                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 25, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 48384-0-II

                                Petitioner,

         v.

    DARCUS DEWAYNE ALLEN,                                     UNPUBLISHED OPINION

                                Respondent,

        MELNICK, J. — At issue in this case is whether the trial court properly dismissed the State’s

allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds.

The State charged Darcus DeWayne Allen with four counts of premeditated murder in the first

degree and alleged two statutory aggravating circumstances under RCW 10.95.020 (aggravating

circumstances).1 It also filed a special notice seeking the death penalty. The jury unanimously

found that the State had not proved the aggravating circumstances beyond a reasonable doubt, but

found Allen guilty of the murder charges.




1
  The State also filed aggravating circumstances under former RCW 9.94A.535 (2010), which, if
found by a jury beyond a reasonable doubt, would allow the trial court to impose an exceptional
sentence. Those aggravating circumstances are not at issue in this discretionary review.
48384-0-II


       After the Supreme Court reversed Allen’s convictions, State v. Allen, 182 Wn.2d 364, 341

P.3d 268 (2015), the State decided not to refile the special death notice; however, it did file the

same aggravating circumstances it had previously filed and which the jury found had not been

proven beyond a reasonable doubt.2

       The trial court granted Allen’s motion to dismiss the aggravating circumstances and

subsequently denied the State’s motion for reconsideration. We granted the State’s motion for

discretionary review and affirm the trial court.

                                              FACTS

       The State charged Allen with four counts of premeditated murder in the first degree with

aggravating circumstances. A jury found Allen guilty of the murder charges, but found that the

State had not proven the aggravating circumstances beyond a reasonable doubt.

       The trial court individually polled each juror. It asked each juror, “Is this your verdict?”

and “Is it the verdict of the jury?” Clerk’s Papers (CP) at 148. Every juror answered in the

affirmative. The trial court imposed an exceptional sentence above the standard range for the

crime of premeditated murder in the first degree. Allen appealed. His convictions were reversed

based on prosecutorial misconduct. Allen, 182 Wn.2d at 387.

       On remand, the State did not seek the death penalty, but it did reallege the same aggravating

circumstances that the jury had previously found had not been proved beyond a reasonable doubt.




2
  If a jury found that the State had proved either of the aggravating circumstances beyond a
reasonable doubt, the defendant would be sentenced “to life imprisonment without possibility of
release or parole.” RCW 10.95.030. This sentence exceeds the statutory punishment for
premeditated murder in the first degree. RCW 9A.32.030, .040.


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       Allen filed a motion to dismiss the aggravating circumstances based on double jeopardy.

The trial court, relying primarily on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186

L. Ed. 2d 314 (2013), concluded that the aggravating circumstances constituted elements of the

crime and that Alleyne altered the prior line of cases in Washington as to aggravating

circumstances. The court concluded that because the prior jury found that the State had not proved

the aggravating circumstances beyond a reasonable doubt, double jeopardy barred the State from

retrying them. The court entered an order granting Allen’s motion to dismiss the aggravating

factors. The trial court then denied the State’s motion for reconsideration.

       We granted the State’s motion for discretionary review as to whether or not the prohibition

against double jeopardy barred the State from retrying Allen on the aggravating circumstances.

Because the jury’s unanimous finding on the aggravating circumstances is an acquittal on them,

we conclude the State cannot retry Allen on them. We affirm the trial court.

                                           ANALYSIS3

       A number of separate issues are presented in this case. Although they are intertwined, each

must be analyzed separately. The ultimate issue we must decide is whether the jury’s affirmative

finding that the State had not proved the aggravating circumstances beyond a reasonable doubt is

an acquittal and double jeopardy bars a retrial on them. We conclude it was an acquittal on the

aggravating circumstances and double jeopardy bars a retrial on them.




3
  Allen additionally argues that collateral estoppel applies to bar the State from relitigating the
aggravating factors under RCW 10.95.020. However, this argument was not raised below and we
did not accept review of it; therefore, we will not address it.


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I.      AGGRAVATING CIRCUMSTANCES ARE NOT ELEMENTS

        The State argues that the trial court erred by treating the aggravating circumstances in RCW

10.95.020 as elements of the charged crime because it is well-settled Washington law that

aggravating circumstances relate to sentencing and are not elements of the offense. We agree with

the State that the aggravating circumstances are not elements of the crime of premeditated murder

in the first degree with aggravating circumstances. However, because they are the functional

equivalent of elements, we disagree with the State that the trial court erred by treating them as

such.

        Chapter 10.95 RCW sets forth the procedures and penalties for premeditated murder in the

first degree with aggravating circumstances. If the State charges a defendant with premeditated

murder in the first degree, it can also file one or more statutory aggravating circumstances. State

v. Thomas, 166 Wn.2d 380, 387, 208 P.3d 1107, 1111 (2009). If aggravating factors are filed, a

jury4 determines whether the State has proved both the substantive crime and the aggravating

circumstance(s). RCW 10.95.050. Only if the jury finds that the State has proven both the

substantive crime and the aggravating circumstance(s) beyond a reasonable doubt at the guilt phase

will a special sentencing hearing occur. RCW 10.95.050. At the sentencing hearing, the jury will

determine whether there are sufficient mitigating circumstances to merit leniency. Depending on

the answer, a defendant is sentenced either to death or to life imprisonment without the possibility

of release or parole. RCW 10.95.030, .080. If the jury does not find aggravating factors, the

defendant is sentenced for the crime of premeditated murder in the first degree.




4
  We are aware that under RCW 10.95.050(2), a jury may be waived at the court’s discretion with
the consent of the defendant and the State. We use the term jury and not fact finder for simplicity.


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       Premeditated murder in the first degree with aggravating circumstances is not a crime in

and of itself. The crime is premeditated murder in the first degree, which is accompanied by

statutory aggravators.5 State v. Roberts, 142 Wn.2d 471, 501, 14 P.3d 713 (2000).

       Aggravating circumstances are “not elements of the crime, but they are ‘aggravation of

penalty’ factors.” State v. Brett, 126 Wn.2d 136, 154, 892 P.2d 29 (1995) (quoting State v. Kincaid,

103 Wn.2d 304, 307, 692 P.2d 823 (1985)). They are sentence enhancers used to “‘increase the

statutory maximum sentence from life with the possibility of parole to life without the possibility

of parole or the death penalty.’” State v. Thomas, 166 Wn.2d 380, 387-88, 208 P.3d 1107 (2009)

(quoting State v. Yates, 161 Wn.2d 714, 758, 168 P.3d 359 (2007)). In Yates, the court rejected

the argument that murder in the first degree was a lesser included offense of murder in the first

degree with aggravating circumstances. 161 Wn.2d at 761.

II.    AGGRAVATING CIRCUMSTANCES ARE THE FUNCTIONAL EQUIVALENT OF ELEMENTS

       Our courts have consistently ruled that aggravating circumstances enhancing premeditated

murder in the first degree are not elements. Kincaid, 103 Wn.2d at 307-10. But the United States

Supreme Court has held in numerous cases that factors which raise the penalty for a crime, other

than a fact of conviction, are the functional equivalent of elements. In other words, they are akin

to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt. Apprendi

v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). None of these cases

changed the statutory process utilized in chapter 10.95 RCW. None of these cases involved double

jeopardy challenges. But they are necessary to the analysis of why the jury’s factual finding on

the aggravating circumstances bars a retrial on them.



5
  Some of the confusion about this issue may arise because the crime is statutorily called
“aggravated first degree murder.” RCW 10.95.020


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48384-0-II


       In Apprendi, the Court held that any fact that increases the statutory maximum penalty for

the charged crime must be proved to a jury beyond a reasonable doubt. 530 U.S. at 489. The

Court recognized that this type of sentence enhancement “is the functional equivalent of an

element” because it increased the sentence beyond the statutory maximum. Apprendi, 530 U.S. at

494 n.19.

       Apprendi is based on the Sixth Amendment right to a jury trial and the Fourteenth

Amendment right to due process. Apprendi acknowledged the “constitutionally novel and elusive

distinction between ‘elements’ and ‘sentencing factors.’” 530 U.S. at 494. It recognized that “the

relevant inquiry is one not of form, but of effect.” Apprendi, 530 U.S. at 494. Alleyne reaffirmed

these rules. 133 S. Ct. at 2156.

       In Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Court

held that aggravating factors necessary to impose the death penalty must be submitted to a jury.

In quoting Apprendi, 530 U.S. at 494 n.19, the Court held that because Arizona’s enumerated

aggravating factors operate as “‘the functional equivalent of an element of a greater offense,’” a

jury must decide them. Ring, 536 U.S. at 609.

       The Court has also applied the general rule that a jury must hear facts that increase the

sentence, other than prior convictions, in various situations, including

       plea bargains, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d
       403 (2004), sentencing guidelines, United States v. Booker, 543 U.S. 220, 125 S.
       Ct. 738, 160 L.Ed.2d 621 (2005), criminal fines, Southern Union Co. v. United
       States, 567 U.S. ___, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), mandatory
       minimums, Alleyne, [133 S. Ct. at 2166] and, in Ring, 536 U.S. 584, 122 S. Ct.
       2428, 153 L.Ed.2d 556, capital punishment.

Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 621, 193 L. Ed. 2d 504 (2016).




                                                 6
48384-0-II


       Washington courts have recognized these changes in a variety of contexts, but in particular

in a capital case. In State v. McEnroe, the court held that an aggravating circumstance in a death

penalty case becomes the functional equivalent of an element of the crime. 181 Wn.2d. 375, 382,

333 P.3d 402 (2014).

       Based on the foregoing, we conclude that Washington’s statutory sentencing scheme under

chapter 10.95 RCW remains unchanged. The United States Supreme Court was cognizant of the

fact that different sentencing schemes exist in different jurisdictions. None of these cases has

overruled or altered our prior jurisprudence in this area. Premeditated murder in the first degree

remains a separate crime from premeditated murder in the first degree with aggravating

circumstances. The aggravating circumstances are the functional equivalent of elements which

must be submitted to the jury and must be proven by the State beyond a reasonable doubt.

III.   DOUBLE JEOPARDY

       The State additionally argues that Washington courts have held that double jeopardy

protections are not applicable to noncapital sentencing proceedings. Because those cases are

factually distinguished from this case, we disagree with this broad assertion. Instead, we conclude

that double jeopardy prohibits retrial on aggravating circumstances that the jury determined the

State had not proved beyond a reasonable doubt.

       “The double jeopardy clauses of the Fifth Amendment and [article 1, section 9 of the

Washington Constitution] protect a defendant against multiple punishments for the same offense.”

State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Double jeopardy involves questions of

law which we review de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007). “‘The

double jeopardy doctrine protects a criminal defendant from being (1) prosecuted a second time

for the same offense after acquittal, (2) prosecuted a second time for the same offense after



                                                7
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conviction, and (3) punished multiple times for the same offense.’” State v. Fuller, 185 Wn.2d 30,

33-34, 367 P.3d 1057 (2016) (quoting State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006)).

Here, we are dealing with the first prong and deciding whether a unanimous jury verdict finding

that the State had not proved aggravated circumstances, the functional equivalent of elements,

beyond a reasonable doubt is an acquittal of those aggravating circumstances. A brief survey of

case law sheds light on the answer.

       In Bullington v. Missouri, a jury found Bullington guilty of capital murder in the guilt

phase, but returned a sentence of less than death in the penalty phase. 451 U.S. 430, 101 S. Ct.

185, 68 L. Ed. 2d 270 (1981). After a reversal of the conviction, the State once again sought the

death penalty. Bullington, 451 U.S. at 436. The Court held that double jeopardy barred a retrial

on the death penalty because the jury’s sentence in the first case meant it had acquitted the

defendant of the factors necessary to impose death. Bullington, 451 U.S. at 445-46. The Court

based its holding on the fact that the penalty phase required trial-like procedures. Bullington, 451

U.S. at 445-46. Here the jury’s finding meant that it had acquitted Allen of the circumstances

necessary to impose a sentence of either death or life without the possibility of parole or early

release.

       In Monge v. California, the Court explained its earlier decision in Bullington:

       When the State announced its intention to seek the death penalty again, the
       defendant alleged a double jeopardy violation. We determined that the first jury’s
       deliberations bore the “hallmarks of the trial on guilt or innocence,” because the
       jury was presented with a choice between two alternatives together with standards
       to guide their decision, the prosecution undertook the burden of establishing facts
       beyond a reasonable doubt, and the evidence was introduced in a separate
       proceeding that formally resembled a trial. In light of the jury’s binary
       determination and the heightened procedural protections, we found the proceeding
       distinct from traditional sentencing, in which “it is impossible to conclude that a
       sentence less than the statutory maximum “constitute[s] a decision to the effect that
       the government has failed to prove its case.”



                                                 8
48384-0-II


524 U.S. 721, 730-31, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998) (quoting Bullington, 451 U.S. at

439, 443) (internal case citations omitted) (internal quotations omitted).

       We are mindful that in Bullington, the jury found the defendant guilty of capital murder,

but here, the jury did not find Allen guilty of capital murder. It found him guilty of premeditated

murder in the first degree. As a result, Allen was not eligible for a sentence of death or life without

parole or early release. The jury’s finding had all the hallmarks of a trial.

       In Arizona v. Rumsey, the jury convicted the defendant of armed robbery and murder in the

first degree. 467 U.S. 203, 205, 104 S. Ct. 230, 81 L. Ed. 2d 164 (1984). The trial judge found no

presence of aggravating circumstances and sentenced the defendant to life in prison for a minimum

of 25 years. Rumsey, 467 U.S. at 205-06. The Arizona Supreme Court set aside the sentence and

remanded the case for resentencing. Rumsey, 467 U.S. at 207. Ultimately, the United States

Supreme Court held that the trial court’s findings of no aggravating circumstances constituted an

acquittal. Rumsey, 467 U.S. at 212. The defendant could not be sentenced to death. Rumsey, 467

U.S. at 212. The facts Rumsey are similar to the ones we are presented with here.

       Additionally, in Monge, the Court refused to find a double jeopardy violation where, the

state court on appeal, held that insufficient evidence supported the prior conviction upon which

the trial court relied in sentencing the defendant under California’s three strikes law. 524 U.S. at

731. In holding that the case could be remanded for a new sentencing hearing where the state

could offer evidence on the prior conviction, the Court distinguished this case from one involving

the death penalty:

       The penalty phase of a capital trial is undertaken to assess the gravity of a particular
       offense and to determine whether it warrants the ultimate punishment; it is in many
       respects a continuation of the trial on guilt or innocence of capital murder. “It is of
       vital importance” that the decisions made in that context “be, and appear to be,
       based on reason rather than caprice or emotion.”



                                                  9
48384-0-II


Monge, 524 U.S. at 731-32 (quoting Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L.

Ed. 2d 393 (1977)).

       Monge’s charges were litigated as a noncapital case. Monge, 524 U.S. 721. They involved

California’s three strikes law. In contrast, Allen’s jury determined that the State had not proved

the aggravating circumstances beyond a reasonable doubt in a capital case where it sought the

death penalty. The fact the State now seeks to make it a noncapital case cannot erase this fact.

Because of Washington’s statutory scheme under chapter 10.95 RCW, the penalty or sentencing

hearing only comes into play if the jury finds the defendant guilty of premeditated murder in the

first degree with aggravating circumstances. It mandates that a jury first must determine whether

the State has proved the functional equivalent of the elements beyond a reasonable doubt.

       In Sattazahn v. Pennsylvania, the jury found the defendant guilty of murder in the guilt

phase of the trial. 537 U.S. 101, 103, 123 S. Ct. 732, 736, 154 L. Ed. 2d 588 (2003). The case

then proceeded to the penalty phase where the state alleged one aggravating factor and the

defendant presented mitigating evidence. Sattazahn, 537 U.S. at 103-04. After the jury was

hopelessly deadlocked, the trial court dismissed the jury and sentenced the defendant to life

imprisonment per the existing law. Sattazahn, 537 U.S. at 104-05. The defendant appealed and

the state appellate court reversed his murder conviction. Sattazahn, 537 U.S. at 105. On remand,

the State again filed a death penalty notice. Sattazahn, 537 U.S. at 105. It alleged two aggravating

factors. Sattazahn, 537 U.S. at 105. The trial court denied the defendant’s motion to disallow the

State from filing the aggravating factors. Sattazahn, 537 U.S. at 105. The Court held that no

double jeopardy violation occurred because:




                                                10
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       [T]he touchstone for double-jeopardy protection in capital-sentencing proceedings
       is whether there has been an “acquittal.” Petitioner here cannot establish that the
       jury or the court “acquitted” him during his first capital-sentencing proceeding. As
       to the jury: The verdict form returned by the foreman stated that the jury deadlocked
       9-to-3 on whether to impose the death penalty; it made no findings with respect to
       the alleged aggravating circumstance. That result-or more appropriately, that non-
       result-cannot fairly be called an acquittal “based on findings sufficient to establish
       legal entitlement to the life sentence.”

Sattazahn, 537 U.S. at 109 (quoting Rumsey, 467 U.S. at 211).

       Sattazahn is factually distinguishable from our case. There, the jury did not unanimously

make a finding as to the aggravating circumstance. In our case, Allen’s jury made that finding.

We also note that based on the jury’s “finding” in Sattazahn, the matter proceeded to the penalty

or sentencing phase. Sattazahn, 537 U.S. at 105. In our case, Allen’s jury never entered the

sentencing phase; it found that the State had not proved the aggravating factors beyond a

reasonable doubt. Therefore, under Washington’s scheme, no sentencing phase occurred because

Allen’s jury acquitted him of the aggravating factors; rather, Allen was sentenced for the crime of

premeditated murder in the first degree.

       The Sattazahn Court reasoned in dicta that,

       In the post-Ring world, the Double Jeopardy Clause can, and must, apply to some
       capital-sentencing proceedings consistent with the text of the Fifth Amendment. If
       a jury unanimously concludes that a State has failed to meet its burden of proving
       the existence of one or more aggravating circumstances, double-jeopardy
       protections attach to that ‘acquittal’ on the offense of ‘murder plus aggravating
       circumstance(s).[6]

Sattazahn, 537 U.S. at 112. In Allen’s case, the jury did “acquit” him of the aggravating factors.




6
  The fact that the Court also opined that this situation would arise when the crime of murder
differed from the crime of aggravated murder is not relevant to this discussion.


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       These cases lead us to the conclusion that once a jury made the finding in Allen’s death

penalty case that the State had not proved aggravating circumstances beyond a reasonable doubt,

it acquitted him of those aggravating circumstances.

       Our decision today does not conflict with State v. Benn, where a retrial occurred based on

an aggravated circumstance for which the jury had not returned a verdict. 161 Wn.2d 256, 165

P.3d 1232 (2007). In the first trial, the jury left the answer blank. The jury made no finding as to

the aggravating circumstance. Benn, 161 Wn.2d at 264. It was not an implied acquittal. Benn,

161 Wn.2d at 264. “A jury’s failure to find the existence of an aggravating factor does not

constitute an “acquittal” of that factor for double jeopardy purposes.” Benn, 161 Wn2d at 264.

Here Allen’s jury did not fail to find the existence of an aggravating circumstance. It found no

existence of an aggravated circumstance. Therefore, double jeopardy prohibits the retrial of the

aggravating factors for which the jury found the State had not proved beyond a reasonable doubt.

       Although no Washington case is directly on point, Oregon has addressed the issue

indirectly. It observed that, “[U]nder Apprendi, a jury determination of a sentencing enhancement

factor is now part and parcel of a jury trial and we now must view that determination similarly to

a jury’s decision to acquit or convict.” Oregon v. Sawatzky, 339 Or. 689, 696, 125 P.3d 722 (2005)

(resentencing hearing on “enhanced” sentence before jury after judge initially made

determination). We agree with the court in Sawatzky.

                                         CONCLUSION

       In the capital case against Allen, the jury affirmatively and unanimously found that the

State had not proved beyond a reasonable doubt any aggravating circumstances.                These

aggravating circumstances are the functional equivalent of elements of the crime. The jury’s




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finding is an acquittal of the aggravating circumstances for double jeopardy purposes. The State

cannot retry Allen on the aggravating circumstances for which a jury found a lack of proof. We

affirm the trial court.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                            Melnick, J.

We concur:




        Johanson, P.J.




        Sutton, J.




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