(dissenting) — The majority upholds essentially the same sentence previously reversed on review by this court. See State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999). On remand the trial court reimposed the original sentence term as an exceptional sentence—even though the trial court had previously considered and rejected the State’s same request for an exceptional sentence. Clerk’s Papers (CP) at 230. This was error. The trial court is barred by collateral estoppel and the law of the case doctrine from imposing an exceptional sentence on remand after expressly rejecting it at the original sentencing hearing.
As the majority acknowledges, collateral estoppel in a criminal setting stems from the fifth amendment to the United States Constitution protection against double jeopardy and stands for the principle “ ‘that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Majority at 360 (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)). Collateral estoppel applies when ‘‘the issues raised and resolved in the former prosecution are identical to those sought to be barred in the subsequent action.” State v. Peele, 75 Wn.2d 28, 31, 448 P.2d 923 (1968).6
The issue raised by the State and resolved at the original sentence hearing was whether to impose an exceptional *378sentence on grounds of deliberate cruelty and vulnerability of the victim.
So the standard range for the defendant, as he stands before the court, is 315 to 415 months. The State as well has briefed the issue of exceptional sentence and the State is requesting that the court find substantial and compelling reasons to justify an exceptional sentence, based on the facts of this case. The two areas that the State has identified [are deliberate cruelty and vulnerability of the victim].
CP at 223, 224. The State recommended a 587-month sentence. Id. at 225. Tili argued every first degree rape is a terrible crime and urged the court not to impose an exceptional sentence. Id. at 227. The trial court denied the State’s request for an exceptional sentence.
There can be no argument this was a terrible crime. Truly going to affect the victim and the victim’s family forever. It’s the court’s job to decide what is a reasonable sentence within the parameters of the law. The legislature sets those parameters. The court is given the ability to impose more time than the parameters generally call for by the use of what is called an exceptional sentence. As I read the case law and the statutory law in this State, I do not believe an exceptional sentence would be sustained by the appellate court of this state.
Id. at 230. The trial court sentenced Tili to 417 months. Id. at 231.
On review we held the trial court abused its discretion by imposing consecutive sentences for Tili’s three rape convictions. Tili, 139 Wn.2d at 124. We remanded for resentenc-ing. Id. at 128. The State then renewed its request for an exceptional sentence on remand. 2 Verbatim Report of Proceedings (RP) (Apr. 2000) at 8. The trial court complied. Id. at 18; CP at 294 (Findings of Fact and Conclusions of Law for exceptional sentence).
However, our majority contends collateral estoppel does not apply because the issues before the trial court at the original sentencing and on remand are not the same. Majority at 365. The majority so concludes because it *379interprets the trial court’s prior refusal to impose an exceptional sentence as contingent on appellate affirmation of its finding that Tili’s three rape convictions constituted separate criminal conduct. Majority at 357, 365.
By logical extension, the majority allows trial courts to hedge their bets against adverse appellate decisions. This contradicts the express purpose of the Sentencing Reform Act of 1981 (SRA) to provide “a system for the sentencing of felony offenders,” which limits “discretionary decisions affecting sentences” and ensures the imposition of sentences “commensurate with the punishment imposed on others committing similar offenses.” RCW 9.94A.0KX3); see also State v. McClarney, 107 Wn. App. 256, 263, 26 P.3d 1013 (2001) (The purpose of the SRA is “meting out the appropriate punishment for a particular crime, rather than tailoring the sentence to a particular individual.”), review denied, 146 Wn.2d 1002 (2002).
Consistent with this purpose, the SRA does not provide for contingent sentences. Such order necessarily exceeds the authority of the trial court.7
*380At Tili’s original sentencing, the trial court declined to impose an exceptional sentence on grounds of deliberate cruelty and vulnerability of the victim. But on remand it imposed an exceptional sentence on exactly the same facts, citing deliberate cruelty, victim vulnerability, and multiple offenses. Thus, there is an identity of issues as to the imposition of an exceptional sentence on grounds of deliberate cruelty and victim vulnerability, and the trial court is estopped from imposing an exceptional sentence on those grounds.8
The remaining question is whether the trial court may impose an exceptional sentence for multiple offenses. State *381v. Fisher holds the existence of multiple incidents cannot serve as grounds for an exceptional sentence where these incidents form the basis for multiple counts. 108 Wn.2d 419, 425-26, 739 P.2d 683 (1987).
Pursuant to the SRA’s provision on sentencing for multiple current convictions, the trial court took into account Fisher’s simultaneous convictions of two counts of indecent liberties in determining Fisher’s criminal history, in order to compute his offender score and the presumptive sentencing range. By considering the multiplicity of Fisher’s convictions, the trial court already accounted for the multiple incidents underlying those convictions. Therefore, it was not justified in citing Fisher’s commission of multiple incidents with the same victim as a reason for imposing an exceptional sentence. This constituted the consideration of a factor which was necessarily accounted for in computing the presumptive range, and thus it was improper. Therefore, the multiplicity of incidents in this case did not justify an exceptional sentence.
Id. (footnote and citation omitted). Like the current case, Fisher involved concurrent sentences for multiple counts of sexual offenses against the same victim. Id. at 422. Fisher recognizes that basing an exceptional sentence on the fact that multiple crimes must be characterized as the same criminal conduct undermines the legislative authority to control sentencing procedures under the SRA.
The majority fails to recognize this principle. It attempts to limit the holding of Fisher to cases involving multiple charges for separate criminal conduct. Majority at 375 n.5. But a close reading of Fisher defies the majority’s analysis. Fisher holds that the multiple incidents factor does not support an exceptional sentence where the multiple incidents form the basis for multiple charges against a defendant, but could be used to support an exceptional sentence where the defendant admitted to inflicting multiple injuries but was charged only with a single count of a criminal activity.
This court has sanctioned the application of this factor to a noneconomic offense, noting the nonexclusive nature of the *382SRA’s list of aggravating circumstances. State v. Armstrong, 106 Wn.2d 547, 550, 723 P.2d 1111 (1986) (infliction of multiple injuries in the course of a second degree assault is a factor which justifies an exceptional sentence). However, in Armstrong, the multiple incidents took place in the course of a single offense. In contrast, the two incidents of sexual contact here constituted the two counts of indecent liberties of which Fisher was convicted separately.
Fisher, 108 Wn.2d at 425. Fisher makes no exception for multiple convictions based on the same criminal conduct. Nor would such an exception make sense because it contravenes the legislative determination that—without more— convictions arising out of the same criminal conduct shall not give rise to an increased offender level.
Furthermore, the doctrine of the law of the case also bars the trial court from entering an exceptional sentence. Under this principle, “ ‘questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause.’ ” Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988) (emphasis added) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965)); State v. Strauss, 119 Wn.2d 401, 422, 832 P.2d 78 (1992) (Andersen, J., concurring) (“Had this issue been before us, I would have found that deliberate cruelty on the part of Mr. Strauss was demonstrated and that it justified the imposition of the exceptional sentence in this case. The State did not, however, cross-appeal on this issue and, as the majority opinion correctly notes, the law of the case doctrine prevents our considering it at this point.”).
When Tili first sought review of his sentence by this court in 1998, the State chose not to cross appeal the trial court’s judgment which expressly rejected an exceptional sentence. Tili, 139 Wn.2d 107. There has been no substantial change in the evidence on remand. See 2 RP at 3-19. Thus, the law of the case doctrine bars consideration of this issue.
*383I therefore dissent.
Johnson and Chambers, JJ., concur with Sanders, J.
The majority improperly applies the civil standard. Majority at 361 (citing Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983)).
Moreover the record does not support the majority’s interpretation. Without any citation to the record the majority describes the first sentencing hearing as follows:
At sentencing, the trial court stated that it did not believe that an exceptional sentence would be sustained on appeal if the rapes were considered separate and distinct conduct, as the trial court had considered them. However, the court went on to indicate that, should the multiple rapes be considered same criminal conduct on appeal, the same sentence would be imposed, as an exceptional sentence upward, justified by deliberate cruelty and vulnerability of the victim.
Majority at 357.
After imposing Tili’s standard range sentence at the original sentence hearing in 1998, the trial court made the following statement:
I don’t know that it’s necessary, but I think the record should reflect that if the court had considered defendant’s argument about the merger, that I do believe that the various acts constituting this offense could be used as a basis—along with the other reasons mentioned by the prosecuting attorney— could be used as a basis for an exceptional sentence upwards. And in that event, the court feels that the sentence that the court is going to come up with would be a reasonable sentence.
1 RP (Jan. 23, 1998 to Mar. 17, 1998) at 516 (emphasis added). This ambiguous statement, which appears to connect the court’s denial of an exceptional sentence and Tili’s merger argument, became the cornerstone of the State’s argument to the *380trial court on remand for imposing an exceptional sentence. 2 RP (Apr. 14 and 21, 2000) at 7-8.
At the second sentencing hearing in 2000, the State read into the record the above quoted passage and argued that in making this statement the trial court had purposely left the door open to impose an exceptional sentence on remand should the State Supreme Court reverse its decision to treat Tili’s three rape convictions as separate criminal conduct. 2 RP (Apr. 14 and 21, 2000) at 7-8. The trial court adopted the State’s self-serving characterization of its prior decision and imposed an exceptional sentence on remand. Id. at 18.
But the record reveals “the defendant’s merger argument” had nothing to do with this court’s decision to treat the rape crimes as separate criminal conduct. 1 RP at 491-92; CP at 29- 30. Prior to the imposition of Tili’s sentence at the original sentence hearing the defendant asked the court to rule on four separate motions raised in his sentencing memorandum. 1 RP at 489-92. For the purposes of this decision we need concern ourselves with only the merger argument and the same conduct argument. Tili’s merger argument moves to dismiss the burglary and assault convictions on the ground that the State necessarily had to prove the lesser included assault and burglary charges to prove the first degree rape charge as charged. 1 RP at 491-92; CP at 29-30. His same conduct motion asks the court to treat the three rape convictions as the same criminal conduct for the purposes of calculating his sentence. 1 RP at 491, 500-02; CP at 30-33. After hearing argument and rebuttal, 1 RP at 492-502, the trial court orally denied all four motions, treating each motion separately. Id. at 502-03.
Nowhere in the record does the trial court state, “it did not believe that an exceptional sentence would be sustained on appeal if the rapes were considered separate and distinct conduct, as the trial court had considered them.” Majority at 357. Nowhere did it “indicate that, should the multiple rapes be considered same criminal conduct on appeal, the same sentence would be imposed, as an exceptional sentence upward, justified by deliberate cruelty and vulnerability of the victim.” Id.
“Not the least misfortune in a prominent falsehood is the fact that tradition is apt to repeat it for truth.” Hosea Ballou, American theologian (1771-1852), cited in George Seldes, The Great Quotations 81 (Carol Publ’g Group, 1993).
Moreover, the State concedes the record does not support the imposition of an exceptional sentence on grounds of victim vulnerability. Majority at 376.