                                                                                                        FILED
                                                                                               COLIPT OF APPEALS
                                                                                                      DIVISION 11
                                                                                              2giliMiY 13    11   9: 13
                                                                                                 TE                 TON




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II


STATE OF WASHINGTON,                                                       No. 42899 -7 -II


                                  Appellant,                            PUBLISHED OPINION


          v.



SPENCER MILLER,


                                  Respondent.


          BJORGEN, J. —   The State appeals from the superior court' s order vacating Spencer

Miller' s sentence and requiring a new sentencing hearing under CrR 7. 8. Because the superior

court did not err in determining that a significant intervening change in the law, material to

Miller' s sentence, established a fundamental defect in the original sentencing proceeding, we

affirm.



                                                 FACTS


          In October 2010, Miller, a Washington State Department of Corrections inmate, filed a

motion pro se to vacate his judgment and sentence under CrR 7. 8. A jury had found Miller,

along with two codefendants, guilty of two counts of attempted first degree murder based on
charges    stemming from   a   2001 shooting. The trial   court   had   sentenced
No. 42899 -7 -II



Miller near the bottom of the standard range, imposing two consecutive 200 -month terms of

incarceration. In his motion, Miller argued that the superior court should hold a new sentencing

hearing because the original sentencing court had failed to recognize, based on a

misunderstanding of the law, that it had discretion to impose concurrent sentences as an

exceptional downward departure, thus depriving Miller of the opportunity to argue for such an

exceptional sentence. Miller pointed out that our Supreme Court had subsequently held in In re

Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P. 3d 677 ( 2007), that sentencing courts


have discretion to impose concurrent sentences for multiple serious violent felonies, despite the


mandatory    consecutive   sentencing   provision of   RCW 9. 94A.589( 1)( b).   After obtaining counsel,

Miller filed a motion to modify or correct the judgment and sentence based on substantially the

same grounds.




         After holding hearings on Miller' s motion, the superior court concluded that ( 1) the one -

year time bar of RCW 10. 73. 090 did not apply to Miller' s collateral attack because the motion

was   based entirely   on a significant change   in the law; ( 2) Miller had made a substantial showing


that he was entitled to relief; (3) the sentencing court hadfailed to realize it could run Miller' s

sentences   concurrently;'   and ( 4) despite the fact that Miller had not, in fact, requested a mitigated


sentence, the sentencing court' s failure to recognize its discretion constituted a fundamental

defect inherently resulting in a miscarriage ofjustice. The court therefore vacated the sentence




1
    The judicial officer who conducted all the hearings related to Miller' s CrR 7. 8 motion, Pierce
County Superior Court Judge Cuthbertson, also presided over Miller' s trial and pronounced the
sentence at issue here.

                                                       2
No. 42899 -7 -II



and ordered a new sentencing hearing. Prior to Miller' s resentencing, the State timely appealed.

                                                 ANALYSIS


         The State' s six assignments of error may be condensed to two essential issues: whether

the superior court erred in determining that ( 1) the relevant holding in Mulholland constitutes a

significant change in the law, material to Miller' s sentence; and ( 2) the original sentencing court

failed to recognize its discretion to impose concurrent terms of confinement, inherently resulting

in a miscarriage of justice.


          If the holding in Mulholland does not represent a significant change in the law, the rest of

the   superior court' s   findings   and conclusions were   necessarily   erroneous.   We thus first address


whether the relevant holding in Mulholland constituted a significant change in the law.

Concluding that it did, we then consider whether Miller' s failure to request a mitigated sentence

at the time of sentencing precludes relief, an issue raised through the assignments of error.

Holding that relief is not precluded, we consider whether the superior court properly found that

the sentencing court had failed to recognize its discretion to impose concurrent terms, and if so,

whether such failure amounts to a fundamental defect entitling Miller to a new sentencing
                                                                         -

hearing. Concluding that superior court did not err, we affirm its decision vacating Miller' s

sentence and requiring a new sentencing hearing.

                                            I. STANDARD OF REVIEW


          Our Supreme Court succinctly articulated the applicable standard of review in a recent

case:




          A trial court' s order on a motion to withdraw a guilty plea or vacate a judgment is
          reviewed for abuse of discretion. A trial court abuses its discretion if its decision
          is manifestly unreasonable or based upon untenable grounds or reasons. A court' s
          decision is based on untenable reasons if it is based on an incorrect standard or the

                                                       3
No. 42899 -7 -II



             facts do     not meet       the   requirements of       the correct   standard.     A court' s decision is
             manifestly unreasonable if it is outside the range of acceptable choices, given the
             facts and the applicable legal standard. The untenable grounds basis applies if the
             factual findings are unsupported by the record.

State   v.   Lamb, 175 Wn.2d 121, 127, 285 P. 3d 27 ( 2012) ( internal citations and quotation marks


omitted).       When we consider whether a trial court properly applied the correct legal standard,

 we review          de    novo   the   choice of   law   and   its   application   to the facts in the    case."   State v.


Corona, 164 Wn.                        76, 79, 261 P. 3d 680 ( 2011);                  Barton         Dep' t of Transp.,   178
                            App.                                            accord,              v.




Wn.2d 193, 201 - 02, 308 P. 3d 597 ( 2013).                    Thus, we limit our review of challenged factual

findings to whether substantial evidence in the record supports them, but consider de novo

whether the challenged conclusions of law properly follow from the supported facts.

                           II. MULHOLLAND WORKED A SIGNIFICANT CHANGE IN THE LAW


             Trial courts have discretion under CrR 7. 8( b) to " relieve a party from a final judgment,

order, or      proceeding" for           various enumerated reasons, as well as            the   catchall "[   a] ny other reason


justifying      relief."     The rule provides, however, that


              t]he court shall transfer a motion filed by a defendant to the Court of Appeals for
             consideration as a personal restraint petition unless the court determines that the
             motion is not barred by [ the one -year limit provided in] RCW 10. 73. 090 and
             either ( i) the defendant has made a substantial showing that he or she is entitled to
             relief or ( ii) resolution of the motion will require a factual hearing.

CrR 7. 8(     c)(   2).   Miller filed his motion more than one year after his judgment and sentence


became final. Thus, the trial court could consider the motion on its merits only if it properly

determined that the statutory time bar on collateral attacks did not apply. The rule also required

the superior court to properly determine that either Miller had made a substantial showing that

his claim had merit or that proper resolution required a factual hearing.




                                                                        4
No. 42899 -7 -II



         The trial court concluded that Miller' s collateral attack was not time barred based on a


statutory exception, which provides that the time limitation of RCW 10. 73. 090

         does   not    apply to   a petition or motion       that is based solely         on ...   a significant

         change in the law, whether substantive or procedural, which is material to the
                                      and either the legislature has expressly provided that
         conviction [ or] sentence, ...


         the change in the law is to be applied retroactively, or a court, in interpreting a
         change in the law that lacks express legislative intent regarding retroactive
         application,      determines    that    sufficient      reasons     exist   to   require    retroactive
         application of the changed legal standard.


RCW 10. 73. 100( 6).       Thus, we must first decide whether the holding in Mulholland on which

Miller relies qualifies as a " significant change in the law" under RCW 10. 73. 100( 6).

         The State points out that courts have interpreted " significant change in the law" in RCW

10. 73. 100( 6) "   as a change that effectively overturns prior material law so that the arguments

currently at issue were previously unavailable to the litigants" and argues, without elaboration,

that " Mulholland did not constitute a significant change in the law where it did not reverse

established precedent."         Br. of Appellant 24 ( citing In re Pers. Restraint ofDomingo, 155 Wn.2d

356, 119 P. 3d 816 ( 2005)).       Miller asserts first that the State has failed to present argument in

support of   its    position, as required-by    RAP 10. 3(    a)(   6), and therefore invites this court to refuse to


consider the State' s assignment of error on the issue. Miller further argues that the superior court

did not err in determining that Mulholland effected a significant change, pointing to State v.

Flett, 98 Wn.       App. 799,   806, 992 P. 2d 1028 ( 2000),         an opinion of this court contrary to the

relevant holding of the Mulholland court.

         Turning to Miller' s initial argument, we acknowledge that the State' s brief in this appeal




                                                             5
No. 42899 -7 -II



contains a large amount of irrelevant material,2 while its entire argument on the key issue in this

case, whether Mulholland worked a significant change in the law, amounts to two short

paragraphs. Nonetheless, we conclude that the State has presented sufficient argument and


citation to authority to merit review.

           On the merits of the issue, the State' s sole contention is that an appellate decision only

qualifies as a significant change in the law if it reverses prior precedent. The authorities cited,

however, do not establish this proposition.


           The State' s argument relies on the following language from Domingo:

            I] t is   untenable    to    claim     that [ State      v.   Roberts, 142 Wn.2d 471,            14 P. 3d 713
            2000)]     and [   State    v.   Cronin, 142 Wn.2d 568, 14 P. 3d 752 ( 2000)] " effectively
           overturned a prior appellate decision that was originally determinative of a
           material issue" as required by [ In re Pers. Restraint of Greening, 141 Wn.2d 687,
           697, 9 P. 3d 206 ( 2000)];             see also In re Pers. Restraint of Turay, 150 Wn.2d 71,
           83, 74 P. 3d 1194 ( 2003) (             stating that an appellate decision that merely settles a
           point of law without overturning precedent, or applies settled law to new facts,
           does not constitute a significant change in the law).

155 Wn.2d        at   368 ( quoting     Greening,      141 Wn.2d              at   697).   The portion of Greening cited by the

Domingo       court,    however, merely           states   that "[   w] e hold that where an intervening opinion has

effectively overturned a prior appellate decision that was originally determinative of a material

issue, the intervening opinion constitutes a ` significant change in the law' for purposes of

exemption       from    procedural       bars."    Greening, 141 Wn.2d at 697. The Turay court described

2
    For   example: (     1) although Miller never raised a claim of ineffective assistance of counsel, and
the trial court in no way relied on ineffective assistance, 13 pages of the brief are devoted to
arguing that Miller received effective assistance and that this court wrongly decided In re
Personal Restraint of Crace, 157 Wn. App. 81, 236 P. 3d 914 ( 2010), the relevant part of which
our Supreme Court has already approved, 174 Wn.2d 835, 844 -   45, 280 P. 3d 1102 ( 2012); and
    2) although the superior court did not conclude that Miller' s judgment and sentence was facially
invalid, more than 6 pages of the brief are devoted to a boilerplate discussion of our Supreme
Court' s facial invalidity jurisprudence.

                                                                          6
No. 42899 -7 -II



Greening' s holding      on    this   point as "[   o] ne way in which a significant change in the law occurs,"

noting that "[    a] n appellate decision that settles a point of law without overturning prior precedent

is   not such a case."   150 Wn.2d at 83.


          Neither Turay nor Domingo, however, purport to overrule prior decisions, discussed

below, in which our Supreme Court held that an appellate decision worked a significant change


in the law even though it did not reverse established precedent. Giving consistent effect to these

decisions requires the conclusion that reversing established precedent is sufficient, but not

necessary, to effect a significant change in the law. Other routes to a significant change remain

viable.




          In In re Personal Restraint of Vandervlugt, 120 Wn.2d 427, 433 -34, 842 P. 2d 950 ( 1992),

our Supreme Court found a significant change in the law as to whether future dangerousness


properly supports an exceptional sentence, based on two intervening cases, State v. Pryor, 115

Wn.2d 445, 799 P. 2d 244 ( 1990) and State v. Barnes, 117 Wn.2d 701, 818 P. 2d 1088 ( 1991).


While the Barnes court may have overruled prior decisions sub silentio, see Barnes, 117 Wn.2d

at 716 -17 ( Dolliver, J., dissenting), the Pryor court, after acknowledging that no Washington —

Supreme Court opinion had yet addressed the question, explicitly agreed with this court' s
holdings on the question. Pryor, 115 Wn.2d at 451 -54. Thus, the reversal of precedent was not


a necessary element of a significant change.


          Likewise, in In re Personal Restraint of Cook, 114 Wn.2d 802, 808 -13, 792 P. 2d 506

 1990),    our Supreme Court accepted an argument that the identically- worded provision in RAP

16. 4( c)( 4) would permit review of Cook' s petition despite the RCW 10. 73. 090 time bar based in

part on    the   intervening   decision in State       v.   Caliguri, 99 Wn.2d 501, 664 P. 2d 466 ( 1983).   The




                                                                 7
No. 42899 -7 -II



Caliguri court had interpreted RCW 10. 43. 040, a statute in effect since 1909, to bar dual state

and federal prosecutions for the same crime. 99 Wn.2d at 512. The Caliguri court addressed the

                                                                                                                   3
matter as a question of       first impression in this   state and   did   not overrule   any   prior precedent.       99


Wn.2d at 511 -12. Nonetheless, Cook accepted the argument that Caliguri worked a significant

change in the law.


         Cook' s treatment of Caliguri appears closely analogous to the situation here, where the

Mulholland court expressly interpreted as an issue of first impression a statute in effect since

well   before Miller'   s   sentencing.   161 Wn.2d at 328. As it argues here that Mulholland did not

work a significant change in the law, the State argued in Cook that Caliguri did not constitute a

significant change in the law, which argument the Cook court rejected without comment. Cook,

114 Wn.2d     at   807 -14.    Thus, the State' s argument that Mulholland did not qualify as a

significant change because it did not explicitly reverse established precedent rests on a false

premise.




         If reversal of an established precedent is not necessary to work a significant change in the

law, the question remains what is necessary. Our Supreme Court has stated that it will consider

whether an argument was " available" to a litigant in deciding whether there has been a

significant change in the law. See Domingo, 155 Wn.2d at 366; Greening, 141 Wn.2d at 697.

An argument is not available, though, merely because it conceivably could be made. The

Greening court rejected the view that arguments contrary to published precedent are " available"

simply because established precedent has been reversed in the past. 141 Wn.2d at 697 n.9. The

3 We are aware of no Washington cases interpreting RCW 10. 43. 040 prior to Caliguri. The
Caliguri court discussed only cases decided by the appellate courts of other states in its analysis
of the relevant point, all of which had also interpreted similarly worded state statutes to bar dual
federal and state prosecutions. 99 Wn.2d at 512.

                                                           8
No. 42899 -7 -II



inquiry, thus, ends where common sense would take it: in the examination of how clear and

unequivocal the law was before Mulholland that consecutive sentences were mandatory in these

circumstances.




        In this inquiry we keep in mind that where courts and practitioners have uniformly

worked under the assumption that a certain principle is the law, no occasion may have arisen for

an appellate court to repudiate that principle for a long span of time. Dicta from our Supreme

Court, furthermore, may constrain the conduct of trial courts as surely as does a holding of this

court or a statute. When a case does arise that squarely presents the issue, as occurred in Pryor

and Caliguri, an appellate court' s repudiation of such a long- accepted principle could still

amount to a significant change in the law. See Vandervlugt, 120 Wn.2d at 433 -34; Cook, 114

Wn.2d   at   808 -13. As the dicta from our Supreme Court discussed below demonstrate, the notion


that sentences for multiple serious violent felonies must run consecutively is just such a long -

accepted principle. The Mulholland court' s reliance on the plain language of the statute in

rejecting this principle, 161 Wn. 2d at 330, subtracts nothing from the consistent and categorical

message of the case law before Mulholland that these sentences must run consecutively:

        On more than one occasion prior to Mulholland, our Supreme Court had stated that


sentencing courts lacked discretion to impose concurrent sentences for multiple serious violent

offenses.    In State   v.   Jacobs, 154 Wn.2d 596, 602 -03, 115 P. 3d 281 ( 2005) ( footnote omitted),


the court stated:


                  Although        sentencing    courts    generally enjoy discretion in tailoring
        sentences, for the most part that discretion does not extend to deciding whether to
        apply    sentences      concurrently   or   consecutively.   Where a person is sentenced for
        two or more current offenses, the legislature has specified that if those offenses
        stem from the same criminal conduct, the sentences shall be served concurrently;
        consecutive sentences can be imposed only as an exceptional sentence under

                                                           9
No. 42899 -7 -II



         RCW 9. 94A. 535.           RCW 9. 94A.589( 1)(          a).       In contrast, sentences for " two or more
         serious violent offenses arising from separate and distinct criminal conduct" must
         be   applied         consecutively to       each      other.         RCW 9. 94A. 589( 1)( b).       In RCW
          9. 94A.589 the legislature also specified that courts must impose consecutive
          sentences      for   certain   firearm   related offenses.           RCW 9. 94A. 589( 1)(    c).




Additionally, in In re Post -
                            Sentencing Review of Charles, a case decided before Miller' s trial,

our    Supreme     Court similarly       stated   that "[   t]he exception to the rule that current offenses are to be


served concurrently occurs when the person has committed two or more ` serious violent

offenses,'    in   which case sentences are consecutive,"                    specifying that " unless the court imposes an

exceptional sentence, or there are two or more statutorily -defined serious violent offenses, the

sentences run       concurrently."        135 Wn.2d 239, 245               n. 2,   254, 955 P. 2d 798 ( 1998) ( footnote


omitted).



          Although dicta, the passages cited show that the Jacobs and Charles courts believed that


discretion to run prison terms concurrently as a downward departure did not extend to sentences

for multiple serious violent offenses. This is undoubtedly a plausible reading of the statute. As

the State pointed out in Mulholland, the statute' s same- criminal -conduct provision, RCW


9. 94A.589( i)(a), explicitly refers to RCW 9. 94A.535, the exceptional sentence provision-,- hile
                                                                                            w

the multiple- serious -violent -
                               offense and firearm -
                                                   offense provisions, RCW 9. 94A.589( 1)( b) and

 c),   do not. Mulholland, 161 Wn.2d at 329 -30.


          In Mulholland, furthermore, the State had urged the Supreme Court to follow this court' s

decision in State        v.   Flett, 98 Wn.   App.    799, 806, 992 P. 2d 1028 ( 2000), an opinion also filed


prior   to Miller'   s   sentencing,     which stated       that "[   c] onsecutive sentencing is mandatory" for

multiple serious violent offenses. Mulholland, 161 Wn.2d at 330. The Flett court held that a

sentencing court had erred in imposing concurrent terms of confinement for multiple firearm


                                                                      10
No. 42899 -7 -II



enhancements as a mitigated exceptional sentence when the underlying crimes were serious

violent offenses.       98 Wn. App.       at   808. The court analyzed the issue as follows:


                  Under [ In re Post -
                                     Sentencing Review of Charles, 135 Wn.2d 239, 955
        P. 2d 798 ( 1998)],           the court addressed an ambiguity in sentencing when multiple
        concurrent        sentences      with   sentencing   enhancements    were    involved.   Here, the
        trial court ordered four consecutive sentences for the first degree assaults because
        they    are    serious violent offenses required          to be consecutively    sentenced.   RCW
        9. 94A. 030( 31)(       a);   RCW 9. 94A.400( 1)( b).     A sentencing enhancement is added to
        the base sentence to reach a single presumptive sentence for a particular offense;
        it is   not   itself   a separate sentence.    Charles, 135 Wn. 2d    at   253 -54.
                                                                          The ambiguity
        in Charles does not arise here. Consecutive sentencing is mandatory.

Flett, 98 Wn.     App.    at   806 (   emphasis omitted).    Thus, this court also plainly believed that trial

courts lacked discretion to impose concurrent terms of confinement for multiple serious violent

felonies. In contrast, the State has not directed our attention to any case, and we know of none,

in which a sentencing court imposed concurrent terms for multiple serious violent felonies prior

to Mulholland.


        In light of Vandervlugt, 120 Wn.2d at 433 -34, Jacobs, 154 Wn.2d at 602 -03, Flett, 98


Wn. App. at 806, and Cook, 114 Wn.2d at 808 -13, Mulholland marks a significant change in the

law, allowing defendants convicted of multiple serious violent offenses to argue for concurrent

terms of confinement as an exceptional sentence. The State has failed to meet its burden of


establishing that the trial court committed reversible error when it determined that Mulholland

announced such a change.



                          III. MULHOLLAND WAS MATERIAL TO MILLER' S SENTENCE


        The State argues that Mulholland was not material to Miller' s sentence because ( 1) the


superior court' s finding that the original sentencing court misunderstood its discretion is

incorrect; ( 2)   even if the sentencing court did misunderstand, it would have imposed the same


                                                             11
No. 42899 -7 -II



sentence anyway had it recognized the extent of its discretion; and (3) Miller waived the issue by

not requesting an exceptional downward departure. The State' s argument fails for a number of

reasons.     Substantial evidence in the record supports the challenged finding and suggests that the

sentencing court would have considered imposing a concurrent sentence, had it known it could,
even though Miller did not argue for such a sentence at the hearing.

A.         The Sentencing Court Misunderstood the Extent of Its Discretion

           Whether the sentencing court believed it had discretion to impose a concurrent sentence

presents a question of fact. As discussed above, we will not overturn a trial court' s factual

finding under the abuse -of-discretion standard unless it is unsupported by substantial evidence in

the record. Lamb, 175 Wn.2d at 127; State v. Rosas- Miranda, 176 Wn. App. 773, 779, 309 P. 3d

728 ( 2013).


           Here, the State points out that, when the sentencing court imposed a mitigated

exceptional sentence on one of Miller' s codefendants, Tonya Wilson, the State asked whether the


terms would run concurrently or consecutively, and the court specified that they were to run

consecutively. -The State argues that this interaction suggests that the court knew it could impose

concurrent terms as an exceptional sentence. While the State' s reading is plausible, the

interaction is also consistent with the trial court' s finding that the sentencing court believed it

had   no   discretion to impose   concurrent   terms:    even though the court imposed a mitigated


exceptional sentence, it ordered the terms to run consecutively.

           Other remarks by the sentencing court also support the challenged finding. For example,

while   discussing   Wilson' s   sentence,   the court stated, " You put count one and two together and



they   run   consecutively,   as you   know, and that'   s about   35   years.... [   A] nd the [ RCW 9. 94A.589]



                                                          12
No. 42899 -7 -II



stacking    provision puts   her   at   35   years   in   prison even at   the   midrange."   Clerk' s Papers ( CP) at


237 -38.     Similarly, in sentencing Robert Bonds, the third codefendant, the court stated,

                     I' m going to sentence you to the middle of the range on count one, and
           that' s actually 350 months, and on count two in the middle for the range at 210
           months.     The weapons enhancements are 60 months for each of those counts, and
           all of those necessarily run consecutively.

CP   at   211 (   emphasis added).      These statements confirm that the sentencing court believed it had

no discretion to run the terms concurrently.

           Further support for the finding appears on Miller' s judgment and sentence. Most of the

preprinted language regarding consecutive versus concurrent terms is crossed out and replaced

by a handwritten notation that the terms would be served " consecutively pursuant to RCW
9. 94A. 589( b)."     CP at 36.


           Finally, as noted above, the judge who presided over Miller' s trial and imposed the

sentence at issue here is the same judge who presided over the hearing on Miller' s CrR 7. 8

motion and entered the challenged finding. Although some years had passed, after reviewing the

transcript of the sentencing proceeding, the judge would likely have remembered what he

believed about the extent of the court' s discretion at the time. We hold that the superior court


did not err in finding that the original sentencing court misunderstood its discretion.

B.         The Sentencing Court Might Have Imposed a Concurrent Sentence

           Even where the defendant did not request a mitigated exceptional sentence, if the

sentencing court fails to recognize its discretion to impose such a sentence, resentencing is an

appropriate remedy except " when the reviewing court is confident that the trial court would

impose the same sentence" after properly exercising its discretion. State v. McGill, 112 Wn.

App.      95, 100, 47 P. 3d 173 ( 2002).       If " [ sentencing] court' s comments indicate it would have
                                                   the

                                                                13
No. 42899 -7 -II



considered an exceptional sentence             had it known it     could,"   resentencing is appropriate. McGill,

112 Wn. App. at 100 -01.

         The State suggests that the fact that Miller did not receive the minimum standard -
                                                                                           range


sentence itself establishes that concurrent sentences lay outside the realm of possibility.

According to the court' s offender score calculation, the bottom of the range for both counts

combined was 391. 5 months. Thus, the 400 -month sentence imposed was only about two

percent higher than the minimum term the court believed it could pronounce.4 A sentence this

close to the bottom of the range does not show that the court' s mind was closed to running the

terms concurrently.

         On the contrary, the sentencing court' s remarks when it addressed Miller suggest it was

reluctant to impose such a long term, but felt constrained by the perceived mandate of the

Sentencing Reform Act of 1981, chapter 9. 94A RCW:

         I believe you when you say that you are a changed man, and in fact, I think
         Detective Ringer testified to that at trial and indicated that during this
         incident.... I believe you when you say you get to a point where you understand
         that running around doing stupid stuff is stupid, and it doesn' t help you or your
         family      or other    folks that   you' re responsible    for. I get the sense you understand
         that   or   have -   or are beginning to understand that when this happened.

                     It is unfortunate that you were out there that night... .

         400    months       in my    calculation comes out    to   a   long   time, Mr. Miller.   It' s like 30
         years,      33   years....    So maybe you' ll take some time to think and get some good
         time    and maybe other         things   will   happen.    I don' t know, but that' s the sentence
         based on the information I have before me.

CP 259 -61.




4
    The State had sought to have the superior court impose firearm enhancements on each count,
but the jury found by special verdict form that Miller had not been armed with a firearm.
                                                             14
No. 42899 -7 -II



         While these remarks are perhaps not as clear as the Mulholland court' s remarks, the facts


of Miller' s case closely resemble those in Mulholland itself. Like Miller, Mulholland did not

argue   for   an exceptional mitigated sentence at       his sentencing   hearing. 5 Mulholland, 161 Wn.2d

at 326. Nonetheless, the sentencing court " made statements on the record which indicated some

openness toward an exceptional sentence, expressing sympathy toward Mulholland because of

his former military       service."   Mulholland, 161 Wn.2d at 333.


         Our Supreme Court held that,        although "[   t] he record does not show that it was a certainty

that the trial court would have imposed a mitigated exceptional sentence if it had been aware that

such a sentence was an option,"         the sentencing court' s remarks were " sufficient to conclude that

a different sentence might have been imposed had the trial court" recognized the extent of its

discretion. Mulholland, 161 Wn.2d at 334. The Mulholland court followed this court' s holding

in McGill that "[    w]here the appellate court `cannot say that the sentencing court would have

imposed the same sentence had it known an exceptional sentence was an option,' remand is

proper."      Mulholland, 161 Wn.2d       at• 334   ( quoting McGill, 112 Wn.   App.   at   100 - 101).   Similarly,

this court in McGill had remanded for resentencing based on the sentencing court' s sympathetic

remarks    to the defendant "[    e] ven though McGill' s counsel had not asked for an exceptional

sentence      below the   standard range."   112 Wn. App. at 98, 102. As in McGill and Mulholland,



5 Mulholland did argue that the terms should run concurrently as a standard -range sentence under
RCW 9. 94A.589( 1)( a), because the six assault charges all stemmed from the same criminal
conduct. Mulholland, 161 Wn.2d at 326. Mulholland had fired several shots into a room where
six people were   dining. Mulholland, 161 Wn.2d at 325. Because each charge involved a
different victim, the sentencing court rejected that argument, and we affirmed in an unpublished
opinion. Mulholland, 161 Wn.2d at 326 ( citing State v. Mulholland, noted at 121 Wn. App.
1081, 2004 WL 1303160 ( 2004)). We subsequently granted Mulholland' s timely personal
restraint petition, however, for the same reasons articulated by our Supreme Court. See
Mulholland, 161 Wn.2d at 326 -27.

                                                          15
No. 42899 -7 -II



the sentencing court' s sympathetic remarks to Miller suggest that it was open to considering a

concurrent sentence had it known that option lay within the reach of its discretion.6 We cannot
conclude that the sentencing court would have nevertheless imposed consecutive sentences had it

known the scope of its discretion.


C.           Miller did not waive his challenge by failing to request an exceptional mitigated sentence

             As just noted, neither the defendant in McGill nor in Mulholland requested an exceptional


downward departure at sentencing. Consequently, Miller' s failure to do so does not forfeit his

challenge. The superior court did not err in concluding that the relevant holding in Mulholland

was material to Miller' s sentence.


    IV. THE SENTENCING COURT' S BELIEF THAT IT COULD NOT IMPOSE CONCURRENT SENTENCES
         AMOUNTED TO A FUNDAMENTAL DEFECT RESULTING IN A MISCARRIAGE OF JUSTICE

             In order " to receive collateral review . f a conviction on nonconstitutional grounds, a
                                                     o


petitioner must establish that the claimed error constitutes a fundamental defect which inherently

results      in   a complete miscarriage of justice."         Cook, 114 Wn.2d at 812. The superior court


concluded that the sentencing court' s misunderstanding of the extent of its discretion amounted

to such a fundamental defect.


             Although the State assigned error to this conclusion, its brief presents no argument and

cites   to   no    authority in   support of   the   claim.   Under RAP 10. 3(   a)(   6), we consider an assignment


of error waived where the party presents no argument and cites to no relevant legal authority on

6
    To the extent that this presents a factual question, the evidence in the record is at least sufficient
to support the finding, implicit in the court' s ruling below, that the original sentencing court
might have imposed such a mitigated sentence had it known that it could.

7 The discussion in Parts II and III of this analysis also shows that under Mulholland and the
other cited authority, sufficient reasons exist to require retroactive application of the changed
legal   standard, one of      the   criteria of   RCW 10. 73. 100( 6),   set out above.

                                                                16
No. 42899 -7 -II



the   issue in its brief. State     v.   Harris, 164 Wn.   App.   377, 389   n. 7,   263 P. 3d 1276 ( 2011) ( citing


Smith    v.   King,   106 Wn.2d 443, 451 -52, 722 P. 2d 796 ( 1986)).          Thus, we do not consider the

         8
claim.



                                                   CONCLUSION


             We hold that Mulholland constituted a significant change in the law, material to Miller' s


sentence, and that the superior court did not err in finding that the original sentencing court failed •

to recognize its discretion to impose concurrent terms of confinement. Because the record


indicates that the original sentencing court might have imposed concurrent terms as a mitigated

exceptional sentence had it realized that it could, the superior court' s findings properly support

its conclusion that Miller was entitled to a new sentencing hearing due to a fundamental defect

inherently resulting in a miscarriage ofjustice.

             Affirmed.




We concur:




8
 We note, however, that Mulholland itself would appear to foreclose the State' s assignment of
error in this regard: the Mulholland court held that " the trial court' s failure to recognize that it
had the discretion to impose a mitigated exceptional sentence" amounted to " a fundamental
defect"       and   affirmed this   court' s grant of   Mulholland'   s petition.    161 Wn.2d at 332 -33.
                                                             17
