(dissenting) — The majority reverses the Court of Appeals on the Fifth Amendment issue, the only issue raised by the state in its Motion for Discretionary Review.13 However the Court of Appeals’ opinion in this case was decided on at least two independent grounds: (1) consideration of Ecklund’s refusal to admit guilt violated his Fifth Amendment rights, In re the Personal Restraint of Ecklund, 91 Wn. App. 440, 450-51, 957 P.2d 1290 (1998), and (2) the decision of the Indeterminate Sentence Review Board (ISRB) violated the governing statute. Id. at 451 (“Ecklund’s denial of guilt is not sufficiently compelling or rare so as to justify deviation from the standard range sentences for homicide set by the Legislature.”).
A. No review of issues that are not designated in the Motion for Reconsideration
Even if the majority is correct that Ecklund’s Fifth Amendment rights were not violated, the Court of Appeals must be affirmed on the independent statutory grounds set forth in its opinion.
Independent grounds set forth in a Court of Appeals’ *179opinion are not subject to our review unless they are raised in the petitioner’s Motion for Discretionary Review. RAP 13.7(b) is mandatory:
[i]f the Supreme Court accepts review of a Court of Appeals decision, the Supreme Court will review only the questions raised in the motion for discretionary review ....
RAP 13.7(b). See also Shumway v. Payne, 136 Wn.2d 383, 392-93, 964 P.2d 349 (1998); Estate of Jordan v. Hartford Accident & Indem. Co., 120 Wn.2d 490, 496, 844 P.2d 403 (1993) (“Because Hartford [respondent] failed to assign error to the Court of Appeals ruling that Jordan [petitioner] has standing, we will not review that aspect of the court’s decision.”); Clam Shacks of Am., Inc. v. Skagit County, 109 Wn.2d 91, 98, 743 P.2d 265 (1987) (“The petition for review does not challenge this holding [of the Court of Appeals] so we need not rule upon it.”).
Here the Court of Appeals based its holding not only on constitutional grounds but independent statutory considerations. It observed while the ISRB’s primary reason for denial of parole in this case is Ecklund’s refusal to admit guilt for the crime for which he is serving his sentence, there was no evidence in the record linking such a refusal to lack of rehabilitation, therefore concluding the ISRB violated RCW 9.95.009(2) by failing to provide adequate reasons for its decision as statutorily mandated. The Court of Appeals further held the ISRB committed a second statutory transgression because use of denial of guilt is not a statutorily authorized aggravating factor under RCW 9.94A.390.
The Motion for Discretionary Review does not challenge either of these independent statutory grounds upon which the Court of Appeals also rested its decision. Accordingly RAP 13.7(b) precludes our review of these statutory issues because they were not properly preserved for our review.
B. ISRB has no discretion to violate statute
Even if these independent statutory grounds had been *180properly challenged, the Court of Appeals’ decision still should be affirmed on the merits. A decision of the ISRB in a case such as this, where the decision violates the law, is outside the ISRB’s discretion and is not entitled to deference. Therefore the abuse of discretion standard of review utilized by the majority is simply inapplicable.
To succeed in a personal restraint petition (PRP) a petitioner must demonstrate he is under restraint, RAP 16.4(b), and that the restraint is unlawful for at least one of the reasons enumerated in RAP 16.4(c). One circumstance rendering restraint unlawful is an order in a criminal proceeding “entered in violation of the . . . laws of the State of Washington.” RAP 16.4(c)(2). When restraint is unlawful because it violates Washington’s statutory law the error is a legal one to which the abuse of discretion standard of review is inapplicable.14 In re Personal Restraint of Shepard, 127 Wn.2d 185, 191-92, 898 P.2d 828 (1995) (“Petitioner need not prove an abuse of discretion once he shows the [Indeterminate Sentence Review] Board failed to follow its regulations.”); In re Personal Restraint of Cashaw, 123 Wn.2d 138, 149, 866 P.2d 8 (1994) (“[W]e evaluate Cashaw’s PRP by examining only the requirements of RAP 16.4. . . . [Cashaw’s] restraint was unlawful because it was accomplished in violation of the Board’s regulations. See RAP 16.4(c)(2), (6).”) (footnote omitted).15 However deferential the abuse of discretion standard, it does not *181excuse actions of the ISRB outside its legislatively delegated sphere of discretion.
C. ISRB must give adequate written reasons when imposing exceptional sentence
When setting minimum terms and determining parole, the ISRB must make decisions which are “reasonably consistent” with the “ranges, standards, purposes, and recommendations” of the Sentencing Reform Act of 1981 (SRA). RCW 9.95.009(2); RCW 9.95.013; see also Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 511, 730 P.2d 1327 (1986) (offenders convicted and sentenced before the SRA became effective are entitled to have their terms reviewed and redetermined pursuant to SRA purposes, standards, and ranges). Although the ISRB is not bound to mirror SRA criteria in its decisions, but only to be “reasonably consistent” with it, In re Personal Restraint of Locklear, 118 Wn.2d 409, 414, 823 P.2d 1078 (1992), the legislature has nevertheless provided:
[T]he board and its successors shall give adequate written reasons whenever a minimum term or parole release decision is made which is outside the sentencing ranges adopted pursuant to RCW 9.94A.040 [the SRA].
RCW 9.95.009(2) (emphasis added). The statute therefore imposes a mandatory duty upon the ISRB not simply to provide written reasons for its decision, but for those reasons to be adequate. Minimum adequate reasons must also be supported by facts in the record on appeal. Locklear, 118 Wn.2d at 417 (“[T]he [ISRB’s] reasons for an exceptional sentence must be apparent from the record and not chosen ‘out of thin air’ ”) (quoting In re Personal Restraint of Robles, 63 Wn. App. 208, 218, 817 P.2d 419 (1991)).
*182Here the ISRB added 60 months to Ecklund’s minimum term, bringing his total minimum term to 360 months.16 Ecklund’s minimum term is therefore 40 months in excess of the top of the relevant SRA sentencing range of 240 to 320 months. RCW 9.94A.310. This is an exceptional sentence17 for which the ISRB must provide adequate written reasons. RCW 9.95.009(2).
The ISRB characterized its primary reason for denying Ecklund parole as “he [Ecklund] continues to deny his involvement in the crime; however, all of the evidence is in the contrary.” Mot. for Discretionary Review, Attach. 3, at 2 (ISRB Decision & Reasons (Oct. 8, 1996, amended Nov. 7, 1997)). However, even if true, the ISRB does not articulate a rationale to justify denial of parole based simply upon a continued assertion of innocence. Indeed the ISRB’s decision focuses almost exclusively on the details of the crime and Ecklund’s refusal to admit guilt, concluding it has “concern regarding his [Ecklund’s] denial as to what kind of risk he would present in returning to the community.” Id. at 3. However the ISRB can point to nothing in the record showing that Ecklund’s refusal to admit guilt is linked to a higher risk of reoffending. To the contrary, the psychological evaluation of Ecklund states,
[Ecklund] lacks many of the risk factors that otherwise would indicate a high risk for reoffending: no juvenile delinquency, no prior acts of physical violence documented, no prior adult offenses other than traffic violations, and no major infractions during incarceration involving fighting or assaultiveness. He has in fact maintained a major infraction-free record during his incarceration since 1985, has programmed adequately, and has involved himself in a number of constructive activities. Thus, given all the years he has served, one wonders whether it now would make much difference in terms of his risk of reoffending whether or not he admits to having committed the instant offense.
*183Mot. for Discretionary Review, Attach. 11, at 4-5 (emphasis added) (Psychological Evaluation by Helmut Riedel, Ph.D. (May 13, 1996)). The ISRB explicitly acknowledges Ecklund has done everything he can, short of confessing, to comply with the ISRB’s requirements, stating Ecklund has “complied with those expectations [set out by the parole board in 1995] with the exception of Victim Awareness, which is not offered at this facility.” Mot. for Discretionary Review, Attach. 3, at 2 (ISRB Decision & Reasons). Not only does the record before this court fail to demonstrate any connection between Ecklund’s refusal to admit guilt and an increased risk of reoffending but it seems to affirmatively negate the unsupported inference as well. Absent such a connection, the ISRB’s decision to deny parole and impose an exceptional sentence based primarily on Ecklund’s refusal to admit guilt lacks an adequate statement of reasons mandated by RCW 9.95.009(2).
The majority demonstrates its agreement on this point when it states,
[W]e do not believe that it would have been appropriate for the [Indeterminate Sentence Review] Board to base an exceptional minimum term solely on Ecklund’s refusal to admit that he was guilty of the offense which led to his sentence....
Majority at 176. However the relief granted by the Court of Appeals was remand to the ISRB with instructions to reconsider its decision “without regard to [Ecklund’s] claim of innocence and denial of guilt.” Ecklund, 91 Wn. App. at 454. By rejecting the terms of the remand which would disallow this narrow factor, the majority mistakenly permits the ISRB to assume refusal to admit guilt is tantamount to lack of rehabilitation absent an articulated basis in the record. Majority at 176 (“[The ISRB] is justified in considering [Ecklund’s] denial of guilt as a fact bearing on the question of whether he had been rehabilitated and presents a threat to community safety.”). Such an assumption and such deference to the ISRB is inconsistent with the statutory mandate that “adequate written reasons” must be *184provided before an exceptional sentence is imposed. RCW 9.95.009(2).
Tbe majority relies on RCW 9.95.009(3), which gives priority to “public safety considerations” to justify the ISRB’s decision.18 However precedent holds simple assertion by the ISRB that public safety is at issue, as in the present case, is insufficient to comply with the statute. Locklear, 118 Wn.2d at 418 (seeking to ensure “there will be a record sufficient to permit meaningful and efficient appellate oversight of ISRB minimum term decisions”). If merely raising the specter of danger to public safety were enough to immunize an ISRB decision from reversal, then judicial review would amount to little more than a rubber stamp.
D. Maintaining innocence is not a statutory basis to enhance punishment
Furthermore the decision of the ISRB does not accord with RCW 9.94A.390(2) which defines these aggravating circumstances in which an exceptional sentence may be imposed. Refusal to admit guilt is not specified as an aggravator, and no aggravator listed is applicable in this case. Although the list of circumstances in RCW 9.94A.390(2) is not exclusive and is described as “illustrative only,” it nevertheless provides statutory guidance. Ordinary lack of remorse and/or denial of guilt is not sufficient to aggravate a crime. State v. Garibay, 67 Wn. App. 773, 781-82, 841 P.2d 49 (1992) (“The mundane lack of remorse found in run-of-the-mill criminals is not sufficient to aggravate an offense; the lack of remorse must be aggravated or egregious. . . . Trial courts may not use a defendant’s silence or continued denial of guilt as a basis for justifying an exceptional sentence.”). In this case although Ecklund as*185serts his innocence, there is nothing unusual or egregious about this which would justify an exceptional sentence. The ISRB is required by RCW 9.95.013 to make decisions “reasonably consistent” with the SRA. Here the ISRB’s use of refusal-to-admit-guilt as the sole aggravator justifying imposition of an exceptional sentence is not “reasonably consistent” with the SRA as required by RCW 9.95-.013.
The majority farther relies on In re Personal Restraint of Locklear, 118 Wn.2d 409, 823 P.2d 1078 (1992), for the proposition that a prisoner’s lack of rehabilitation may justify imposition of an exceptional new minimum term. While Locklear certainly supports that legal proposition where lack of rehabilitation can be demonstrated, the facts of Locklear differ significantly from those before us. In Locklear the petitioner’s parole had been revoked twice before the ISRB extended his minimum term to an exceptional sentence. While a record demonstrating two instances when parole, was revoked clearly provides some basis for a finding of lack of rehabilitation, Ecklund’s case is clearly distinguishable, for there is no such clear indication in the record before us that Ecklund has not been rehabilitated.
Because the ISRB has not provided adequate reasons for its decision as required be RCW 9.95.009(2) and because there are no aggravating circumstances under RCW 9.94A-.390 justifying imposition of an exceptional sentence, the decision of the ISRB violates statutory law.
The Court of Appeals must be affirmed because the independent statutory grounds for the decision were not properly raised on review and the Court of Appeals correctly decided them in any event.
The issue presented for review by the state is:
Did the Court of Appeals commit error when it held that, under the Fifth Amendment, the Board is prohibited from considering an offender’s refusal to acknowledge guilt when (1) the privilege against self-incrimination does not apply to criminal behavior that the offender has already been convicted of; (2) the Board’s assessment of an offender’s parolability is not part of the “criminal case” to which the Fifth Amendment applies, and (3) an offender’s refusal to confront his criminal behavior is important to the Board’s assessment of his level of rehabilitation?
Mot. for Discretionary Review 1-2 (emphasis added).
Abuse of discretion differs from the standard of review ordinarily applied to personal restraint petitions (PRPs), which requires “actual and substantial prejudice” in the case of constitutional error and “a fundamental defect which inherently results in a complete miscarriage of justice” in the case of nonconstitutional error. In re Personal Restraint of Cook, 114 Wn.2d 802, 810, 812, 792 P.2d 506 (1990). We have held such onerous standards of review are inapplicable to PRPs which challenge decisions, such as denial of parole or the setting of a minimum term, from which there has been no previous opportunity for judicial review. In re Personal Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994).
The majority attempts to distinguish Cashaw on the basis that the challenge in Cashaw concerned the ISRB’s failure to follow its own regulations rather than a failure to follow a statutory mandate as in the present case. Majority at 177 n.12. However in Cashaw we specifically stated,
The Board’s administrative regulations qualify as “laws of the State of Washington” as that term is used in RAP 16.4(c)(2), (6). General references to *181“laws of this State” or “laws of the State of Washington” not only include within their scope Washington’s statutes, but generally also reach administrative regulations.
Cashaw, 123 Wn.2d at 149-50 n.6. It is therefore clear that Cashaw is based upon the fact that the ISRB’s regulations constitute part of the state law which prescribes the sphere of discretion of the ISRB. The majority’s inference that the ISRB’s discretion is limited by regulation but not by statute is not only illogical but also blatantly erroneous.
The 360-month minimum term is calculated by adding Ecklund’s original 276-month minimum term, the 24 months added in 1995, and the 60 months added in 1996.
The majority agrees that Ecklund’s sentence is exceptional. Majority at 169.
RCW 9.95.009(3) states,
Notwithstanding the provisions of subsection (2) of this section, the indeterminate sentence review board shall give public safety considerations the highest priority when making all discretionary decisions on the remaining indeterminate population regarding the ability for parole, parole release, and conditions of parole.