The majority unfairly criticizes the Court of Appeals for reconsidering its opinion in State v. Worl, 58 Wn. App. 443,794 P.2d 31 (1990) (Worl I). Relying on its own interpretation of the law of the case doctrine the majority states: "The law of the case doctrine precludes the Court of Appeals' reconsideration of the sentencing issues it had decided in Worl I." Majority at 426. Using its erroneous interpretation of the doctrine, the majority then attempts to prove that the court's decision in Worl I was not clearly erroneous. In so doing, the *Page 430 majority misapplies the "law of the case doctrine" and overrules, in part, Worl I. I dissent.
LAW OF THE CASE DOCTRINE The procedural history of this case makes it questionable whether the law of the case doctrine should be applied. Where, as here, a "question was not considered . . . upon the first appeal, and . . . [the appellant] is not precluded from now raising the question [on remand], [it] does not fall within the rule of `the law of the case.'" Columbia Steel Co. v. State, 34 Wn.2d 700,706, 209 P.2d 482 (1949), cert. denied, 339 U.S. 903 (1950). InWorl I, the defendant challenged his exceptional sentence on three bases. First, he argued that imposing separate sentences for each conviction violated double jeopardy. Second, he contended that the trial court erred in calculating his standard range because it failed to treat the two offenses as "same criminal conduct." Third, the defendant argued that evidence did not support the aggravating factors relied on by the trial court to justify its exceptional sentence. Worl I rejected each of these arguments.
On subsequent appeal to this court, the defendant's sentence was reversed because the trial court had imposed an exceptional sentence which was contrary to law. State v. Barnes, 117 Wn.2d 701,818 P.2d 1088 (1991). The matter was remanded for imposition of a new sentence. On remand, the trial court again imposed an exceptional sentence, citing deliberate cruelty and multiple injuries as the aggravating factors. Worl again appealed his exceptional sentence. In State v. Worl, 74 Wn. App. 605,875 P.2d 659 (1994) (Worl II), the Court of Appeals again reversed the exceptional sentence, this time holding that the sentence violated the real facts doctrine, an issue considered for the first time in Worl II.
In its haste to criticize the Court of Appeals for violating the law of the case doctrine, the majority fails to recognize the important fact that the Worl II court reversed the exceptional sentence on an issue never addressed in *Page 431 Worl I. The law of the case doctrine is a discretionary rule which presumes that rulings on a prior appeal will not be reviewed again. First Small Business Inv. Co. v. IntercapitalCorp., 108 Wn.2d 324, 333, 738 P.2d 263 (1987). It is difficult to see how the law of the case doctrine applies to issues which were not addressed in an earlier opinion, particularly where, as here, the appellate court vacated the sentence and remanded for a new sentencing hearing. See State v. Collicott, 118 Wn.2d 649,827 P.2d 263 (1992) (Collicott II) (reconsidering earlier decision following remand for new sentencing hearing without discussing "law of the case" doctrine); State v. Hillman, 66 Wn. App. 770,832 P.2d 1369 (remanding for resentencing and recognizing that issue raised in first appeal regarding exceptional sentence may be raised again following resentencing),review denied, 120 Wn.2d 1011 (1992).
Even assuming the "law of the case" doctrine does apply, the majority misapplies the doctrine. Initially, the majority criticizes the Court of Appeals because it does not articulate why it finds its earlier decision erroneous. Majority at 426. The law of the case doctrine is now codified in RAP 2.5(c)(2). FirstSmall Business Inv. Co., 108 Wn.2d at 332; Folsom v. Spokane,111 Wn.2d 256, 264, 759 P.2d 1196 (1988). The rule provides:
The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.
RAP 2.5(c)(2).
Contrary to the majority's position, neither RAP 2.5(c)(2) nor the cases require an express statement by the appellate court outlining its reasons for reconsideration. See Folsom; FirstSmall Business Inv. Co. The rule clearly provides, however, for the correction of error:
*Page 432It is beyond question that the court should have the right to correct its own errors when the situation exists, so long as there is substantial and obvious reason for doing so.
Robert E. Baumann, Jr., Comment, Appeal and Error — Law of theCase — Discretionary Rule, 2 GONZ. L. REV 105, 111 (1967). Here, as will be explained below, the real facts doctrine provided the Court of Appeals a substantial and obvious reason for correcting its earlier ruling.
The majority next unfairly criticizes the Court of Appeals because it did not demonstrate that its earlier ruling was "clearly erroneous." However, neither the cases nor the rule require the Court of Appeals to find that the earlier ruling is "clearly erroneous" before declining to apply the law of the case doctrine. The majority derails in misreading Greene v.Rothschild, 68 Wn.2d 1, 402 P.2d 356, adhered to in, 414 P.2d 1013 (1966), to mean that an appellate court may overrule its earlier decision only if that earlier decision was clearlyerroneous. Majority at 424-25. (Emphasis added.) The majority overstates Greene. In Greene, the court recognized that it had made a clear error in a prior ruling in the case. The court explained that the law of the case doctrine should not, and indeed, would not, operate in that case. The court stated that its research had not disclosed
Greene, 68 Wn.2d at 9-10. Thus, far from establishing a "clearly erroneous" standard as the test for determining when the law of the case doctrine applies, the court in Greene merely refused to use that doctrine to perpetuate the clear error that it had previously made. Recognizing that the doctrine was a discretionary rule of practice, the court held that its decision not to apply the law of the case doctrine in Greene was appropriate because "the application of the doctrine would result in unfairness to the litigants and the perpetuation of judicial error." Id. at 10. Since the very same policies are present inWorl, this court should refuse to invoke the law of case doctrine here. *Page 433 Worl II is nearly identical to this court's decision inCollicott II, upon which the Court of Appeals here relied. In the first review of Collicott's sentence, this court held that burglary, rape, and kidnapping arose out of the "same criminal conduct." The matter was remanded for resentencing to allow the trial court to properly calculate the defendant's offender score. Following resentencing, the defendant again appealed. The Court of Appeals certified the second appeal to this court, which accepted review. In the second review, this court rejected its prior holding in State v. Collicott, 112 Wn.2d 399, 771 P.2d 1137 (1989) (Collicott I) regarding "same criminal conduct." Without even mentioning "law of the case doctrine," or analyzing whether its first ruling in Collicott I was "clearly erroneous," this court abandoned its "element sharing" analysis set out inCollicott I and decided to apply the furtherance test to determine "same criminal conduct." Collicott II,118 Wn.2d at 668. The court stated, "[w]e do so because we are now convinced that double punishment is avoided under the Dunaway approach and the merger doctrine." Id. at 668.any case in which this court has recognized that a prior decision in the same case was clearly erroneous and yet has refused to overrule it, feeling restrained by the doctrine of "law of the case"[.]
Similarly, the Court of Appeals in Worl II implicitly recognized that it had failed to apply the real facts doctrine, embodied in RCW 9.94A.370(2), in Worl I. Rather than perpetuate the error of Worl I, the Court of Appeals corrected its earlier decision, giving the defendant the benefit of a correct application of the law. The Court of Appeals did precisely what RAP 2.5 and the cases permit and may even require.
Adherence to the law of the case doctrine is discretionary and the standard of review by this court should be abuse of that discretion. In order to find an abuse of discretion, this court must find that no reasonable judge could find that "justice would best be served" by deciding the case "on the basis of the appellate court's opinion of the law at the time of the later review." RAP 2.5(c)(2). On review, this court will endeavor to uphold an exercise of discretion by the lower courts. The majority here does not discuss the standard of review nor does it make a case to *Page 434 justify a reversal based on abuse of discretion. Instead, the majority analyzes whether the factual record can be read in such a way as to possibly demonstrate that the decision in Worl I was not "clearly erroneous." Apparently, the majority sees a different rule for this court from that which applies to the Court of Appeals, in determining when a court may reconsider its prior ruling.
The law of the case doctrine should not be used by this court to disapprove the Court of Appeals' failure to adhere to its earlier decision when this court must also overrule the Court of Appeal's earlier decision. That the majority must overrule Worl I, in part, vividly demonstrates that it has simply misapplied the law of the case doctrine.
REAL FACTS DOCTRINE Ironically, in attempting to prove the decision in Worl I did not meet the "clearly erroneous" standard, the majority also overrules Worl I. In Worl I, 58 Wn. App. at 451, the Court of Appeals stated, "[t]he crime of malicious harassment was complete when Mr. Worl assaulted Mr. Hill when he exited his car. The repeated slashing evidenced more than an intent to harass by causing physical injury, but evidenced an intent to kill Mr. Hill." (Emphasis added). In Worl II, the Court of Appeals specifically relied on these same facts. From the above quotation it is clear that the Court of Appeals recognized that the charge of attempted second degree murder was based on the numerous wounds inflicted on Hill. None of the wounds, described as lacerations requiring stitches, was sufficient to kill Hill. Rather, as the Court of Appeals found, it was the number of repeated slashings and the persistence of the attack which evidenced an intent to kill Hill and which supported a charge of attempted second degree murder.
The court's conclusion is supported by the facts at trial. Worl and his companion Carver approached Hill as he sat in his vehicle at a Safeway parking lot. Worl made hostile, racially based remarks to Hill and kicked Hill's car. Hill reached for a pipe on the floor of his vehicle and exited *Page 435 the car. Worl rushed Hill and knocked the pipe from Hill's hand. Carver hit Hill from behind. Thereafter, Worl began the slashing which resulted in the charge of attempted murder. Worl I, 58 Wn. App. at 445-46. Based on these facts, the Court of Appeals correctly concluded that the malicious harassment "was complete when Mr. Worl assaulted Mr. Hill when he exited his car" and that the subsequent slashing comprised facts supporting the second degree murder attempt. Worl II, 74 Wn. App. at 616.
Accordingly, the Court of Appeals correctly rejected the exceptional sentence imposed by the trial court on the charge of malicious harassment because it was based on the same facts which supported the charge of attempted second degree murder — the number of wounds inflicted on Hill and the persistence of the attack. These factors, the court reasoned, necessarily related to the attempted second degree murder which arose as a result of the numerous wounds suffered by Hill. Use of these factors, the court concluded, violated the real facts doctrine, thus requiring vacation of the exceptional sentence.
Recharacterizing the facts relied on both in Worl I and Worl II, the majority says, "[T]he court based its reasoning on its prior holding that the crime of malicious harassment was complete when the victim exited his car because it was only after he exited his car that the physical assault occurred." Majority at 427. The majority then states "the Court of Appeals cannot be correct in its holding that the malicious harassment ended before the victim sustained injury" because the State charged Worl with RCW 9A.36.080(1)(a), which requires proof of an injury. Majority at 428. Simply reading the statement of facts from the Court of Appeals, however, demonstrates the Court of Appeals did not make such a holding.
After rejecting what the majority mistakenly views as the facts relied upon by the Court of Appeals, the majority reasons that since the jury must have found that some physical injury was attributable to the malicious harassment then the aggravating factors of deliberate cruelty *Page 436 and multiple injuries can aggravate the malicious harassment penalty. The majority does not, unfortunately, reveal what conduct comprised the crime of malicious harassment. Nor does the majority disclose what evidence supported the charge of attempted second degree murder. It should go without saying that sufficient evidence of each crime must exist to support a conviction on each charge. Because the majority never discusses the point at which the malicious harassment became attempted second degree murder, it never analyzes the violation of the real facts doctrine alleged by the defendant and relied upon by the Court of Appeals to reverse the exceptional sentence.
As the Court of Appeals recognized, the real facts doctrine prohibits the trial court's reliance on the facts which constitute attempted second degree murder as aggravating factors to support an exceptional sentence for malicious harassment. RCW 9.94A.370(2) provides that
See also Worl II, 74 Wn. App. at 616 (citing State v. Woody,48 Wn. App. 772, 779, 742 P.2d 133 (1987), review denied, 110 Wn.2d 1006 (1988)). RCW 9.94A.390 does not apply here and there was no stipulation. Therefore, under the statute there is no basis to go outside the presumptive range in this case.Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390. . . .
The Court of Appeals in Worl II correctly concluded that the exceptional sentence in this case violates the real facts doctrine because the slashing injuries to the victim in support of the attempted second degree murder charge cannot be used to aggravate the sentence for the malicious harassment charge.
SAME CRIMINAL CONDUCT The trial court in this case found the two crimes of malicious *Page 437 harassment and attempted second degree murder were separate and distinct. Worl II, 74 Wn. App. at 615. Accordingly, the trial court declined to hold the two crimes constituted "same criminal conduct." The Court of Appeals affirmed the trial court in this issue in Worl I. Worl I, 58 Wn. App. at 451.
The majority disagrees with the trial court and the Court of Appeals in Worl I. It finds that the two crimes indeed constitute "same criminal conduct." By reaching this conclusion, the majority overrules Worl I in part. Majority at 429.
The majority's analysis of the facts, of course, leaves it with no choice but to overrule the trial court and Worl I. In order to affirm the trial court's exceptional sentence, the evidence of numerous wounds and repeated slashing must be tied to the crime of malicious harassment. The majority thus blurs the facts underlying the two charges to justify its conclusion that the ultimate holding of Worl I, affirming the exceptional sentence for the malicious harassment charge, was not clearly erroneous. Unfortunately, when the majority melds the facts of the malicious harassment and the attempted second degree murder, they become so inextricably tied that the two crimes then must be viewed as the "same criminal conduct" because they are "intimately related" with "no substantial change in the nature of the criminal objective." State v. Dunaway, 109 Wn.2d 207, 213, 743 P.2d 1237,supplemented in, 749 P.2d 160 (1987) (citing State v. Edwards,45 Wn. App. 378, 382, 725 P.2d 442 (1986)). If the majority correctly applied the real facts doctrine, the "same criminal conduct" issue would not arise.
REMAND INSTRUCTIONS Finally, the majority has remanded this matter to the trial court for resentencing with instructions that the trial court may reconsider whether to run sentences for these crimes consecutively.
RCW 9.94A.400(1)(a) discusses the treatment of current *Page 438 offenses and concurrent/consecutive sentencing. The section distinguishes between current offenses which are "same criminal conduct" and those which are not. Specifically, it provides that if current "offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently." RCW 9.94A.360(6)(a) provides that "[p]rior adult offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yieldsthe highest offender score." (Emphasis added.) Read together, RCW 9.94A.400(1)(a) and 9.94A.360(6)(a) strongly suggest that treating current offenses involving "same criminal conduct" as one offense precludes sentences from being run consecutively.
This court has never addressed the question of whether offenses which encompass "same criminal conduct" may be run consecutively, nor have the parties briefed the issue. In fact, the issue only arises because the majority rejects the Worl I decision and declares the offenses in this case encompass "same criminal conduct." I do not agree that the court should essentially decide this issue without briefing by the parties. Moreover, questionable instructions regarding consecutive sentences ensures a Worl III.
In my view, Worl II correctly decided that an exceptional sentence is precluded here by the real facts doctrine and, accordingly on remand, the trial court should impose a standard range sentence.
JOHNSON and ALEXANDER, JJ., concur with MADSEN, J. *Page 439