at 55 (2d ed. 1872)). The statutory maximum “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303.
f 7 The court based Curtis’s exceptional sentence on his abuse of a position of trust as to both victims and an ongoing pattern of sexual abuse as to M.M.C. But Curtis did not admit facts that would support an exceptional sentence [463] when he pleaded guilty. Rather, the State relies on the statement Curtis and his attorney read at sentencing and on Curtis’s statements to the PSI writer. Thus, we must decide whether Curtis’s unsworn, uncontroverted statements during his plea allocution constitute an admission under Blakely.
¶8 In discussing a defendant’s admissions, Blakely cites Apprendi, 530 U.S. at 488, which in turn discussed Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In Almendarez-Torres, the defendant pleaded guilty to a federal immigration crime with a maximum sentence of two years. At his plea hearing, the defendant admitted that the government had deported him once already after he had been convicted of three aggravated felonies. Almendarez-Torres, 523 U.S. at 227-30. Because of this, he was subject to an exceptional sentence in excess of two years. Almendarez-Torres, 523 U.S. at 227. Explaining why it approved of this procedure in Almendarez-Torres, the Apprendi Court said:
Because [the defendant] had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury-trial or the standard of proof that would apply to a contested issue of fact was before the Court.
Apprendi, 530 U.S. at 488.
¶9 Here, Curtis made his purported admissions during a sentencing allocution, not at his plea hearing. In Washington, the defendant has a statutory right to allocute. In re Pers. Restraint of Echeverría, 141 Wn.2d 323, 335, 6 P.3d 573 (2000). Under the current allocution statute, the court must allow argument from the defendant “as to the sentence to be imposed.” RCW 9.94A.500(1). But “[alllocution is a plea for mercy; it is not intended to advance or dispute facts.” State v. Lord, 117 Wn.2d 829, 897, 822 P.2d 177 (1991); see also In re Pers. Restraint of Benn, 134 Wn.2d 868, 893, 952 P.2d 116 (1998) (in penalty phase of capital [464] case, only legitimate purpose of defendant’s allocution was to express remorse and ask for mercy).
¶10 In State v. Serrano, 95 Wn. App. 700, 708-09, 977 P.2d 47 (1999), the court interrupted the defendant’s allocution and asked whether he was denying that the crime occurred. On advice of counsel, the defendant refused to answer. Serrano, 95 Wn. App. at 708-09. Division Three held that “[t]o the extent the sentencing court here sought to ascertain facts, its question in the context of [the defendant’s] allocution was improper.” Serrano, 95 Wn. App. at 709. But the court concluded that the error was harmless because the judge had not relied on the defendant’s silence in imposing an exceptional sentence. Serrano, 95 Wn. App. at 709. Here, however, the State asks us to uphold Curtis’s exceptional sentence because of his allocution statements.
¶11 Statements during allocution may be treated as factual testimony in some cases. In Lord, the allocuting defendant denied making statements to jailhouse informants and gave his version of what he did the day the victim was murdered. Lord, 117 Wn.2d at 899. The court held that the trial court properly allowed the State to cross-examine the defendant because he had used allocution to present evidence as to the crime. Lord, 117 Wn.2d at 899-900; see also Benn, 134 Wn.2d at 893 (no ineffective assistance where counsel turned away from defendant when defendant used allocution to give unsworn testimony in support of self-defense claim). Curtis, however, did not offer facts as to whether he committed the crimes. He apologized to his victims and acknowledged his wrongdoing; he sought mercy, not to avoid his responsibility for the crimes.
¶12 Moreover, although a defendant may waive his Sixth Amendment right to have a jury find the facts necessary to support an exceptional sentence, the waiver must be knowing, voluntary, and intelligent. State v. Borboa, 124 Wn. App. 779, 792, 102 P.3d 183, 190 (2004). Curtis allocuted before Blakely was decided. He did not know at his sentencing that the State was obligated to prove to a jury beyond a [465] reasonable doubt the exceptional sentence facts. Thus, he could not knowingly, voluntarily, and intelligently waive his Blakely rights. Borboa, 124 Wn. App. at 792.
II. Harmless Error
¶13 The State argues that the Blakely violation is harmless error under Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). We recently held, however, that Blakely error is structural, not subject to harmless error analysis. State v. Fero, 125 Wn. App. 84, 101-02, 104 P.3d 49, 58 (2005).
III. Remand
¶14 We vacate Curtis’s exceptional sentence and remand for resentencing. If the State pursues an exceptional sentence, it must prove the supporting facts to a jury beyond a reasonable doubt. State v. Harris, 123 Wn. App. 906, 927-28, 99 P.3d 902 (2004).
¶15 Reversed and remanded for resentencing.
Morgan, A.C.J., concurs.