¶17 (dissenting) — The exceptional sentence imposed on Lowell Deray Finstad was not supported by factual findings or the defendant’s stipulation as required by the Sentencing Reform Act of 1981 (SRA), chapter 9.94A *512RCW, and by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). This error resulted in the imposition of 40 months of incarceration that the trial court was not authorized to impose. Because he shows that more than three years of his sentence suffers from statutory and constitutional infirmity, Finstad demonstrates the sufficient prejudice to support his personal restraint petition (PRP). Rather than speculate as to the lawful sentence the trial court would or could have imposed had it understood the requirements for imposing an exceptional sentence, I would grant Finstad’s PRP and remand this matter to the trial court to impose a lawful sentence as our precedent requires. I dissent.
DISCUSSION
¶18 This case is not about whether personal restraint petitioners who are unlawfully sentenced “must show that they were prejudiced by the claimed error.” Majority at 503. Our case law makes clear that they must. This case is about whether imposing sentences in excess of what is authorized by law results in prejudice that entitles a petitioner to relief in the form of receiving a legal sentence. Our case law makes clear that it does.
¶19 I agree with the majority that overcoming the procedural bar does not, in and of itself, entitle a petitioner to relief. Id. at 507.1 also agree that petitioners must demonstrate prejudice for relief to be available. Id. at 508. However, the majority overlooks that while we approach these procedural and substantive prongs of analysis separately, “of course they may turn on the same facts in a particular case.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 138 n.9, 267 P.3d 324 (2011).
¶20 This is just such a case. The unlawful sentence imposed on Finstad not only enables him to overcome the procedural bar but also demonstrates that he was preju*513diced. Here, the sentencing court imposed an exceptional sentence on Finstad that it was not authorized to impose under the SRA or the United States Constitution. This sentence resulted in the prejudicial imposition of 40 additional months’ incarceration. Because Finstad overcomes both the procedural and substantive bars, he is entitled to relief. We should grant his PRP and remand this matter to the trial court so that it may impose a lawful sentence on Finstad.
I. The exceptional sentence imposed by the trial court violated the SRA and the United States Constitution, thereby prejudicing Finstad
¶21 There is no dispute in this case that the trial court exceeded its authority by running sentences for current offenses consecutively. RCW 9.94A.589(l)(a) (“Sentences imposed under this subsection shall be served concurrently.”). If the trial judge had followed the SRA, the only way he could have imposed consecutive sentences was by following the provisions of RCW 9.94A.535. RCW 9.94A.589(l)(a).
¶22 RCW 9.94A.535 allows a trial court to impose “a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.” In addition, RCW 9.94A.535 requires the court to “set forth the reasons for its decision in written findings of fact and conclusions of law.” No written findings of fact and conclusions of law were entered by the trial judge in this case. The trial judge did not find — nor did the parties advise the judge that he needed to find — substantial and compelling reasons that justified an exceptional sentence.
¶23 In order to demonstrate nonconstitutional prejudice, a personal restraint petitioner must show “a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.” Coats, 173 Wn.2d at 132. The trial court in this case failed to follow the *514law. This failure resulted in a set of consecutive 40-month sentences that should have run concurrently. It should go without saying that 40 more months in prison — imposed without authorization — is a fundamental defect that results in a complete miscarriage of justice.
¶24 In addition to the prejudicial SRA violation, Finstad’s sentence clearly runs afoul of the constitutional rules laid down by the United States Supreme Court in Apprendi, 530 U.S. 466, and. Blakely, 542 U.S. 296.10 In Apprendi, the Supreme Court recognized that facts that increase the penalty for a crime “beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The Court determined that it was unconstitutional to remove “ ‘the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ ” and that it was “ ‘clear that such facts must be established by proof beyond a reasonable doubt.’ ” Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J., concurring)). In Blakely, the Supreme Court indicated that a defendant could waive Apprendi rights but clarified, “When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” Blakely, 542 U.S. at 310 (emphasis added).
¶25 In making this constitutional inquiry, it is irrelevant that the findings required under the SRA are sentencing *515factors rather than traditional elements of the offense. Under Apprendi, when a sentence enhancement is used “to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense.” 530 U.S. at 494 n.19. Because the SRA requires written findings to impose any sentence outside the standard range sentence, RCW 9.94A.535, these findings plainly fall within Apprendi’s purview and must accordingly be made beyond a reasonable doubt. Apprendi, 530 U.S. at 490.
¶26 The majority takes issue with this constitutional analysis, contending that based on Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), and State v. Vance, 168 Wn.2d 754, 762, 230 P.3d 1055 (2010), “it is well established that Blakely, like Apprendi . . . before it, does not apply to questions of consecutive sentencing.” Majority at 508 n.7. But Ice considered only “the scope of the Sixth Amendment’s jury-trial guarantee, as construed in Apprendi” 555 U.S. at 163. Ice held that the Oregon legislature could assign a judge, rather than a jury, as a finder of fact when seeking to impose consecutive sentences without violating the Sixth Amendment. Id. at 168-69. Nowhere in Ice did the United States Supreme Court abrogate Apprendi’s clear Fifth Amendment requirement that facts supporting a sentence enhancement be found— either by judge or by jury — beyond a reasonable doubt. The trial judge in Ice made findings under Oregon law sufficient to impose consecutive sentences. Id. at 165-66. In Vance too, we held that “[u]nder Ice, a sentencing judge ... may find facts to support consecutive sentences,” 168 Wn.2d at 762 (emphasis added), and concluded that because the trial judge engaged in the appropriate fact finding, he did not err, id. at 762-63. Therefore, even after Vance and Ice, for a trial court to constitutionally impose a sentence beyond the statutory maximum, either the jury or the judge must engage in fact-finding to support such a sentence.
¶27 In this case, Finstad waived his right to a jury by pleading guilty. At sentencing, there was no fact-finding by *516the judge that supported the imposition of consecutive exceptional sentences beyond a reasonable doubt as constitutionally required by Apprendi. Finstad’s sentence was thus plain error under the United States Constitution.
¶28 In cases of constitutional error, we have required personal restraint petitioners to show that “they were actually and substantially prejudiced.” Coats, 173 Wn.2d at 132. As discussed, the imposition of an exceptional sentence in this case plainly violates what the United States Supreme Court has constitutionally required when it comes to employing sentence enhancements. Accordingly, there is little question that the exceptional sentence imposed here, which resulted in 40 additional months of prison time for Finstad, constitutes actual and substantial prejudice.
¶29 The majority, however, engages in a post hoc rationalization to conclude that there was no prejudice in this case, claiming that “[a]ny error here could have been avoided by simply scheduling the entry of the pleas for two successive days. Actual and substantial prejudice is made of sterner stuff.” Majority at 509 (emphasis added). All trial court errors could have been avoided by following appropriate procedures; the point is that appropriate procedures were not followed. As for “sterner stuff,” most people would consider an illegally imposed 40 months in prison to be “stern stuff.” Serving an illegally imposed 40 months in prison is ipso facto prejudicial.
¶30 The majority also suggests that Finstad was not prejudiced because he had notice of the consecutive sentences and that the State’s plea offer dropped the sentencing enhancements it could have sought in return for Finstad’s guilty plea. Majority at 508-09. However, we have consistently held that criminal defendants may not agree to punishment in excess of what the legislature has provided for in the SRA. State v. Barber, 170 Wn.2d 854, 870-71, 248 P.3d 494 (2011); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 871, 50 P.3d 618 (2002); In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991); In re Pers. Restraint *517of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980); In re Pers. Restraint of Carle, 93 Wn.2d 31, 33-34, 604 P.2d 1293 (1980). If the majority wishes to depart from cases that disallow a plea agreement to alter the trial court’s legislatively granted sentencing authority, it should overrule them.11
¶31 The trial court might conceivably have entered appropriate findings to justify this extraordinary sentence, but possibilities in an alternative universe do not alleviate the prejudice Finstad demonstrates from the sentence he actually received — Finstad must serve 40 unauthorized extra months in an actual prison. I would require the trial court to impose a lawful sentence in the first instance.
II. The appropriate remedy is remand for imposition of a correct sentence
¶32 On collateral review, when a legally erroneous sentence has been imposed, we have consistently remanded the case to the trial court for the imposition of a lawful sentence. See In re Pers. Restraint of Beito, 167 Wn.2d 497, 507-08, 220 P.3d 489 (2009) (holding that exceptional sentence imposed in violation of Blakely required remand to impose a lawful sentence); In re Pers. Restraint of Tobin, 165 Wn.2d 172, 176, 196 P.3d 670 (2008) (“[T]he proper remedy is remand for correction of the [sentencing] error.”); In re Postsentence Review of Leach, 161 Wn.2d 180, 188, 163 P.3d 782 (2007) (holding that where portion of sentence is *518not authorized by statute, it “must be excised from [the] otherwise valid sentence”); In re Pers. Restraint of West, 154 Wn.2d 204, 215, 110 P.3d 1122 (2005) (holding trial court exceeding sentencing authority required reversal of the erroneous portion of the sentence imposed); Goodwin, 146 Wn.2d at 873-74 (requiring relief from an unlawful sentence in the form of resentencing within trial court’s lawful authority); In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 310, 313, 979 P.2d 417 (1999) (holding that the sentencing court must enter findings of fact and conclusions of law explaining reasons for the sentence and remanding for the entry of such findings and conclusions). According to these cases, the appropriate remedy here is to remand Finstad’s case to the trial court to impose a lawful sentence. On remand, the trial court is free to impose an exceptional consecutive sentence by engaging in the fact-finding that the SRA and United States Supreme Court precedent require, if appropriate. But this court should not substitute speculations and post hoc rationalizations for the imposition of a sentence that actually complies with the SRA and the United States Constitution.
¶33 Recently, in State v. Chambers, 176 Wn.2d 573, 293 P.3d 1185 (2013), I dissented on similar grounds.12 In Chambers, the majority acknowledged that the trial court failed to follow the SRA in imposing an exceptional sentence, but nonetheless held that Chambers could not demonstrate prejudice because the trial court could have imposed the sentence anyway and because he agreed to the sentence imposed in his plea agreement. 176 Wn.2d at 586-87. In Chambers, I disagreed with the majority’s post hoc endorsement of or acquiescence in the trial courts’ erroneous application of the law. This case presents the same disagreement. The legislature, rather than this court, determines the manner in which trial courts must sentence *519defendants. This court should not permit clear violations of the legislative sentencing mandate — especially those that result in unauthorized imprisonment — to continue to go unchecked in our lower courts. Other than making the untenable assertion that additional imprisonment imposed in violation of the SRA is not prejudicial in the context of PRPs, neither the Finstad nor the Chambers majority offers any convincing or reasoned explanation for endorsing trial court sentencing errors.
CONCLUSION
¶34 Finstad, along with other criminal defendants, is entitled to receive a lawful sentence for his crimes whether or not he agrees to serve an unlawful sentence and whether or not the sentencing court could have legally imposed the sentence in question. Finstad’s sentence was unlawful and resulted in an additional 40 months’ imprisonment. This is plainly prejudicial and entitles Finstad to relief. I would remand this matter to the trial court with instructions to impose a sentence on Finstad that is authorized by law.
¶35 I dissent.
C. Johnson, J, and Chambers, J. Pro Tem., concur with Wiggins, J.Reconsideration denied September 5, 2013.
The majority believes we should not address the constitutional violation in this case because “Finstad does not contend at this court that his sentence violated Blakely." Majority at 508 n.7. Finstad’s pro se PRP does not specifically raise Blakely but instead attacks the provisions of the SRA that implemented Blakely’s requirements. See PRP at 9. Ironically, these same BZaMy-implementing statutes prompt the majority to “err on the side of caution and apply the constitutional standard” of review. Majority at 508 n.7. In any event, Finstad did raise the unconstitutional nature of his sentence below by referring to Blakely’s and Apprendi’s requirements that defendants stipulate to relevant facts or consent to judicial fact-finding before a sentencing court may impose an exceptional sentence, Reply Br. of Finstad at 5-6, and I thus believe that our review of the issue is merited.
The majority states that this dissent’s reading of these cases conflates the trial court’s substantive power to sentence with its duty to follow statutory procedures. Majority at 510 n.9. The majority calls the sentence imposed here a “lawful sentence” because, even though the trial judge failed to follow the SRA, the trial judge could have done so. Id. The majority’s distinction is an artificial one, as trial courts derive their substantive power to sentence only by following the sentencing procedures that the legislature has established. Indeed, the legislature’s power to fix the penalties and punishments for crimes is “ ‘ “plenary and subject only to constitutional provisions.” ’ ” State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) (quoting State v. Thorne, 129 Wn.2d 736, 767, 921 P.2d 514 (1996) (quoting State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937))). Thus, the trial court’s failure to follow the required sentencing statutes must necessarily result in a sentence that is unlawful.
Chambers, who committed his crimes before the publication of Apprendi and Blakely, raised a statutory question under the SRA but not a constitutional issue. Chambers, 176 Wn.2d at 577-78 (noting various crimes occurring in 1999).