¶25 (concurring) — I agree with the majority’s decisions to deny the State’s motion to dismiss, to address the personal restraint petitions (PRPs) on the merits, and to deny the PRPs. I write separately only because I disagree with the majority’s treatment of the petitioners’ ex post facto clause arguments.
Gordon McCloud, J.¶26 The petitioners argued that applying the new Miller8 fix legislation to them would violate the ex post facto clause. Laws of 2014, ch. 130. They based this argument largely on State v. Furman, 122 Wn.2d 440, 858 P.2d 1092 (1993), but Furman was not an ex post facto clause case. Instead, in Furman, this court held that the death penalty was not statutorily authorized for juveniles under Washington law — and since the statutes did not allow the death penalty at the time of the Furman decision, the statutes did not allow the death penalty to be imposed on Furman for the murder he committed several years earlier, while still a juvenile. Id. at 456-58.
*595¶27 The petitioners argue, by analogy, that the mandatory life without parole sentence imposed on them was similarly improper because since the constitution does not allow that punishment to be imposed on them now, the constitution did not allow that punishment to be imposed on them several years ago. The petitioners’ final conclusion is that for ex post facto purposes, we must therefore compare the penalty authorized by the Miller fix statutes to a penalty of 20 years (a penalty clearly less harsh than that authorized by the Miller fix statutes), not to the unconstitutional penalty of mandatory life without parole.
¶28 The majority credits this argument but distinguishes Furman on its facts. Majority at 591-93.
¶29 I disagree with the way the majority distinguishes Furman’s facts, but I think that the petitioners’ ex post facto argument fails for a different reason. The reason is that this court rejected the same argument about the relevant point of comparison, for ex post facto purposes, in a recent prior controlling decision: State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007).
¶30 In Pillatos, the defendant/appellant argued in part that the Blakely fix9 was an unconstitutional ex post facto law for basically the same reason that McNeill and Rice argue that the Miller fix is an unconstitutional ex post facto law. In Pillatos, two defendants10 asserted that the Blakely fix authorized exceptional sentences that were unconstitu*596tional — and thus, according to those defendants, did not exist — when those defendants committed their crimes. Id. at 474-76. This court rejected that argument:
A defendant is subject to the penalty in place the day the crime was committed. After the fact, the State may not increase the punishment. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 861, 100 P.3d 801 (2004) (citing Stogner v. California, 539 U.S. 607, 612, 123 S. Ct. 2446, 156 L. Ed. 2d 544 (2003)). But as we have said when considering other amendments to the SRA [Sentencing Reform Act of 1981, ch. 9.94A RCW], the key is whether the defendant had notice of the punishment at the time of the crime, not whether in some metaphysical sense, a constitutional statute existed at the time of the crime.
Id. at 475. Thus, in an ex post facto analysis, we ask whether a new law imposes a penalty greater than the one that was authorized by statute when the defendant’s offense occurred. We do not consider whether the statutes in place at the time of the offense were later found to be unconstitutional.
¶31 Pillatos may well have been wrongly decided. But it was decided just seven years ago, and it rejected the ex post facto argument that the petitioners make here. No one has argued that Pillatos should be overruled; no one has given us a reason to distinguish it.
¶32 I think the majority errs in ignoring this prior controlling precedent. I think that this error leads the majority to make some unwarranted assertions, for example, “ [i] n this case, unlike in Furman, there was no reason to hold the penalty statute was unconstitutional at the time of the petitioners’ crimes.” Majority at 593. Actually, the statute at issue in this case requiring mandatory life without parole was unconstitutional at the time of sentencing and is unconstitutional now; that is why these petitioners are aggrieved, that is why their PRPs are not *597subject to dismissal, and that is why they are being decided on the merits.
¶33 But the Miller fix statute addresses this constitutional problem. This court unanimously agrees that that statute, with its guaranty of a full resentencing for juveniles sentenced before its enactment, majority at 588-89 (citing Laws of 2014, ch. 130, § 11(1)), is sufficient to protect the petitioners’ constitutional interests. I therefore respectfully concur.
Stephens, J., concurs with Gordon McCloud, J.
Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
The Blakely fix is statutes that our legislature enacted to address the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 313, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which held a jury must find beyond a reasonable doubt any fact supporting the imposition of an exceptional sentence. Laws of 2005, ch. 68, § 4(2). The Blakely fix statutes required the State to notify the defendant before trial or entry of a guilty plea that the State intended to seek a sentence above the standard range, to state the aggravating circumstances it intended to allege, and to prove the existence of those circumstances beyond a reasonable doubt. Id. § 4(1), (2).
Pillatos consolidated four defendants’ cases; two of those defendants had already pleaded guilty when the legislature enacted the Blakely fix, and this court held that the new legislation was, by its terms, inapplicable to those defendants. 159 Wn.2d at 470. The remaining two defendants had yet to plead or be tried; they *596argued that applying the Blakely fix to their cases would violate ex post facto clause protections. Id. at 475.