State v. Miller

• Decision Date: 11 February 2016
• Docket Number: No. 91065–1.,91065–1.
• Citation: 185 Wash.2d 111,371 P.3d 528
• Parties: STATE of Washington, Petitioner, v. Spencer Leroy MILLER, Respondent.
• Court: Washington Supreme Court

185 Wash.2d 111

371 P.3d 528

STATE of Washington, Petitioner

v.Spencer Leroy MILLER, Respondent.

No. 91065–1.

Supreme Court of Washington, En Banc.

Argued Oct. 9, 2015.

Decided Feb. 11, 2016.

Stephen D. Trinen, Kathleen Proctor, Pierce County Prosecuting Attorney, Pierce County Prosecutors Office, Tacoma, WA, for Petitioner.

Christopher Gibson, Attorney at Law, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

STEPHENS

, J.

¶ 1 A jury 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 Wash.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

¶ 2 Following Miller's 2002 conviction on two counts of attempted first degree murder, the trial court imposed consecutive 200–month sentences, relying on RCW 9.94A.589(1)(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 Wash.App. 1074, 2004 WL 1835092 (2004), issuing its mandate in 2005.

¶ 3 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(1)'s one-year time bar because Mulholland —which interpreted RCW 9.94A.589(1)(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 under RCW 9.94A.589(1)(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 Wash.App. 201, 324 P.3d 791 (2014). We granted the State's motion for discretionary review. 182 Wash.2d 1028, 347 P.3d 459 (2015).

ANALYSIS

¶ 4 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 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 Wash.2d 614, 625, 316 P.3d 1020 (2014).

¶ 5 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.

¶ 6 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. Restraint of Yung–Cheng Tsai, 183 Wash.2d 91, 104, 351 P.3d 138 (2015) (citing In re Pers. Restraint of Greening, 141 Wash.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 Wash.2d 71, 83, 74 P.3d 1194 (2003)

; accord

In re Pers. Restraint of Domingo, 155 Wash.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 Wash.2d 249, 258–59, 111 P.3d 837 (2005) (second alteration in original) (quoting In re Pers. Restraint of Stoudmire, 145 Wash.2d 258, 264, 36 P.3d 1005 (2001) ).

¶ 7 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 Wash.2d at 329–31, 166 P.3d 677. 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, 166 P.3d 677.

¶ 8 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 Wash.2d 596, 115 P.3d 281 (2005)

and In re Post Sentencing Review of Charles, 135 Wash.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.

¶ 9 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 Wash.2d at 104, 351 P.3d 138

. 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 Wash.2d at 328, 166 P.3d 677 (noting whether RCW 9.94A.589(1)(b) allows for concurrent sentences “is a question we have not directly addressed”). Miller 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 Wash.2d at 363–67, 119 P.3d 816 (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”).

¶ 10 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.

¶ 11 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

¶ 12 We reverse the Court of Appeals and vacate the trial court order for resentencing.

WE CONCUR: MADSEN

, C.J., JOHNSON, OWENS, FAIRHURST, WIGGINS, GONZÁLEZ, and YU, JJ.

GORDON McCLOUD, J. (dissenting).

¶ 13 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, 161 Wash.2d 322, 166 P.3d 677 (2007)

. CP at 269.¹

¶ 14 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 (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 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.535(1)(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 Wash.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 530 (summarizing cases).

¶ 15 I can't believe that the legislature intended to bar the trial court judge from correcting his acknowledged misunderstanding of his sentencing 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...