BJORGEN, J.
¶ 1 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.
¶ 2 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 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.
¶ 3 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 had failed to realize it could run Miller's sentences concurrently;
¶ 4 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.
¶ 6 Our Supreme Court succinctly articulated the applicable standard of review in a recent case:
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.App. 76, 79, 261 P.3d 680 (2011); accord, Barton v. Dep't of Transp., 178 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.
¶ 7 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
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.
¶ 8 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
¶ 9 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 of Domingo, 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.
¶ 10 Turning to Miller's initial argument, we acknowledge that the State's brief in this appeal contains a large amount of irrelevant material,
¶ 11 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.
¶ 12 The State's argument relies on the following language from Domingo:
155 Wash.2d at 368, 119 P.3d 816 (quoting Greening, 141 Wash.2d at 697, 9 P.3d 206). 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 Wash.2d at 697, 9 P.3d 206. The Turay court described 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 Wash.2d at 83, 74 P.3d 1194.
¶ 13 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.
¶ 15 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 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 Wash.2d at 512, 664 P.2d 466. The Caliguri court addressed the matter as a question of first impression in this state and did not overrule any prior precedent.
¶ 16 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 Wash.2d at 328, 166 P.3d 677. 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 Wash.2d at 807-14, 792 P.2d 506. 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.
¶ 17 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 Wash.2d at 366, 119 P.3d 816; Greening, 141 Wash.2d at 697, 9 P.3d 206. 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 Wash.2d at 697 n. 9, 9 P.3d 206. The 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.
¶ 18 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 Wash.2d at 433-34, 842 P.2d 950; Cook, 114 Wash.2d at 808-13, 792 P.2d 506. As the dicta from our Supreme Court discussed below demonstrate, the notion that sentences for multiple serious violent felonies must run consecutively is just
¶ 19 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:
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).
¶ 20 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(1)(a), explicitly refers to RCW 9.94A.535, the exceptional sentence provision, while the multiple-serious-violent-offense and firearm-offense provisions, RCW 9.94A.589(1)(b) and (c), do not. Mulholland, 161 Wash.2d at 329-30, 166 P.3d 677.
¶ 21 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 Wash.2d at 330, 166 P.3d 677. The Flett court held that a sentencing court had erred in imposing concurrent terms of confinement for multiple firearm enhancements as a mitigated exceptional sentence when the underlying crimes were serious violent offenses. 98 Wash.App. at 808, 992 P.2d 1028. The court analyzed the issue as follows:
Flett, 98 Wash.App. at 806, 992 P.2d 1028 (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
¶ 22 In light of Vandervlugt, 120 Wash.2d at 433-34, 842 P.2d 950, Jacobs, 154 Wash.2d at 602-03, 115 P.3d 281, Flett, 98 Wash.App. at 806, 992 P.2d 1028, and Cook, 114 Wash.2d at 808-13, 792 P.2d 506, 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.
¶ 23 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 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.
¶ 24 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 Wash.2d at 127, 285 P.3d 27; State v. Rosas-Miranda, 176 Wn.App. 773, 779, 309 P.3d 728(2013).
¶ 25 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.
¶ 26 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] 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,
CP at 211 (emphasis added). These statements confirm that the sentencing court believed it had no discretion to run the terms concurrently.
¶ 27 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.
¶ 28 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.
¶ 29 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 "the [sentencing] court's comments indicate it would have considered an exceptional sentence had it known it could," resentencing is appropriate. McGill, 112 Wash.App. at 100-01, 47 P.3d 173.
¶ 30 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.
¶ 31 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:
CP 259-61.
¶ 32 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.
¶ 33 Our Supreme Court held that, although "[t]he record does not show that it
¶ 34 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.
¶ 35 In order "to receive collateral review of a conviction on nonconstitutional grounds, a petitioner must establish that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Cook, 114 Wash.2d at 812, 792 P.2d 506. The superior court concluded that the sentencing court's misunderstanding of the extent of its discretion amounted to such a fundamental defect.
¶ 36 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 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 claim.
¶ 37 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
¶ 38 Affirmed.
We Concur: JOHANSON, A.C.J., and MAXA, J.