Opinion Information Sheet

			

        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 85469-6
                      Petitioner,           )
                                            )
       v.                                   )       En Banc
                                            )
BRIAN LEROY SIERS,                          )
                                            )
                      Respondent.           )
________________________________)                   Filed April 19, 2012

       ALEXANDER, J.* -- We granted the State's motion for discretionary review of a 

decision of the Court of Appeals reversing Brian Siers's conviction on one count of 

second degree assault. That court reversed the conviction because the State did not 

allege an aggravating factor in the charging document. In reaching its conclusion, the 

Court of Appeals relied on a decision of this court on the issue of whether aggravating 

factors must be charged in the information, State v. Powell, 167 Wn.2d 672, 223 P.3d 

493 (2009) (plurality opinion). We take this opportunity to revisit our decision in Powell

on that issue and now hold that an aggravating factor is not the functional equivalent of 

an essential element, and, thus, need not be charged in the information. Because the 

charging document here contained the essential elements of the crimes charged and 

       *Justice Gerry L. Alexander is serving as a justice pro tempore of the Supreme 
Court pursuant to Washington Constitution article IV, section 2(a). 

No. 85469-6

Siers was given notice prior to trial of the State's intent to seek an aggravated 

sentence, Siers's due process rights were not violated. We, therefore, reverse the 

Court of Appeals' decision and reinstate Siers's conviction.

                                                I

       In 2008, Siers stabbed two men outside a restaurant in Seattle. One of the 

victims, Daniel Whitten, was attempting to break up a fight between Siers and another 

person when he was stabbed.

       The State charged Siers in an amended information with two counts of assault in 

the second degree, including a deadly weapon enhancement on each count. Although 

no aggravating circumstances were alleged in the information, Siers's attorney 

indicated that Siers had received notice prior to trial of the State's intent to seek a 
"good Samaritan" aggravator on count II, the charge relating to the assault on Whitten.1

       On the first day of the ensuing jury trial, the State notified the trial court that it 

intended to seek a determination by the jury on the good Samaritan aggravator. Later, 

after the State and Siers had each rested, Siers's attorney objected to the State's 

proposed jury instruction on the good Samaritan aggravator on the ground that the 

aggravator had not been charged in the information. The State responded by moving to 

amend the information. The trial court denied the State's motion on the basis that the 

State had rested its case. The trial court then overruled Siers's objection to the 

proposed instruction on the good Samaritan aggravator and submitted that instruction 

       1Under RCW 9.94A.535(3)(w), a finding that a defendant committed an "offense 
against a victim who was acting as a good Samaritan" is an aggravating factor that can 
support a sentence above the standard range.

                                               2 

No. 85469-6

to the jury.

       The jury found Siers guilty of two counts of second degree assault, with a deadly 

weapon enhancement on each count. The jury also returned a special verdict on count 

II, finding that Siers had committed the assault on Whitten while Whitten was acting as 

a good Samaritan.

       At sentencing, the State did not request an exceptional sentence on count II, 

notwithstanding the jury's finding on the good Samaritan aggravator. The trial court did, 

however, impose a sentence on that count which was at the high end of the standard 

range "in order to give some weight to the jury's finding of a good Samaritan

aggravator." Verbatim Report of Proceedings (June 5, 2009) at 90.

       Siers appealed his conviction to the Court of Appeals, Division One. In a split 

decision that court reversed Siers's conviction on count II. State v. Siers, 158 Wn. App. 
686, 244 P.3d 15 (2010).2 The majority there, relying on Powell, concluded that "the 

State's failure to plead the Good Samaritan aggravator in the information functionally 

undermined the jury's verdict on the substantive crime of second degree assault." Id. at 

702. Judge Dwyer dissented, stating that because a standard range sentence was 

imposed on count II "the trial judge imposed a sentence that was authorized by the 

jury's findings and the information filed. Nothing more was required. There was no 

error." Id. at 705 (Dwyer, C.J., dissenting). 

       The State then sought review of the Court of Appeals' decision on the issue of 

       2The Court of Appeals affirmed the other assault conviction (count I) and the 
deadly weapon enhancement on that count. Siers has not sought review of that 
determination. 

                                               3 

No. 85469-6

whether the Court of Appeals erred in concluding that aggravating circumstances must 

be alleged in the information. We granted the State's petition. State v. Siers, 171 

Wn.2d 1009, 249 P.3d 1028 (2011).

                                               II

       The broad issue before us is whether the Court of Appeals erred in reversing 

Siers's conviction on count II. As we have observed, that decision was based on the 

State's failure to allege an aggravator in the charging document, the Court of Appeals 

determining that, under Powell, the failure to allege the aggravator violated Siers's 

Sixth Amendment right to a jury trial. We review allegations of constitutional violations 

de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P.3d 1055 (2010). Resolution of this 

issue also requires interpretation of a section in Washington's Sentencing Reform Act 

of 1981, chapter 9.94A RCW, pertaining to aggravating circumstances that raise a 

sentence above the standard range. See RCW 9.94A.537. Statutory interpretation is a 

legal question, which we also review de novo on appeal. Stuckey v. Dep't of Labor & 

Indus., 129 Wn.2d 289, 295, 916 P.2d 399 (1996).  

                                               III

       In reversing Siers's conviction on the charge contained in count II of the 

information, the Court of Appeals held that the aggravating factor that the victim was 

acting as a good Samaritan was an essential element of the charge and that the 

information was fatally deficient because it omitted the aggravator. See Siers, 158 Wn. 

App. at 702. The Court of Appeals went on to conclude that the consequence of the 

                                               4 

No. 85469-6

failure to charge the aggravator in the information was dismissal of the underlying assault 

conviction notwithstanding the fact that the underlying crime was properly charged and 

the judgment and sentence reflected the jury's verdict on that charge.3 In reaching its

conclusion, the Court of Appeals took note of the fact that in Powell a majority of this 

court concluded that an aggravating circumstance was the functional equivalent of an 

element of a crime that must be charged in the information. Powell, 167 Wn.2d at 689-
90 (Stephens, J., concurring); id. at 691-92 (Owens, J., dissenting).4

       As we have      observed, Judge Dwyer disagreed with the Court of Appeals' 

decision in the instant case. He reasoned that, even under the majority rule in Powell, 

the good Samaritan aggravator "was not an element of the crime Siers was convicted of 

committing" because Siers was sentenced within the standard range. Siers, 158 Wn. 

App. at 705 (Dwyer, C.J., dissenting). He went on to say that the majority decision 

"bestows a total windfall as a remedy: ordering dismissal of a charge against Brian 

Siers, a man who was constitutionally convicted of assault in the second degree and 

constitutionally sentenced therefor." Id. at 703.

       3The Court of Appeals indicated that "[o]rdinarily, when the information alleges a 
crime but leaves out an essential element, the remedy is reversal of any resulting 
conviction and dismissal without prejudice to the State's right to recharge." Siers, 158 
Wn. App. at 696 (citing State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177 
(1995)). 

       4The lead opinion garnered a majority with six justices voting to affirm the Court 
of Appeals' decision to affirm Powell's conviction. On the issue of whether an 
aggravator must be charged in the information, the lead opinion had four votes 
answering that question in the negative. Five justices, comprised of two justices joining 
a concurrence by Stephens, J., and three justices joining in a dissent by Owens, J.,
made up the majority position on this issue and held that an aggravator is the functional 
equivalent of an essential element that must be charged in the information.

                                               5 

No. 85469-6

       Because the Court of Appeals based its decision on its understanding of our 

decision in Powell, we begin our analysis with a discussion of that case. The question 

we were confronted with in Powell  was whether a trial court was permitted at 

resentencing to empanel a jury to consider aggravating circumstances that had been 

relied upon by the trial judge in imposing the previous sentence. In answering that 

question in the affirmative, we addressed the issue of whether aggravating 

circumstances are the functional equivalent of essential elements that must be charged 

in the information.

       In reaching its decision on the aforementioned issue, a majority of this court 

concluded that in light of the Sixth Amendment principles explicated in 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), aggravated 

sentencing factors are the functional equivalent of essential elements that must be 

charged in an information. See Powell, 167 Wn.2d at 689-90 (Stephens, J., 

concurring), 691-94 (Owens, J., dissenting). The Court of Appeals considered our 

Powell opinion in Siers and indicated that 

       [g]iven the heavy reliance on          Blakely   and the jury trial right in 
       the Powell concurrence, we do not interpret the concurrence as 
       continuing to require the preservation of the underlying conviction when 
       the defendant had to defend at trial against an uncharged factor that was 
       the "functional equivalent" of an element.

Siers, 158 Wn. App. at 700. Thus, that court construed the majority rule in Powell to be

that "aggravating circumstances are the functional equivalent of essential elements in 

                                               6 

No. 85469-6

charging" and, accordingly, "notice, to be                          constitutionally sufficient 

under Blakely's interpretation of the jury trial right, must be given in the formal charging 
document." Id. at 701-02.5

       After reviewing our decision in Powell in light of the facts before us in the 

present case, we are of the view that the decision a majority of this court reached in

Powell on the issue of whether aggravating factors must be charged in the information 

is incorrect. It is also harmful because it has a detrimental effect on the public interest. 

See State v. Barber, 170 Wn.2d 854, 864, 248 P.3d 494 (2011) (stating that in order for 

a decision to be overruled, it must be shown to be both "incorrect and harmful"). We, 

therefore, overrule this court's decision on that issue and adopt the position advanced 

by the lead opinion in  Powell  to the effect that, so long as a defendant receives 

constitutionally adequate notice of the essential elements of a charge, "the absence of 

an allegation of aggravating circumstances in the information [does] not violate [the 

defendant's] rights under article I, section 22 of the Washington Constitution, the Sixth 

Amendment to the United States Constitution, or due process." Powell, 167 Wn.2d at 

687.

       5Although it was a fractured decision on the question of whether an aggravator 
must be charged in the information, this court unanimously agreed that "the State is 
required to include '[a]ll essential elements of a crime, statutory or otherwise, . . . in a 
charging document.'" Powell, 167 Wn.2d at 682 (alterations in original) (quoting State 
v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991)); see also id. at 689 (Stephens, J., 
concurring); id.  at 695 (Owens, J., dissenting). "'The primary goal of the "essential 
elements" rule is to give notice to an accused of the nature of the crime that he or she 
must be prepared to defend against.'" Id. at 682 (quoting Kjorsvik, 117 Wn.2d at 101). 
"Essential elements consist of the statutory elements of the charged crime and a 
description of the defendant's conduct that supports every statutory element of the 
offense." Id. (citing Kjorsvik, 117 Wn.2d at 98).

                                               7 

No. 85469-6

       In reaching our decision, we are mindful that the state and federal constitutions 

require that a defendant receive adequate notice of the nature and cause of the 

accusation in order to allow him or her to prepare a defense in response to charges 

that he or she committed a crime. Indeed, article I, section 22 of Washington's 

constitution says that "[i]n criminal prosecutions the accused shall have the right . . . to 

demand the nature and cause of the accusation against him." The Sixth Amendment to 

the United States Constitution similarly provides that "[i]n all criminal prosecutions, the 

accused shall . . . be informed of the nature and cause of the accusation." The 

protection afforded by each of these constitutional provisions is the same. State v. 

Hopper, 118 Wn.2d 151, 156, 822 P.2d 775 (1992). Accordingly, to allow the defendant 

to "mount an adequate defense" against an aggravating circumstance listed in RCW 

9.94A.535(3), the defendant must receive notice prior to the proceeding in which the 

State seeks to prove those circumstances to a jury. State v. Schaffer, 120 Wn.2d 616, 

620, 845 P.2d 281 (1993).

       Consistent with the above-mentioned constitutional requirements, the 

Sentencing Reform Act of 1981 requires that the State provide notice that it will seek an 

exceptional sentence aggravating circumstance, but it does not mandate the manner in 

which that notice is to be given. See  RCW            9.94A.537(1). Here Siers's attorney 

acknowledged that the State provided notice to Siers prior to trial that it intended to 

prove an aggravator that could result in an exceptional sentence. In our judgment, this 

prior notice satisfied state and federal constitutional notice requirements. 

                                               8 

No. 85469-6

       As the lead opinion in Powell explained, Apprendi's requirement of a jury trial on 

aggravating factors does not necessarily mean that aggravating factors must be 

pleaded in the information. In Apprendi, the United States Supreme Court held that 

under the due process clause of the Fourteenth Amendment and the right to a jury trial 

under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. 

In Powell, the lead opinion stated the following with regard to Apprendi:

              The requirement that a defendant receive notice of aggravating 
       circumstances is similar to the requirement that a defendant be given 
       notice of all the elements of the offense charged. This similarity does not, 
       in our judgment, mean that the absence of an allegation of aggravating 
       circumstances in the information violates constitutional protections. The 
       aggravating circumstances under RCW 9.94A.535(3) are not elements of 
       an offense. Therefore, they do not fall within the rule that all the elements 
       of a crime must be set forth in the charging instrument pursuant to article 
       I, section 22. Rather, notice of aggravating circumstances is required as a 
       matter of due process. Due process is satisfied when the defendant 
       receives sufficient notice from the State to prepare a defense against the 
       aggravating circumstances that the State will seek to prove in order to 
       support an exceptional sentence.

Powell, 167 Wn.2d at 682. The lead opinion went on to state that in Apprendi  the 

United States Supreme Court "did not say that aggravating circumstances are essential 

elements of a crime that must be pleaded in the information under state law." Id. at 684. 

Rather, the United States Supreme Court in Apprendi "noted that it was not determining 

that issue since the defendant in Apprendi  had not argued that the sentence 

enhancement at issue had to be included in the charging document." Id.  (citing 

                                               9 

No. 85469-6

Apprendi, 530 U.S. at 477 n.3). 

       Significantly, however, the United States Supreme Court in Apprendi noted "that 

the Fifth Amendment grand jury clause is not applicable to the states under the 

Fourteenth Amendment." Id. (relying on Apprendi, 530 U.S. at 477 n.3). As the lead 

opinion observed in Powell, the statement in Apprendi that the Fifth Amendment grand 

jury clause is not applicable to the states is "critical because the primary statement 

in Apprendi relied on by Powell is taken from Jones [v. United States], 526 U.S. 227, 

[119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)]." Id. In Jones, the United States Supreme 

Court held that for the federal prosecution of a federal crime, facts that increase the 

penalty beyond the statutory maximum must be included in the indictment pursuant to 

the Fifth Amendment. Id. (citing Jones, 526 U.S. 227). Notably, the grand jury clause of 

the Fifth Amendment has been held to not apply to the states via the  Fourteenth 

Amendment. See Hurtado v. California, 110 U.S. 516, 535, 4 S. Ct. 111, 28 L. Ed. 232 

(1884). Thus, as the lead opinion in Powell stated, the federal indictment requirements 

relating to aggravating circumstances do  not  "extend  to local prosecutions under 

Washington law when aggravating circumstances are alleged." Powell, 167 Wn.2d at 

684.

       Significantly, a majority of state  jurisdictions that have considered this issue 

have applied rationale similar  to that set forth in the lead opinion in Powell, those 

jurisdictions  holding that aggravating factors are not constitutionally required to be 
pleaded in the charging document.6 For example, the Minnesota Supreme Court has 

       6See 5 Wayne R. LaFave et al., Criminal Procedure § 19.3(a) at 255 n.42 (3d 

                                              10 

No. 85469-6

considered this issue and determined that a defendant is "not denied due process by the 

state's failure to include in the indictment the factor used to enhance his sentence." 

State v. Kendell, 723 N.W.2d 597, 612 (Minn. 2006). That court explained:

              Kendall argues that the Supreme Court's equation of aggravating 
       sentencing factors with elements of an offense mandates that such factors 
       must be included in the indictment. See Jones[, 526 U.S. at 232]. But the 
       Court's conclusion that the sentencing factors operate as the "functional 
       equivalent" of elements for purposes of the Sixth Amendment jury trial 
       right does not dictate that such factors are elements for purposes of a 
       Minnesota indictment. See McKaney v. Foreman                [ex rel. County of 
       Maricopa], 209 Ariz. 268, 100 P.3d 18, 22 (2004). The right to a jury trial 
       serves a different purpose than the 'nature and cause' requirement and 
       the due process notice requirement; the former addresses the adequacy 
       of proof of the offense charged and of the aggravating sentencing factors, 
       while the latter simply provides a defendant notice of the charges. Id. We 
       therefore conclude that aggravating sentencing factors need not be 
       charged in an indictment in Minnesota. This conclusion is in line with the 
       vast majority of states that have considered this issue. See Evans, 389 
       Md. 456, 886 A.2d at 573-74 (2005); State v. Hunt, 357 N.C. 257, 582 
       S.E.2d 593, 604 (2003).

Id. at 611. In our view, the proper course for this court is to embrace the rationale 

adopted in a majority of similarly situated jurisdictions that do not require aggravators to 

be charged in the information.

       Additionally, to the extent the majority in Powell relied on Blakely, that reliance

ed. 2007) (citing Poole v. State, 846 So. 2d 370 (Ala. Crim. App. 2001); State v. Nichols, 
201 Ariz. 234, 33 P.3d 1172 (2001); Terrell v. State,  276 Ga. 34, 572 S.E.2d 595 
(2002); State v. Lovelace, 140 Idaho 53, 90 P.3d 278 (2003); People v. Thurow, 203 Ill. 
2d 352, 786 N.E.2d 1019 (2003); State v. Glass, 136 S.W.3d 496 (Mo. 2004); Simmons 
v. State, 869 So. 2d 995 (Miss. 2004); State v. Badoni, 133 N.M. 257, 62 P.3d 348 
(2002); People v. Walters, 196 Misc. 2d 78, 763 N.Y.S.2d 715 (2003); State v. Hunt, 
357 N.C. 257, 582 S.E.2d 593 (2003); Primeaux v. State, 2004 OK CR 16, 88 P.3d 893 
(Okla. Crim. App. 2004); State v. Holton, 126 S.W.3d 845 (Tenn. 2004); Evans v. State, 
389 Md. 456, 886 A.2d 562 (2005)); see also People v. Robinson, 232 Ill. 2d 98, 902 
N.E.2d 622, 327 Ill. Dec. 501 (2008); but see State v. Jess, 117 Haw. 381, 184 P.3d 
133 (2008); State v. Simuel, 357 S.C. 378, 593 S.E.2d 178 (2004). 

                                              11 

No. 85469-6

was misplaced. We say that because like the situation in Apprendi, the defendant in 

Blakely did not challenge the sufficiency of the charging document. Thus, the United 

States Supreme Court did not address the question of whether an aggravating 

circumstance must be pleaded in the charging document. See Blakely, 542 U.S. at 301; 

Apprendi, 530 U.S. at 477 n.3. Several other jurisdictions have rejected the argument 

that  Blakely  requires that sentencing enhancements be alleged in the charging 

document. See State v. Dague, 143 P.3d 988, 1007 (Alaska Ct. App. 2006) ("the due 

process clause of the Fourteenth Amendment does not require sentencing factors to be 

included in the indictment -- even when, under Apprendi  and  Blakely, the Sixth and 

Fourteenth Amendments would require the states to give defendants a jury trial on 

those same factors"); Kendell, 723 N.W.2d at 611-12 (concluding that aggravating 

sentencing factors need not be charged in an indictment because the "right to a jury 

trial serves a different purpose than the 'nature and cause' requirement and the due 

process notice requirement"); State v. Caudle, 182 N.C. App. 171, 641 S.E.2d 351 

(2007) (holding that aggravating factors do not need to be charged in the indictment); 

State v. Heilman, 339 Or. 661, 125 P.3d 728 (2005) (holding that the State was not 

required to plead the elements of the enhancement in the indictment). 

       The United States Constitution does not require states to allege aggravating 

circumstances in local prosecutions. Neither does the Washington Constitution require 

aggravators to be alleged in an information. In our judgment, Siers received 

constitutionally sufficient notice of the State's intent to seek a good Samaritan

                                              12 

No. 85469-6

aggravator, thus his due process rights were not violated. To the extent the majority in 

the Powell decision concluded otherwise, we hold that the decision was incorrect.

       Additionally, as we indicated above, the majority decision in Powell on the issue 

before us now is harmful. We believe that decision undermines the policy behind state 

and federal constitutional requirements that the State provide the defendant with 

adequate notice of the nature and cause of the accusation. We say this because under 

that decision a prudent prosecutor would allege all possible aggravators and then 

decide sometime prior to trial, or even at sentencing, which aggravating factors to rely 

on. There are upward of 30 aggravators under the current Sentencing Reform Act of 

1981. The notice requirement exists as a means to allow the defendant to "mount an 

adequate defense" in response to charges that he committed a crime. Schaffer, 120 

Wn.2d at 620. If, in an abundance of caution, prosecutors charge                   all possible 

aggravators in the information in each case, defense counsel will be ethically obligated 

to prepare a defense against each of the aggravating factors that the State alleges, 

even if the State ultimately does not seek an exceptional sentence. As the Alabama 

Court of Criminal Appeals wisely pointed out in its consideration of this issue, to require 

an information to include any applicable enhancements would "elevate the fact that 

made the enhancement applicable to the exalted status of an 'essential element' of the 

crime charged and would invite challenges to the validity of the underlying convictions 

in every court in this state." Poole v. State, 846 So. 2d 370, 386 (Ala. Crim. App. 2001).  

The Alabama court went on to say that this would allow "[a]ny defendant who has ever 

                                              13 

No. 85469-6

been sentenced under these statutory provisions [to] argue that his or her conviction 

was void because a 'material or essential element' of the offense was not included in 

the indictment." Id. at 387. We agree with the Alabama court that the implications of 

requiring aggravators to be pleaded in the charging document are potentially 

"enormous."  Id.    We are convinced that constitutional guarantees of notice afford 

adequate protection to defendants. In our view, treating aggravators as the functional 

equivalent of essential elements that must be pleaded in the charging document is 

harmful to the public interest because it wastes valuable judicial resources and 

imposes too heavy a burden on the criminal justice system. 

                                               IV

       In conclusion, we overrule the decision reached by a majority of justices in 

Powell to the effect that aggravated sentencing factors are the functional equivalent of 

essential elements that must be charged in an information.  We do so because we 

believe that decision was incorrect and harmful.  We                hold, therefore,   that an 

aggravating factor is not the functional equivalent of an essential element and need not 

be charged in the information. Here the charging document contained the essential 

elements of the crimes charged and the State gave Siers notice prior to trial of its intent 

to seek an aggravated sentence. Consequently, Siers's due process rights were not 

violated. We, therefore, reverse the Court of Appeals' decision and reinstate Siers's 

conviction on count II.

                                              14 

No. 85469-6

AUTHOR:
        Gerry L. Alexander, Justice Pro 
        Tem.

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

                                                         Justice Charles K. Wiggins

        Justice Mary E. Fairhurst

                                              15