Opinion Information Sheet

			

State v. Siers (Brian Leroy)

                                         No. 85469-6

       Stephens J. (concurring) -- While I agree with the majority that Brian Siers's 

conviction stands, I disagree with its analysis.  The majority is too quick to seize 

this opportunity to overrule Powell.      In doing so, it overlooks the fact that Powell's

rule does not even apply to this case. 

       In  State v. Powell, five justices agreed that aggravating factors must be 

charged in the information and proved to a jury before an enhanced sentence may be 

imposed.  167 Wn.2d 672, 688, 223 P.3d 493 (2009) (plurality opinion) (Stephens, 

J., concurring).  This requirement stems from the Sixth Amendment, which endows 

criminal defendants with the right "to be informed of the nature and cause of the 

accusation" so they might defend against it.  U.S. Const. amend. VI.  As the 

Supreme Court has recognized, "'an accusation which lacks any particular fact 

which the law makes essential to the punishment is . . . no accusation within the 

requirements of the common law, and it is no accusation in reason.'"  Blakely v. 

Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)  

State v. Siers (Brian Leroy), 85469-6 (Stephens, J. Concurrence)

(quoting 1 Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure § 

87, at 55 (2d ed. 1872)).

       An  "accusation in reason" requires  simply this: any fact essential to the 

punishment is essential to the charge.            The notion that it is permissible for 

prosecutors  to charge only bare-bones crimes in the formal charging document, 

while amassing aggravators elsewhere, is at odds with the guarantee of an 

"accusation" notifying the defendant of its "nature."           To comport with the Sixth 

Amendment, a defendant must be able to discern -- from the charging document 

alone -- his maximum potential sentence.  This is evident from the constitutional text, 

which speaks of a (singular) "accusation."           Cf. Blakely, 542 U.S. at 311 ("Any 
evaluation of Apprendi's[1] 'fairness' to criminal defendants must compare it with 

the regime it replaced, in which a defendant, with no warning in either his 

indictment or plea, would routinely see his maximum potential sentence balloon 

from as little as five years to as much as life imprisonment.").

       It is equally clear that when a defendant's ultimate sentence is in accordance 

with the allegations in the charging document, there is no Sixth Amendment 

violation.   Our decision in Powell explained that aggravating factors must be 

charged "in order to obtain an enhanced sentence."              Powell, 167 Wn.2d at 690 

(Stephens, J., concurring)      (emphasis added);  see also id.          at 694 (Owens, J. 

dissenting)  ("All of these [aggravating] factors expose defendants to increased 

       1 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).

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State v. Siers (Brian Leroy), 85469-6 (Stephens, J. Concurrence)

punishment beyond the statutory maximum.  Thus, the aggravating circumstances 

must be considered essential elements of the crime."); accord Apprendi, 530 U.S. at 

490 ("Other 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." (emphasis added)).

       In short, nothing in Powell  intimates that failing to charge an aggravating 

factor, when that factor is not relied on to impose an enhanced sentence, is 

reversible error.  As Judge Stephen  Dwyer noted in his  dissent,  Powell  is not 

implicated here.  State v. Siers, 158 Wn. App. 686, 706, 244 P.3d 15 (2010) 

(Dwyer, C.J., dissenting).  Siers was convicted and sentenced in accordance with 

the jury's verdict on second degree assault, following the proper charging of that 

crime in the information -- no enhanced sentence was sought or imposed.                    Simply 

put, this case does not present a Powell problem. Because there was no Powell 

error, the court should reverse the Court of Appeals and reinstate the trial court's 

judgment and sentence. 

       Because this case does not implicate Powell's holding, reconsideration of that 

holding is completely unnecessary.  We should not lightly accept invitations to 

overrule precedent.     See State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008). 

Instead, we ought to acknowledge the important "stabilizing effect" of stare decisis. 

In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).  

We have been mindful to respect this doctrine's role to "'"promote the evenhanded, 

predictable, and consistent development of legal principles, foster reliance on 

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State v. Siers (Brian Leroy), 85469-6 (Stephens, J. Concurrence)

judicial decisions, and contribute to the actual and perceived integrity of the judicial 

process."'"  State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011) (quoting

Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997) (quoting  Payne v. 

Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720, reh'g denied, 

501 U.S. 1277, 112 S. Ct. 28, 115 L. Ed. 2d 1110 (1991))).  Lest our law "become 

subject to incautious action or the whims of current holders of judicial office," we 

have required a clear showing that precedent is incorrect and harmful before 

abandoning it.  Stranger Creek, 77 Wn.2d at 653.  Stare decisis counsels courts to 

maintain fidelity to precedent and to reconsider decisions with only the greatest of 

caution and reluctance.

       But here, the majority eagerly discards a decision whose rule is not even 

implicated by the case being reviewed.  In electing to abandon our precedent, the 

majority grasps to find our previous decision "harmful."          It does so by predicting a 

parade of horribles -- a parade which Powell itself ensures will never come to pass.  

       To show harm, the majority concurs with an Alabama intermediate appellate 

court's concern that convictions will be voided if sentencing enhancements are 

considered essential elements.  Majority at 13.  As discussed above, nothing in 

Powell suggests that an underlying conviction is impaired when an aggravating 

circumstance is not charged.  Powell  plainly  holds aggravating factors are the 

functional equivalent of elements that need be charged only "to obtain an enhanced 

sentence." Powell, 167 Wn.2d at 690 (Stephens, J., concurring). 

       The majority also raises the specter of overcautious prosecutors burdening 

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State v. Siers (Brian Leroy), 85469-6 (Stephens, J. Concurrence)

defense counsel by needlessly charging "all possible aggravators" only to drop them 

prior to trial or at sentencing.  Majority at 12.  The majority warns that defense 

counsel will then be forced to overprepare, "wast[ing] valuable judicial resources 

and impos[ing] too heavy a burden on the criminal justice system." Majority at 13.  

       This argument proves too much.  As an initial matter, RCW 9.94A.537(1) 

requires pretrial notice of any aggravating factors.  All that Powell changed was to 

require this notice appear in the information, as opposed to some other document. 

Given that the information can be amended anytime prior to verdict where the 

defendant's substantial rights are not prejudiced, State v. Barnes, 146 Wn.2d 74, 81-

82, 43 P.3d 490 (2002), it is hard to see how the Powell rule would create extra 

work.  Moreover, prosecutors frequently charge defendants with substantive crimes 

that they ultimately dismiss, before or during trial, for strategic reasons.  I daresay 

defense counsel greatly prefer over-preparation to a last-minute scramble.

       In short, the majority exaggerates the "harm" at issue to justify overruling 

Powell, instead of laying bare the fact that a majority of this court has simply 

reconsidered the same arguments heard -- and rejected -- in Powell.  This approach is 

at cross-purposes with the values underlying stare decisis, which is "'the means by 

which we ensure that the law will not merely change erratically, but will develop in 

a principled and intelligible fashion.'"      Citizens United v. Fed. Election Comm'n, 

___ U.S. ___, 130 S. Ct. 876, 920-21, 175 L. Ed. 2d 753 (2010) (quoting Vasquez 

v. Hillery¸ 474 U.S. 254, 265, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)).  

       Erratic changes in the law trivialize our precedent and undermine our 

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State v. Siers (Brian Leroy), 85469-6 (Stephens, J. Concurrence)

institutional integrity.  While I would uphold the rule in Powell on its merits, I am 

presently more concerned with the ease with which the majority unsettles the law. 

Siers's appeal should be resolved without resorting to the Powell rule.  Moreover, I 

am unconvinced that Powell was both incorrect and harmful.  I would affirm Siers's 

conviction on the ground that there is no error implicating Powell and leave our 

precedent intact. 

AUTHOR:
       Justice Debra L. Stephens

WE CONCUR:

       Justice Charles W. Johnson

       Justice Tom Chambers

       Justice Susan Owens

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