State v. Siers

• Decision Date: 19 April 2012
• Docket Number: No. 85469–6.,85469–6.
• Citation: 274 P.3d 358
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Brian Leroy SIERS, Respondent.

274 P.3d 358

STATE of Washington, Petitioner,

v.Brian Leroy SIERS, Respondent.

No. 85469–6.

Supreme Court of Washington, En Banc.

Argued Oct. 25, 2011.Decided April 19, 2012.

Brian Martin McDonald, King County Prosecuting Attorney, Prosecuting Atty King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, for Petitioner.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Respondent.

ALEXANDER, J.^*

¶ 1 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 Wash.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 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

¶ 2 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.

¶ 3 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

¶ 4 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 to the jury.

¶ 5 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.

¶ 6 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.

¶ 7 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 Wash.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, 244 P.3d 15. 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, 244 P.3d 15 (Dwyer, C.J., dissenting).

¶ 8 The State then sought review of the Court of Appeals' decision on the issue of 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 Wash.2d 1009, 249 P.3d 1028 (2011).

II

¶ 9 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 Wash.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 Wash.2d 289, 295, 916 P.2d 399 (1996).

III

¶ 10 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 Wash.App. at 702, 244 P.3d 15. The Court of Appeals went on to conclude that the consequence of the 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 Wash.2d at 689–90, 223 P.3d 493 (Stephens, J., concurring); id. at 691–92, 223 P.3d 493 (Owens, J., dissenting).⁴

¶ 11 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 Wash.App. at 705, 244 P.3d 15 (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, 244 P.3d 15.

¶ 12 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.

¶ 13 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 Wash.2d at 689–90, 223 P.3d 493 (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 Wash.App. at 700, 244 P.3d 15. Thus, that court construed the majority rule in Powell to be that “aggravating circumstances are the functional equivalent of essential elements in 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, 244 P.3d 15.⁵

¶ 14 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 Wash.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 ...