State v. Miller , 185 Wash. 2d 111 ( 2016 )

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 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

¶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 Wn. App. 1074 (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(l)’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 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

¶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 Wn.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 Wn.2d 91, 104, 351 P.3d 138 (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, 111 P.3d 837 (2005) (alteration in original) (quoting In re Pers. Restraint of Stoudmire, 145 Wn.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 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.

¶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 Wn.2d 596, 115 P.2d 281 (2005) and In 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.

¶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 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(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 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”).

¶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.

Madsen, C.J., and Johnson, Owens, Fairhurst, Wiggins, González, and Yu, JJ., concur.

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.