(concurring in dissent) — I concur in the *551dissent by Justice Sanders to the extent he concludes that the Indeterminate Sentence Review Board (ISRB) violated King’s Fifth Amendment right against self-incrimination when it imposed an exceptional minimum sentence based on disclosures King made to staff persons at Western State Hospital during a time he was a participant in the hospital’s sexual psychopathy program.
This view is consistent with Pens v. Bail, 902 F.2d 1464 (9th Cir. 1990), a decision which this court should follow. The majority’s suggestion that Pens can be distinguished from the instant case because King’s maximum sentence had been imposed prior to the time he made his incriminating admissions to the hospital staff, whereas Pens had not, seems to me to be an irrelevant distinction. The plain fact is that King’s admissions were used by the ISRB to justify the exceptional minimum sentence imposed on him. As the majority points out, the Fifth Amendment is implicated when a defendant’s statement influences a sentencing decision.16 It goes on to say, however, that by the time the Board set King’s minimum term, his maximum term had been set "and the criminal proceeding was over.” Majority op. at 528.
In my judgment, the criminal proceeding was not over because the final sentencing decision had yet to be made. Although the trial courts in King and Snohomish Counties had earlier determined that King should be sent to prison for the first degree rape convictions occurring within their respective jurisdictions, they had no discretion at those sentencing proceedings but to impose the maximum term of 20 years, as established by statute. RCW 9.95.010.17 On the other hand, the ISRB had considerable *552discretion as to what the minimum term should he.18 Significantly, it is the minimum sentence that is of critical importance to King because it is that sentence that he will actually serve. That being the case, to say that the criminal proceeding was over prior to the minimum sentence being established defies logic.
I choose to write separately rather than concurring fully in Justice Sanders’s dissent because I feel it is unnecessary to address the due process issue that he discusses in part II of the dissent. That issue was not advanced by King in his petition for review and it was not addressed at oral argument by either party. Consequently, I feel that we should not enter this legal thicket, leaving the issue for another day.
The majority indicated its reliance on State v. Post, 118 Wn.2d 596, 604, 826 P.2d 172, 837 P.2d 599 (1992), in which we noted that the State had conceded that "the Fifth Amendment applies to a sentencing hearing where the State seeks an exceptional sentence.” An essential predicate to such a concession is that where, as here, the State seeks an exceptional sentence, the criminal proceeding is not over until the sentence is imposed.
RCW 9.95.010 provides, in relevant part, as follows:
*552"When a person is convicted of any felony . . . the court shall sentence such person . . . and shall fix the maximum term of such person’s sentence only.
"The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term.” (Emphasis added.) See former RCW 9.79.170, Laws op 1979, 1st Ex. Sess., ch. 244, § 1, at 1987 (effective until July 26, 1981) (classifying rape in the first degree as a class A felony) and former RCW 9A.20.020(l)(a), Laws of 1975-76, 2d Ex. Sess., ch. 38, § 2, at 153 (effective until July 26, 1981) (establishing the penalty for class A felonies as "imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years”).
The discretion exercised by the ISRB is effectively equivalent to the discretion now exercised by a trial court in determining whether a defendant is to serve a standard range sentence or an exceptional sentence. When King was sentenced in May 1982, and when the King County Superior Court revoked his suspended sentences and imposed an exceptional sentence in April 1986, the Sentencing Reform Act of 1981 (RCW 9.94A) contained a provision requiring the ISRB and its predecessor to "consider the standard ranges and standards adopted pursuant to [RCW 9.94A.040], and ... to make decisions reasonably consistent with those ranges and standards.” Former RCW 9.95.009(2), Laws op 1981, ch. 137, § 24, at 531-32. See In re Whitesel, 111 Wn.2d 621, 630, 763 P.2d 199 (1988).