(concurring) — I have some difficulty determining which position the majority adopts — the Indeterminate Sentence Review Board's (Board), the petitioners', or a hybrid of the two. The majority affirms the Board after concluding that it did not abuse its discretion, but fails to say if, as argued by the Board, such discretion only comes into play when the Board is deciding if the mandatory minimum term should be waived. Nor does the majority address the Board's reliance on In re Hunter, 106 Wn.2d 493, 723 P.2d 431 (1986), to argue that written reasons are not required for a mandatory minimum sentence outside the ranges set forth in the Sentencing Reform Act of 1981 (SRA).105 On the other hand, the majority appears to adopt the petitioners' position that written findings are required, but never addresses peti*700tioners' argument that RCW 9.95.013 overrides the habitual criminal statutes entirely.106
Given Hunter (which was decided 3 years before RCW 9.95.013 was enacted), and the failure of the Legislature to repeal or amend RCW 9.92.090 and RCW 9.95.040(3), (4), and .011,107 believe the Board has the better position; i.e., that the initial setting of minimum terms for pre-SRA habitual offenders is mandated by statute. This precludes the application of RCW 9.95.009(2) and obviates the need for written reasons justifying the length of the sentence. The factors listed in RCW 9.95.009(2) and RCW 9.95.013, and the requirement for written findings, however, will apply to subsequent decisions regarding waiver of the mandatory minimum.
Brachtenbach and Andersen, JJ., concur with Durham, J.
Reconsideration denied January 10, 1992.
Hunter noted that RCW 9.95.009(2) had been amended in 1986 to require adequate written reasons if a sentence is set outside of the SRA ranges. This did not affect our analysis, however, because RCW 9.95.040(1) provided a statutory reason for imposing a mandatory minimum term. Hunter, at 497 n.ll.
The majority also fails to address relevant legislative history. Prior to passage of Substitute House Bill 1457, the following language supporting petitioners' position was proposed by the Senate, but rejected by the House. House Journal, 51st Legislature (1989), at 2403.
The board shall conduct a review of every person who, on the effective date of this act, is incarcerated and has been adjudged under the former provisions of RCW 9.92.090. For those persons incarcerated on the effective date of this act, the board shall set a minimum, term without regard to such status, pursuant to the provisions of chapter 9.95 RCW. . . .
(Italics mine.) House Journal, at 2202-03.
RCW 9.95.011, enacted in 1986 (Laws of 1986, ch. 224, § 7) and overlooked by the majority, addresses the court's duty to set minimum terms after the Board no longer functions in that capacity. It provides, in part:
The court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges adopted under [the SRA], but the court is subject to the same limitations as those placed on the board under RCW 9.92.090, 9.95.040 (1) through (4) . . ..
(Italics mine.)