  IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                   NO. 91065-1
                          Petitioner,

             v.                                    EN BANC

SPENCER LEROY MILLER,
                                                   Filed    FEB 1 1 ~~016
                          Respondent.


      STEPHENS, J.-Ajury convicted Spencer Miller of two counts of attempted

first degree murder in 2002. The trial court imposed a 200-month sentence on each

count, to run consecutively pursuant to RCW 9.94A.589(1)(b). In an untimely

collateral attack, Miller argues that In re Personal Restraint of Mulholland, 161

Wn.2d 322, 166 P.3d 677 (2007), constitutes a significant change in the law

retroactively applicable to his sentence.    The trial court agreed and ordered

resentencing. We reject Miller's argument and vacate the trial court order.

                                 BACKGROUND

      Following Miller's 2002 conviction on two counts of attempted first degree

murder, the trial court imposed consecutive 200-month sentences, relying on RCW
State v. Miller (Spencer Leroy), 91065-1




9.94A.589(l)(b).     Miller timely appealed, asserting various trial errors but not

challenging his sentence. The Court of Appeals affirmed Miller's conviction and

sentence, State v. Miller, noted at 122 Wn. App. 1014 (2004), issuing its mandate in

2005.
        Five years later, Miller filed two CrR 7.8 motions in superior court, seeking

modification of his sentence. 1 Miller argued that his late-filed collateral attack on

his sentence was exempt from RCW 10.73.090(l)'s one-year time bar because

Mulholland-which interpreted RCW 9.94A.589(l)(b) as affording the trial court

discretion to impose concurrent sentences for serious violent offenses as a mitigated

exceptional sentence-qualifies as a significant change in the law under RCW

10.73.100(6). The trial court agreed. Concluding it had failed to recognize its

discretion to impose concurrent sentences underRCW 9.94A.589(l)(b), the superior

court vacated Miller's sentence and ordered new sentencing. The State appealed,

but the Court of Appeals affirmed. State v. Miller, 181 Wn. App. 201, 324 P.3d 791

(2014). We granted the State's motion for discretionary review. 182 Wn.2d 1028,

347 P.3d 459 (2015).

                                        ANALYSIS

        RCW 10.73.090(1) bars collateral attacks on a judgment and sentence "filed

more than one year after the judgment becomes final if the judgment and sentence

is valid on its face and was rendered by a court of competent jurisdiction." RCW


        1
         Although the trial court initially transferred the matter to the Court of Appeals for
 consideration as a personal restraint petition, the Court of Appeals rejected the transfer.

                                              -2-
State v. Miller (Spencer Leroy), 91065-1




10.73.100(6) prescribes three conditions that must be satisfied before a petitioner

can overcome the one-year time bar: (1) a substantial change in the law (2) that is

material and (3) that applies retroactively. In re Pers. Restraint of Gentry, 179

Wn.2d 614, 625, 316 P.3d 1020 (2014).

       Miller contends that his late-filed petition is excused from the one-year time

bar because Mulholland qualifies as a significant change in the law under RCW

10.73.100(6). We reject his argument.

       We have consistently recognized that the "significant change in the law"

exemption in RCW 10.73.100(6) applies when an intervening appellate decision

overturns a prior appellate decision that was determinative of a material issue. In re

Pers. RestraintofYung-Cheng Tsai, 183 Wn.2d 91, 104, 351P.3d138 (2015) (citing

In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000)).

Conversely, an intervening appellate decision that "settles a point of law without

overturning prior precedent" or "simply applies settled law to new facts" does not

constitute a significant change in the law. In re Pers. Restraint of Turay, 150 Wn.2d

71, 83, 74 P.3d 1194 (2003); accord In re Pers. Restraint of Domingo, 155 Wn.2d

356, 368, 119 P.3d 816 (2005). "'One test to determine whether an [intervening

case] represents a significant change in the law is whether the defendant could have

argued this issue before publication of the decision.'" In re Pers. Restraint of

Lavery, 154 Wn.2d 249, 258-59, 111P.3d837 (2005) (second alteration in original)

 (quoting In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 264, 36 P.3d 1005

 (2001)).


                                           -3-
State v. Miller (Spencer Leroy), 91065-1




         In Mulholland, this court held that RCW 9.94A.589(1)(b)'s plain meaning

gives the trial court discretion-upon finding mitigating factors-to impose
concurrent sentences for serious violent offenses as an exceptional downward
sentence.     161 Wn.2d at 329-31.         The court further held that the trial court's
erroneous belief that it lacked discretion to impose concurrent sentences constituted
a fundamental defect justifying collateral relief in that case. Id. at 332-33.
         Miller argues that Mulholland qualifies as a significant change in the law

because it "debunked dicta relied on in practice for years." Suppl. Br. of Resp't at
12. Specifically, Miller contends that dicta from State v. Jacobs, 154 Wn.2d 596,
115 P.2d 281 (2005) andin re Post Sentencing Review of Charles, 135 Wn.2d 239,

955 P.2d 798 (1998), contributed to an erroneous belief that no exceptions existed
to the consecutive sentence requirement for serious violent offenses under RCW
9.94A.589(1)(b). Suppl. Br. of Resp't at 11. Miller also claims that "overruling
controlling precedent is not required to find a 'significant change in the law."' Id.

at 10.
         Miller's arguments are unpersuasive. A "significant change in the law"
contemplates an intervening appellate decision that overturns a prior appellate
decision that was determinative of a material issue.          Tsai, 183 Wn.2d at 104.

Mulholland did not overturn a prior appellate decision that was determinative of a

material issue. Rather, Mulholland interpreted RCW 9.94A.589(1)(b) for the first
time.      161 Wn.2d at 328 (noting whether RCW 9.94A.589(l)(b) allows for
concurrent sentences "is a question we have not directly addressed").             Miller


                                              -4-
State v. Miller (Spencer Leroy), 91065-1




concedes this point in his supplemental brief by arguing that Mulholland simply

"debunked dicta." Suppl. Br. of Resp't at 12. Dispelling dicta, however, does not

constitute a significant change in the law. Domingo, 155 Wn.2d at 363-67 (holding

that dicta in an opinion cannot establish a rule or principle that can later be used to

establish "a significant change in the law").

       Miller's argument that Mulholland changed the ordinary practitioner's

understanding of RCW 9.94A.589(1)(b) does not support a retroactive application.

A "significant change in the law" requires that the law, not counsels' understanding

of the law on an unsettled question, has changed. Not only would Miller's proposed

rule directly conflict with our precedent, but it would create an unworkable standard

and foster uncertainty. Nothing prevented Miller from arguing at sentencing that the

trial court had discretion to impose concurrent sentences. Indeed, the fact that the

petitioner in Mulholland successfully argued that concurrent sentences are

permissible under RCW 9.94A.589(1)(b) demonstrates that the argument was not

previously "unavailable" to him.

       Because Mulholland does not qualify as a significant change in the law, Miller

cannot satisfy the exception under RCW 10.73.100(6) allowing an untimely

collateral attack. We therefore vacate the trial courts order for resentencing.

                                    CONCLUSION

       We reverse the Court of Appeals and vacate the trial court order for

resentencing.




                                           -5-
   State v. Miller (Spencer Leroy), 91065-1




    WE CONCUR:




,,,,,...--   --,"\


(I




                                              -6-
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)




                                  No. 91065-1

       GORDON McCLOUD, J. (dissenting)-In 2002, a trial court judge in

one of our state's most populous counties and busiest courts sentenced

Spencer Miller to a standard range sentence of 400 months-200 months for

each of two serious violent crimes, to run consecutively. Five years later, in

2007, that same jurist-with greater experience and enough humility to

examine his own prior decision-making in this case critically and honestly-

acknowledged that he did not realize that he had the power to have imposed

concurrent 200-month sentences instead. Clerk's Papers (CP) at 268-69. In

fact, he admitted that he did not realize he had that discretion until this court

said so for the first time in 2007, in In re Personal Restraint of Mulholland,

161Wn.2d322, 166 P.3d 677 (2007). CP at 269. 1

       That trial court judge was not the only one who didn't realize that the

legislature gave judges the discretion to impose concurrent sentences in that

       1
         The majority, of course, acknowledges this. Majority at 2 (trial court
"[ c]onclud[ ed] it had failed to recognize its discretion to impose concurrent
sentences under RCW 9.94A.589(l)(b)" and therefore "vacated Miller's sentence
and ordered new sentencing").
                                         1
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


(serious violent crimes) situation. Mr. Miller's trial counsel also did not

know that in 2002, before Mulholland. CP at 268 (trial court concludes that

Miller's attorney might have requested a lower sentence if he had had the

benefit of the Mulholland decision); Verbatim Report of Proceedings (VRP)

(Oct. 7, 2011) at 5-7. The prosecuting attorney also did not know that in

2002, before Mulholland, either. State's Resp. to Pers. Restraint Pet., In re

Personal Restraint of Mulholland, No. 34484-0-II, at 8 (Wash. Ct. App. Apr.

21, 2006) ("[P]etitioner contends that it is legally permissible for the court to

impose concurrent sentences on these [serious violent] offenses by imposing

an exceptional sentence under RCW 9.94A.435(g).           The State disagrees.

While sentencing courts enjoy some discretion in determining the length of

sentences, that discretion does not extend to deciding whether to run

sentences on current offenses concurrently or consecutively. State v. Jacobs,

154 Wn.2d 596, 115 P.3d 281 (2005)."). In fact, as the majority recognizes,

even this court seemed to indicate that trial court judges lacked that

discretion, though we did so only in "dicta." Majority at 4 (summarizing

cases).

       I can't believe that the legislature intended to bar the trial court judge

from correcting his acknowledged misunderstanding of his sentencing


                                         2
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


discretion-a misunderstanding he shared with defense lawyers, prosecutors,

and judges alike-in this unusual situation.        I don't think that our cases

compel such a reading of the applicable statute, RCW 10. 73 .100( 6), either.

                                  ANALYSIS

       I certainly agree with the majority that our task is to interpret a statute,

RCW 10. 73 .100( 6), to determine whether it bars a trial court judge from

correcting what he forthrightly admits was his erroneous assumption that he

lacked important sentencing discretion. And I readily acknowledge that the

majority's decision finds support in statements in some of our cases.

Majority at 3. But that support is not present in all the cases the majority

cites, and in the cases that do provide support for the majority's holding, that

support comes only from dicta.

       For example, the majority cites cases holding that a decision applying

settled case law to new facts does not constitute a significant change in the

law. Id. (citing In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258-59, 111

P.3d 837 (2005); In re Pers. Restraint of Turay, 150 Wn.2d 71, 83, 74 P.3d

 1194 (2003); In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 264, 36

P.3d 1005 (2001)). Those cases certainly say that. But the majority relies on

these holdings to support the very different proposition that a decision (like


                                         3
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


Mulholland) rejecting prior dicta cannot constitute a significant change in

the law. Id.

      Lavery, Turay, and Stoudmire actually remained silent on that latter

issue. The defendant in Stoudmire, for example, filed a personal restraint

petition (PRP) alleging that an exception to the one-year limit on collateral

attacks should apply due to a significant change in the law. 145 Wn.2d at

262. The change purportedly resulted from a 1996 case in which this court

held that mandatory community placement is a direct consequence of a plea.

Id. at 264. This court disagreed and held that that purportedly new holding

merely applied a previously settled rule-that a defendant must be informed

of all direct consequences of a plea-to a new factual setting: mandatory

community placement. Id. We concluded only that that new application of

the old rule did not constitute a significant change in the law. Id. at 265. We

made no holding on how to characterize significant changes to prior dicta

that was generally viewed as reflecting the state of the law.

       Similarly, in Turay, we held that the purportedly new rule that Turay

sought to take advantage of (regarding proof of a "recent overt act") was not

new at all; it "did not alter the holding" of any prior cases and instead

"simply involved application of the [old rule] ... to new fact situations."


                                         4
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon Mccloud, J., dissenting)


150 Wn.2d at 85. Once again, we made no holding on whether a big change

to prior dicta that was generally viewed as binding constituted a "significant

change" in the law. Id. (constitutional principle on which petitioner relied

remained "unchanged"; relevant cases merely applied that rule to different

factual situations).

        And in Lavery, we actually granted the petition. 154 Wn.2d at 261.

Thus, that case certainly made no holding about new interpretations of

earlier, generally accepted dicta failing the "significant change" in the law

test for RCW 10.73.100(6) purposes.

        In sum, neither Stoudmire, Turay, nor Lavery holds that a case must

overturn binding precedent in order to constitute a significant change in the

law.     Thus, they provide no support for the majority's holding that

Mulholland, which overturned prior generally accepted understandings and

dicta concerning a sentencing judge's power, does not constitute a

"significant change" in the law.

       The majority also cites In re Personal Restraint of Domingo, 155 Wn.2d

356, 363-67, 119 P.3d 816 (2005), for the principle that dispelling dicta

cannot constitute a significant change in the law. Majority at 4.       Some

context is necessary to show that Domingo did not say that. In Domingo, the


                                         5
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


question was whether our earlier decisions in Roberts 2 and Cronin 3

constituted a significant change in the scope of accomplice liability. The

petitioners argued that Roberts and Cronin overruled statements in an older

case-State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984)-about the

supposedly broad scope of that liability. This court in Domingo did say that

the old Davis statements to which Domingo cited were dicta. Thus, on the

surface, the majority's decision might look similar to Domingo. Majority at

4-5. But the actual holding in Domingo was very different. Domingo held

that there was an actual holding in Davis that was contrary to its broad-

accomplice-liability dicta, and that that holding about the limits on the scope

of accomplice liability were actually reaffirmed by Roberts and Cronin. 15 5

Wn.2d at 365. In fact, Domingo explicitly stated that the petitioner's reading

was "contradicted by express language in Roberts and Cronin," which

language had expressly followed the prior holdings of Davis and other earlier

cases.        Id. (citing Roberts, 142 Wn.2d at 513).         Thus, Domingo-like

Lavery, Stoudmire, and Turay-made no holding with regard to the legal

effect of rejecting dicta for purposes ofRCW 10.73.100(6).


         2
             State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000).
         3
             State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000).

                                             6
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


      The same is true of Greening, 4 also cited by the majority. Majority at

3. In that case, as in Lavery, this court granted the PRP. Its statement about

when PRPs will not be granted is itself dicta.

      The majority can really rely only on dicta for its holding that

Mulholland, which overturned prior generally accepted understandings and

dicta, does not constitute a "significant change in the law." But if, as the

majority contends, the Jacobs 5 and Charles 6 dicta does not constitute prior

controlling authority for purposes of RCW 10.73.100(6), then the Domingo,

Greening, etc. dicta cannot constitute prior controlling authority for purposes

of interpreting RCW 10.73.100(6), either. Majority at 4.

       Finally, and of great importance, we have cases in which we have said

just the opposite. In Jn re Personal Restraint of Runyan, for example, we

explained that RCW 10. 73 .100( 6) preserved "unlimited" postconviction

review, even outside the usual one-year time limit, for claims that a

sentencing error improperly affected the length of a prisoner's continued




       4
           In re Pers. Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000).

       5   State v. Jacobs, 154 Wn.2d 596, 115 P .2d 281 (2005).

       In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d
       6


798 (1998).
                                          7
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


incarceration. 121 Wn.2d 432, 453, 853 P.2d 424 (1993). As we explained

of Runyan's analysis in a later decision, Greening,

             "In streamlining the postconviction collateral review
      process, RCW 10.73.090 et seq. have preserved unlimited
      access to review in cases where there truly exists a question as
      to the validity of the prisoner's continuing detention." [Runyan,
      121 Wn.2d] at 453 (emphasis added). We added, "Faced with a
      virtually unlimited universe of possible postconviction claims,
      the Legislature wisely chose to exempt those contentions which
      go to the very validity of the prisoner's continued
      incarceration." Id. at 449 (emphasis added). Here, the State
      acknowledges that six years of this prisoner's prescribed
      incarceration period have been unlawfully imposed.

141 Wn.2d at 695-96.

       So our cases do not compel the n1le that the majority adopts. Some of

our cases that the majority cites do not state that rule at all; some of our

cases that the majority cites state that rule in dicta; and at least one of our

cases (Runyan) states a different rule.

       With our cases saying such different things, in such different contexts,

about this statutory interpretation issue, we should take on anew the task of

interpreting the meaning of "significant change in the law" as used in RCW

10.73.100(6)-where, as here, the change involves the trial judge's

acknowledged misunderstanding about whether he had authority to exercise




                                          8
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


discretion at sentencing. As we have explained many times, when we take

on such a task:

       Our primary objective is to determine and to apply the
       legislature's intent. State·v. Donaghe, 172 Wn.2d 253, 261-62,
       256 P.3d 1171 (2011) (quoting State v. Jacobs, 154 Wn.2d 596,
       600, 115 P.3d 281 (2005)). We determine legislative intent
       from the statute's plain language, "considering the text of the
       provision in question, the context of the statute in which the
       provision is found, related provisions, amendments to the
       provision, and the statutory scheme as a whole."

             If, after examining the ordinary meaning of the statute's
       language and its context in the statutory scheme, more than one
       reasonable interpretation exists, we treat the statute as
       ambiguous. Jacobs, 154 Wn.2d at 600-01. In criminal cases,
       we apply the rule of lenity to ambiguous statutes
       and interpret the statute in the defendant's favor."

State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015) (internal

citations omitted (quoting Ass 'n of Wash. Spirits & Wine Distribs. v. Wash.

State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015)).

       RCW 10.73.100 was enacted in 1989, and it permits a petitioner to

file a PRP outside the one-year time limit if it is based on a "significant

change in the law, whether substantive or procedural, which is material to

the conviction [or] sentence ... and ... a court ... determines that sufficient

reasons exist to require retroactive application of the changed legal

standard."    RCW 10.73.100(6).       New judicial interpretations of criminal


                                         9
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


statutes always applied retroactively, both before 7 and after8 RCW 10.73.100

was enacted. And our court has consistently applied that rule-that new

interpretations of old statutes, particularly sentencing statutes, apply back to

the date of original enactment of the statute-in the context presented here,

that is, a claim concerning the length of a sentence in a criminal case raised

on a collateral attack. 9

       The only real question here is whether the legislature intended a

retroactive interpretation of a criminal statute like the one created by

Mulholland to apply to petitioners who miss the one-year PRP deadline, or

       7
         State v. Darden, 99 Wn.2d 675, 679, 663 P.2d 1352 (1983) ("'It is a
fundamental rule of statutory construction that once a statute has been construed
by the highest court of the state, that construction operates as if it were originally
written into it. In other words, there is no 'retroactive' effect of a court's
construction of a statute; rather, once the court has determined the meaning, that is
what the statute has meant since its enactment. '" (quoting Johnson v. Morris, 87
Wn.2d 922, 927-28, 557 P.2d 1299 (1976))); In re Pers. Restraint of Carle, 93
Wn.2d 31, 37, 604 P.2d 1293 (1980).

       8
         In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019
( 1997) (intervening change in statutory interpretation "must be applied
retroactively" because "once the Court has determined the meaning of a statute,
that is what the statute has meant since its enactment" (citing In re Pers. Restraint
of Vandervlugt, 120 Wn.2d 427, 436, 842 P.2d 950 (1992); In re Pers. Restraint of
Moore, 116 Wn.2d 30, 37, 803 P.2d 300 (1991))).

       9 E.g., Greening, 141 Wn.2d 687 (PRP; change in whether firearm
enhancements run consecutively or concurrently), Johnson, 131 Wn.2d 558 (PRP;
change in offender score calculation), Vandervlugt, 120 Wn.2d 427 (PRP; change
in whether "future dangerousness" can be used to support an exceptional
sentence); Carle, 93 Wn.2d at 37 (PRP; change in law regarding deadly weapons
enhancement applicability).
                                          10
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


not. Dictionary definitions of "significant" do not answer that question, the

parties offer no relevant legislative history to answer that question, and the

context of the statute does not provide a clear answer to that question. But

the change in sentencing discretion that Mulholland created certainly seems

big by any definition. After Mulholland, trial court judges could run the

lengthiest sentences for serious violent crimes concurrently, in the

exceptional case in which it was proper; before Mulholland, I find no record

of any trial court judge ever doing that or any appellate court approving that,

and the trial court judge in Mr. Miller's case explicitly acknowledges that he

didn't think he could do that.

       Such a change in the law clarifying for the first time that a statute

gives the sentencing judge discretion in an area in which that judge

previously believed he lacked discretion certainly seems "significant." In

fact, in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), we held that

our interpretation of a preexisting statute clarifying the trial court's duty to

make an inquiry and exercise discretion about whether to impose financial

obligations on an indigent defendant was so significant that we took the

exceptional step of reviewing that issue when raised for the first time on

appeal, and remanded directly to the trial court for resentencing to give it the


                                        11
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


opportunity to exercise that discretion. Mr. Miller seeks the same limited

remedy of resentencing to give the trial court the opportunity to exercise

discretion here. The power to exercise discretion cannot possibly be more

significant where additional financial obligations are involved than where, as

here, additional imprisonment of almost 17 years is involved.

       If, after considering this summary of cases, there is still any doubt

about whether the legislature meant to include decisions like Mulholland

within its definition of "significant change" in the law, then there is one

more step that we should take. I certainly acknowledge that the majority

accurately summarizes statements in some of our cases to the contrary.

Majority at 3-5. Given those statements, given the fact that we have been

presented with no relevant legislative history on the point at issue here, and

given the uselessness of dictionary definitions to figure out whether

"significant" changes include clarifications that alter prior accepted

understandings or only outright reversals, any remaining uncertainty about

the meaning of "significant" in RCW 10.73.100(6) renders it ambiguous.

Such an ambiguity must be interpreted in favor of the criminal defendant.

Conover, 183 Wn.2d at 711. In fact, in Greening, our court applied the rule

of lenity to interpret exactly the same statutory provision at issue here:


                                        12
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


RCW 10.73.100(6). 141 Wn.2d at 698 ("even were we to find the State's

alternative construction reasonable, the rule of lenity would require

resolving the alleged ambiguity in the petitioner's favor").   That means

interpreting a "significant change in the law" to include .Mulholland's

important new holding interpreting the Sentencing Reform Act of 1981 to

grant trial courts discretion to impose concurrent sentences for serious

violent offenses in the rare and exceptional case in which the trial judge

believes it is warranted. Ch. 9.94A RCW.

                                CONCLUSION

       A fair summary of our cases on the interpretation of "significant

change in the law" in RCW 10. 73 .100( 6) shows that they say different

things-and none of them has previously adopted the majority's approach as

a holding. Most accepted rules of statutory interpretation do not lead to a

clear answer but could leave it susceptible to either the majority's

interpretation or my interpretation. Any such ambiguity must be resolved

under the rule of lenity, and it favors the defendant's interpretation: the

experienced and honest trial judge, who acknowledged that in 2002 he had

the same misimpression about his lack of discretion at sentencing that other




                                        13
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)


lawyers and judges in the state shared, should be given a chance to correct

his error.

       The most persuasive reason to adopt this view is based on common

sense. 10 The majority's approach rewards petitioners who are lucky enough

to get the smartest or most creative postconviction lawyers. It rewards the

petitioner like Mr. Mulholland, who arrived first at the courthouse with his

creative and intelligent argument, filed a PRP, and obtained a ruling

allowing serious violent offenses to run concurrently as an "exceptional

sentence" in his own case. But it punishes every other petitioner who was

sentenced before him, who did not think of that argument sooner.

       That approach stands at odds with the legitimate goals of the criminal

justice system: punishment, rehabilitation, and deterrence. I can't believe

that's what the legislature intended.




        See State v. Alvarado, 164 Wn.2d 556, 562, 192 P.2d 345 (2008)
       10


(court will not interpret statute to lead to absurd results).
                                        14
State v. Miller (Spencer Leroy), No. 91065-1
(Gordon McCloud, J., dissenting)




                                        15
