¶1 In a previous appeal, we remanded to the trial court for resentencing based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We later accepted discretionary review1 when the sentencing court certified to us the following question: “Whether the [sentencing] Court [on remand] has jurisdiction to impanel a jury pursuant to RCW 9.94A.537(2) for the purpose of considering an aggravating factor not specifically contained in RCW 9.94A.535(3).” Clerk’s Papers (CP) at 15. Defendant John McNeal argues that if the sentencing court lacked the authority to impanel a jury to find the exceptional sentencing factor, he is entitled to a standard range sentence on remand.2

¶2 The State concedes that its request to impanel a jury on remand to determine the “free crimes”3 factor was improvident because there is no statutory authority for such action. Nonetheless, the State argues that McNeal is not entitled to resentencing within the standard range because RCW 9.94A.535(2)(c) authorizes the sentencing court to consider the “free crimes” factor without a jury finding. Agreeing with the State, we remand for resentencing with instructions that the trial court may consider the “free crimes” factor without impaneling a jury and it need not consider only a standard range sentence.

*345FACTS

I. Conviction and Original Sentence

¶3 In 1997, a jury convicted John Kevin McNeal of vehicular homicide, vehicular assault, and possession of a controlled substance with intent to deliver.4 State v. McNeal, 142 Wn. App. 777, 780 n.1, 175 P.3d 1139 (2008) (McNeal II); State v. McNeal, 98 Wn. App. 585, 590, 991 P.2d 649 (1999) (McNeal I), aff’d in part, 145 Wn.2d 352 (2002). The trial court imposed two exceptional sentences — an above-range sentence on the possession with intent to deliver conviction and consecutive sentences for all three convictions. The trial court

gave two reasons for the exceptional sentences: (1) the standard sentence would be clearly too lenient because the multiple offense policy would result in two offenses essentially going unpunished, citing State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d 319 (1991)[5] (apparently justifying the consecutive sentences); and (2) McNeal’s extensive criminal history indicates his failure to take advantage of opportunities to “improve himself,” (apparently justifying the exceptional sentence of the conviction for possession with intent to deliver).

McNeal I, 98 Wn. App. at 598.6

*346II. First Appeal (.McNeal I)

¶4 McNeal appealed his vehicular assault and vehicular homicide convictions and the exceptional sentences; we affirmed. McNeal I, 98 Wn. App. at 600. Our Supreme Court then affirmed the convictions but did not reach any sentencing issues, leaving McNeal’s exceptional sentences intact. State v. McNeal, 145 Wn.2d 352, 37 P.3d 280 (2002). McNeal’s first direct appeal mandated on January 30, 2002. See McNeal II, 142 Wn. App. at 783.

III. Blakely

¶5 On June 24, 2004, the United States Supreme Court issued Blakely, holding that Washington’s sentencing procedures, which permitted the trial court to enhance a defendant’s sentence based on information the State had *347not proved to a jury beyond a reasonable doubt, violated a defendant’s Sixth Amendment right to a jury trial. 542 U.S. at 305. Blakely clarified that the relevant “statutory maximum” was “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” “not the maximum sentence a judge may impose after finding additional facts.” 542 U.S. at 303-04 (emphasis omitted).

IV. Personal Restraint Petition

¶6 McNeal next filed a personal restraint petition (PRP).7 See McNeal II, 142 Wn. App. at 783. In a supplement to his petition, he challenged the length of his sentence, arguing that it exceeded the statutory maximum.8 See McNeal II, 142 Wn. App. at 783. We granted relief on the original petition,9 holding that McNeal’s sentence on the drug offense combined with his term of community custody exceeded the statutory maximum for that offense. See McNeal II, 142 Wn. App. at 783-84. “Thus, we ‘vacated’ and remanded McNeal’s sentence for his drug convictions; we left his sentences for the other counts intact.” McNeal II, 142 Wn. App. at 784.

¶7 On remand, the sentencing court determined that McNeal’s case had been final before the Supreme Court issued Blakely and, therefore, Blakely neither applied nor required impaneling a jury to consider the exceptional sentence factors. See McNeal II, 142 Wn. App. at 784. “The [resentencing] court also adopted the previous court’s findings of fact and conclusions of law supporting the excep*348tional sentences, which it reimposed, including running the sentences consecutively.” McNeal II, 142 Wn. App. at 785.

V. Second Appeal (.McNeal II)

¶8 McNeal again appealed, this time arguing that the second sentencing court erred when it ruled that Blakely did not apply to his resentencing on remand. McNeal II, 142 Wn. App. at 781. Relying on the finality interpretation in In re Pers. Restraint of Skylstad, 160 Wn.2d 944, 949-50, 162 P.3d 413 (2007), the State agreed that the trial court’s failure to apply Blakely on remand was error. McNeal II, 142 Wn. App. at 786-87. Accepting the State’s concession, McNeal II, 142 Wn. App. at 786-87, the majority of the panel held:

In In re Personal Restraint of VanDelft, our Supreme Court held that a jury, rather than the sentencing court, must find the exceptional sentencing factors supporting the imposition of consecutive sentences under RCW 9.94A.589(1)(a). 158 Wn.2d 731, 743-44, 147 P.3d 573 (2006), cert. denied, [550 U.S. 980] (2007).[10] Additionally, under State v. Ose, 156 Wn.2d 140, 149, 124 P.3d 635 (2005), and State v. Hughes, 154 Wn.2d 118, 133-37, 110 P3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), a jury must find facts supporting an exceptional sentence beyond the standard range. On remand, a specially-empanelled jury can consider such facts, including those the trial court used to justify the exceptional sentence for McNeal’s current drug offense.

Because Blakely applied to McNeal’s resentencing proceedings, we hold that the trial court erred when it, rather than a jury, made the factual determinations required to impose the exceptional sentences. Accordingly, we again vacate McNeal’s sentences and remand for resentencing.

McNeal II, 142 Wn. App. at 788-89 (footnotes omitted). We also held that RCW 9.94A.537(2) authorized the trial court *349to impanel a jury on resentencing to determine any aggravating factors under the 2007 version of RCW 9.94A.537.11 McNeal II, 142 Wn. App. at 792, 794.12

VI. Remand for Resentencing; Jury Impaneled

¶9 On remand, the State notified the sentencing court and McNeal that it intended to seek exceptional sentences based on numerous exceptional sentencing factors.13 Later, the State abandoned most of these factors and relied instead on only one — that McNeal had committed multiple current offenses and his current high offender score would result in some current offenses going unpunished if McNeal were sentenced within the standard range, the exceptional sentencing factor listed in RCW 9.94A.535(2)(c).

*350¶10 Initially, the State had moved for a sentencing hearing at which the court, rather than a jury, would determine the sole remaining exceptional factor. Later, however, the State asked the sentencing court to impanel a jury to consider this exceptional sentencing factor, based on our remand direction to the sentencing court, which the State interpreted as requiring that a jury determine any exceptional sentencing factor.14 McNeal objected, arguing that (1) the State could not pursue an exceptional sentence because it had failed to provide the required RCW 9.94A-.537(1) pretrial notice; and (2) RCW 9.94A.535(2), which lists the exceptional sentencing factors the sentencing court may determine on its own, without a jury, did not authorize the sentencing court to impanel a jury to consider the remaining “free crimes” factor, which was not listed in RCW 9.94A.535(3), the statutory section enumerating the aggravating factors that require a jury determination.

¶11 Rejecting McNeal’s arguments, the resentencing court granted the State’s request, stayed the sentencing, and certified its order to us15 to consider “whether the Court has jurisdiction to impanel a jury pursuant to RCW 9.94A.537(2) for the purpose of considering an aggravating factor not specifically contained in RCW 9.94A.535(3).” CP *351at 15. McNeal sought discretionary review, which our court commissioner granted.16

ANALYSIS

I. Authority to Impanel Jury

¶12 McNeal argues that the resentencing court erred when it granted the State’s motion to impanel a jury to consider an aggravating factor enumerated in RCW 9.94A.535(2) and, therefore, we should vacate the order allowing the State to impanel a jury and remand for resentencing within the standard range.17 The State concedes that the sentencing court lacked authority to impanel a jury to consider the sole remaining RCW 9.94A.535(2) aggravating factor. But the State also argues that the resentencing court can consider the alleged aggravating factor on its own, without requiring a jury determination, under RCW 9.94A.537(2).

¶13 McNeal and the State are correct that there is no authority allowing the resentencing court to impanel a jury to consider the “free crimes” aggravating factor. But McNeal’s proposed remedy that we remand for resentencing within the standard range is not correct. We agree with the State that RCW 9.94A.537(2) does not prohibit the *352resentencing court from considering the sole remaining “free crimes” aggravating factor without a jury and that the resentencing court can impose an exceptional sentence based on such a factor.

A. Authority

¶14 Our Supreme Court has held that trial courts do not have inherent authority to impanel a jury to determine exceptional sentencing factors. State v. Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130 (2007); Hughes, 154 Wn.2d at 151-52. Thus, McNeal is correct that unless a statute gives the sentencing court authority to impanel a jury, it cannot do so here. Here, however, there is such a statute.

¶15 RCW 9.94A.537(2), which the legislature enacted in 2007 in response to the Supreme Court’s decision in Pillatos, provides:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

(Emphasis added.) Whether RCW 9.94A.537(2) precludes a resentencing court from impaneling a jury on remand, when the State alleges an aggravating factor under only RCW 9.94A.535(2), rather than RCW 9.94A.535(3), is a question of statutory interpretation.18

*353¶16 The plain language of RCW 9.94A.537(2), quoted above, authorizes a resentencing court to impanel a jury only when the alleged aggravating circumstance is listed in RCW 9.94A.535(3).19 In contrast, RCW 9.94A.537(2) does not expressly authorize the sentencing court to impanel a jury in other circumstances, such as those here, where the sole aggravating factor falls under RCW 9.94A.535(2),20 rather than RCW 9.94A.535(3).

¶17 The State contended below that arguably discretionary language in RCW 9.94A.535(2), namely use of the *354word “may” to describe the court’s authority to determine certain aggravating factors on its own, gave the resentencing court alternative discretion to impanel a jury to decide an aggravating factor listed in this subsection. We disagree. RCW 9.94A.535(2)’s provision that a resentencing court, rather than a jury, “may” make certain findings does not also allow the resentencing court to impanel a jury to consider this subsection’s aggravating sentencing factors, which the legislature has expressly delegated to the court to decide without a jury.

¶18 Agreeing with the State’s argument on this point on appeal, we accept its concession of error in having requested the impaneling of a jury to determine a RCW 9.94A.535(2) aggravating factor on remand for resentencing. Accordingly, we vacate the resentencing court’s order granting the State’s request for a jury trial on the alleged aggravating factor. We now address the remedy on remand for McNeal’s next resentencing.

B. Remedy

¶19 Citing State v. Vance, 142 Wn. App. 398, 174 P.3d 697 (2008), rev’d on other grounds, 168 Wn.2d 754 (2010), McNeal argues that if the resentencing court lacked authority to impanel a jury to determine the “free crimes” aggravating factor, he is entitled to a standard range sentence on remand. The State counters that the resentencing court can consider this factor on remand without a jury. We agree with the State.

¶20 In Vance, the aggravating factor involved a factual finding — whether a non-exceptional sentence resulted in punishment that was “clearly too lenient” — which, at that time, a jury was required to determine under VanDelft, 158 Wn.2d at 734. Vance, 142 Wn. App. at 401-02.21 Division *355One of our court remanded for resentencing within the standard range because there was no then-existing procedure for impaneling a jury to consider the “clearly too lenient” factor: This factor was not listed in RCW 9.94A-.535(3), which provided “ ‘an exclusive list’ of the factors a jury may consider in deciding whether to impose a sentence above the standard range.” Vance, 142 Wn. App. at 407 (emphasis omitted).

¶21 Unlike in Vance, here, the exceptional sentencing factor the State alleges does not involve any factual finding that a jury must make under RCW 9.94A.535(3). Furthermore, the legislature has crafted a procedure for the sentencing court to consider particular enumerated exceptional sentencing factors, including the “free crimes” factor alleged here. See RCW 9.94A.535(2)(c). Accordingly, Vance does not apply.

¶22 RCW 9.94A.535(2)(c) and, now, Vance, 168 Wn.2d at 762-63, authorize the resentencing court to determine the “free crimes” exceptional sentencing factor. Therefore, we remand to the resentencing court to consider this factor and, if it finds this factor, to consider imposing consecutive sentences, a type of exceptional sentence under RCW 9.94A.589(1)(a).22

II. Notice

¶23 McNeal next argues that the State cannot pursue an exceptional sentence on remand because of lack of pretrial notice. He asserts that such notice was required under RCW 9.94A.537(1) and under the state and federal constitutions. This argument fails.

*356¶24 At the outset, we note that although McNeal raised this notice issue below and in his motion for discretionary review, the sentencing court did not certify this question to us. Thus, our commissioner did not address this issue in granting review, and we could decline to address this notice issue as outside the scope of discretionary review. Nevertheless, because this issue could arise again and the parties have addressed it fully in their briefs, we address it now in an effort to avoid an unnecessary additional interlocutory appeal.

¶25 A six-member majority of the Washington Supreme Court recently rejected the essence of McNeal’s notice argument in State v. Powell, 167 Wn.2d 672, 223 P.3d 493 (2009). Powell, who was procedurally situated similarly to McNeal, challenged the sentencing court’s authority to impanel a jury to consider factors that supported an exceptional sentence, arguing, inter alia, that the State had failed to give notice of its intent to seek an exceptional sentence before his pre-Blakely retrial. Powell, 167 Wn.2d at 676. In an unpublished opinion, we had affirmed Powell’s conviction and sentence before the United States Supreme Court issued Blakely. See Powell, 167 Wn.2d at 676-77.

¶26 In a post -Blakely personal restraint petition, Powell successfully challenged his exceptional sentence; again, in an unpublished order, we remanded for resentencing. See Powell, 167 Wn.2d at 677. On remand, the State notified Powell that it intended to seek an exceptional sentence based on factors enumerated in RCW 9.94A.535(3); Powell objected based on lack of notice.23 Powell, 167 Wn.2d at 677. The Washington Supreme Court rejected Powell’s notice arguments, holding that (1) RCW 9.94A.537(l)’s notice requirements did not apply to post -Blakely cases remanded solely for resentencing, to which RCW 9.94A.537(2) applied; and (2) pretrial notice of intent to seek an exceptional sentence was not required under the state or federal consti*357tutions when the matter was remanded solely for resentencing.24 Powell, 167 Wn.2d at 679-80. Under Powell, pretrial notice of the State’s intent to seek exceptional consecutive sentences on remand for resentencing was not required.

¶27 We vacate the resentencing court’s ruling granting the State’s motion to impanel a jury to consider the sole remaining “free crimes” exceptional sentencing factor, and we remand for resentencing at which the court may determine this exceptional sentencing factor and decide whether to impose an exceptional sentence under RCW 9.94A.535(2).

Review denied at 169 Wn.2d 1030 (2010).