¶18 (dissenting) — Because the sentence imposed here looks like a hybrid sentence and acts like a hybrid sentence, I would hold it is a hybrid sentence. When a trial court imposes sentences with some terms running concurrently and others consecutively to each other, then it imposes an illegal hybrid sentence. Accordingly, I would remand for resentencing.
¶19 The majority holds that because the trial court sentenced Green under subsection (2) of RCW 9.94A.589, prior case law invalidating unlawful hybrid sentences un*338der subsection (3) of RCW 9.94A.589 does not apply here. I disagree because trial courts may not impose hybrid sentences under any subsection of RCW 9.94A.589, and the trial court here imposed an unlawful de facto hybrid sentence on Green.
¶20 First, the majority contends that the trial court validly sentenced Green to an exceptional downward sentence under RCW 9.94A.589(2), so State v. Smith, 142 Wn. App. 122, 173 P.3d 973 (2007) and State v. Grayson, 130 Wn. App. 782, 125 P.3d 169 (2005) — that both invalidate hybrid sentences — do not apply here because they involved sentences imposed under RCW 9.94A.589(3). But the majority provides no substantive differences to distinguish the effect of Green’s sentence from the illegal hybrid sentence imposed in Smith. And, though Division One of this court confined its analysis in Grayson to RCW 9.94A.589(3), that same court framed the issue much more broadly in Smith: “We must decide whether the trial court gave . . . Smith a part concurrent, part consecutive ‘hybrid sentence’ in violation of RCW 9.94A.589.” Smith, 142 Wn. App. at 123 (emphasis added). Though Smith involved a sentence imposed under RCW 9.94A.589(3), the court’s broad language implies that the prohibition against hybrid sentencing extends to any sentence imposed under RCW 9.94A.589.
¶21 Second, Green’s case closely mirrors Smith, which invalidated an illegal hybrid sentence. Both cases involved drug offender sentencing alternative (DOSA) and nonDOSA sentence terms. Though Smith received his sentence under a different subsection of RCW 9.94A.589, the trial court ultimately sentenced Smith and Green to similar sentences. Like Smith, Green will serve concurrently his in-custody drug offender sentencing alternative (DOSA) sentence term with the first part of his non-DOSA sentence. See Smith, 142 Wn. App. at 126. Then also like Smith, Green will serve the remaining term of confinement on his nonDOSA sentence. See Smith, 142 Wn. App. at 126. Finally, like Smith, Green will serve his remaining community *339custody portion of his DOSA sentence consecutively to his non-DOSA sentence. Schematically, the trial court sentenced Green to the same type of sentence that Division One declared invalid in Smith. There, in determining the sentence to be invalid, the court reasoned,
Smith also received a hybrid sentence. The in-custody portions of his DOSA sentences run concurrently with his nonDOSA sentence of 43 months, but the community custody portions of his DOSA sentences run consecutively to the non-DOSA sentence. . . . Smith’s sentence is part concurrent and part consecutive.
Smith, 142 Wn. App. at 127-28. This exact language could apply here, by simply changing the appellant’s name and sentence duration. Because again, if a sentence looks like an unlawful hybrid sentence and acts like an unlawful hybrid sentence, it is an unlawful hybrid sentence.
¶22 Given Division One’s broad language in Smith, it is inconsequential that the trial court imposed Green’s sentence under a different statutory subsection than in Smith. Green’s sentence, though imposed under RCW 9.94A-.589(2), constitutes an illegal de facto hybrid sentence, with some terms served concurrently and others consecutively.
¶23 Accordingly, in my view, Green carried his burden, demonstrating by a preponderance of the evidence that under Smith, his hybrid sentence is illegal. Smith, 142 Wn. App. at 127-28. Therefore, I would grant Green’s personal restraint petition and remand for resentencing.