                                                        This opinion Was filed for record
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                  DEC 1 3 2018
  '^IXAA hyim-f,(Q                                           SUSAN L. CARLSON
             CHtEFJUSTKB                                   SUPREME COURT CLERK




       IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                              No. 95454-2
                                Petitioner,

                     V.                                      EN BANC

DARCUS DEWAYNE ALLEN^
                                                              Filed:         DEC 1 3 2018
                                Respondent.


         YU, J. — This case asks whether the aggravating circumstances listed in

ROW 10.95.020 are "elements" ofthe offense of aggravated first degree murder

for purposes of the Fifth Amendment's double jeopardy clause. U.S. Const.

amend. V. Respondent Dorcus Dewayne Allen was convicted of four counts of

first degree murder but acquitted oftwo ROW 10.95.020 aggravating

circumstances on each count. We later vacated Allen's convictions and remanded

for a new trial. State v. Allen, 182 Wn.2d 364, 387, 341 P.3d 268(2015){Allen I).


           The case caption spells the defendant's first name as Darcus while the defendant's
briefing spells his first name as Dorcus. There has been no motion to amend the case caption,
but we use the spelling from the defendant's briefing in the body of this opinion.
State V. Allen, No. 95454-2


The question before us now is whether Allen can be tried a second time on the

RCW 10.95.020 aggravating circumstances. The trial court ruled that he cannot,

and the Court of Appeals agreed. We hold that retrial on the aggravating

circumstances is barred by double jeopardy principles and thus affirm.'

                  Factual Background and Procedural History


       In November 2009, Maurice Clemmons shot and killed four Lakewood

police officers. Allen drove Clemmons to and from the crime scene. The factual

details are recounted in Allen I and need not be repeated here. Id. at 369-70.

       Allen was charged as an accomplice with four counts of aggravated murder

in the first degree pursuant to RCW 10.95.020, which provides that "[a] person is

guilty of aggravated first degree murder, a class A felony, if he or she commits first

degree murder as defined by RCW 9A.32.030(l)(a). . . and one or more of[14

listed] aggravating circumstances exist." The information charged Allen with two

aggravating circumstances for each count:

       (1)that the victim was a law enforcement officer who was performing
       [his or her] official duties at the time of the act resulting in death, and
       the victim was known or reasonably should have been laiown by the
       defendant to be such at the time of the killing; and/or (2)that there
       was more than one victim and the murders were part of a common
       scheme or plan or the result of a single act ofthe defendant; contrary
       to RCW 10.95.020(1) and 10.95.020(10).


      'Allen also argues that collateral estoppel provides an alternative basis for holding that he
cannot be retried on the aggravating circumstances. We decline to consider this argument
because it was not raised below. RAP 2.5(a).
State V. Allen, No. 95454-2


Clerk's Papers(CP)at 1-3.^ If the jury found that either one of the aggravating

circumstances existed, the minimum penalty for each first degree murder

conviction would increase from a term of years to mandatory life imprisonment

without the possibility of release or parole.^ Former RCW 10.95.030(1)(1993).

        At the close of trial, the jury was instructed to separately consider each of

the four counts of murder in the first degree and to return a verdict of guilty or not

guilty on each count. The jury was also given special verdict forms related to each

count and was instructed to fill these forms out only if it found Allen guilty of the

related murder counts. The special verdict forms read as follows:

             We,the jury, having found the defendant guilty of premeditated
       Murder in the First Degree on verdict form [I-IV], return a special
       verdict by answering as follows as to Count [TIV]:

       QUESTION #1: Has the State proven the existence of the following
       aggravating circumstance beyond a reasonable doubt?

                 The victim was a law enforcement officer who was performing
                 his or her official duties at the time of the act resulting in death
                 and the victim was known or reasonably should have been
                 known by the defendant to be such at the time of the killing.

                 ANSWER#1:                  (Write "yes" or "no." "Yes" requires
                 unanimous agreement)




       ^ On each count, Allen was also charged with a firearm enhancement and an additional
aggravating circumstance pursuant to RCW 9.94A.535(3)(v). These additional aggravators are
not before us.
       ^ Aggravated first degree murder pursuant to RCW 10.95.020 was also punishable by
death, but the State did not seek the death penalty. Former RCW 10.95.030(2)(1993).
State V. Allen, No. 95454-2


       QUESTION #2: Has the State proven the existence of the following
       aggravating circumstance beyond a reasonable doubt?

              There was more than one person murdered and the murders
              were part of a common scheme or plan or the result of a single
              act of the person.

              ANSWER#2:                (Write "yes" or "no." "Yes" requires
              unanimous agreement)

CP at 35-38. The presiding juror wrote "no" in the blank next to each answer and

circled "no." Id. After reading each verdict and special verdict form into the

record, the trial court polled the jury individually, asking each juror,"Is this your

verdict?" and "Is it the verdict of the jury?" Id. at 148-50. Each juror answered

"yes" to each question. Id. Allen was sentenced to 420 years in prison.

       On review, this court vacated Allen's convictions due to prosecutorial

misconduct and remanded for a new trial. Allen I, 182 Wn.2d at 387. On remand,

the State filed the same charges as in the first trial, including the same ROW

10.95.020 aggravating circumstances. The trial court granted Allen's motion to

dismiss the aggravating circumstances on double jeopardy grounds and denied the

State's motion for reconsideration.


       The Court of Appeals affirmed on discretionary interlocutory review,

holding that the "State cannot retry Allen on the aggravating circumstances for

which a jury found a lack of proof." State v. Allen, 1 Wn. App. 2d 774, 787, 407
State V. Allen, No. 95454-2


P.3d 1166 (2017). We granted the State's petition for review. State v. Allen, 190

Wn.2d 1007, 414 P.3d 575 (2018).

                                        Issues


       A.     Did the jury in Allen's first trial unanimously acquit him of both

RCW 10.95.020 aggravating circumstances?

       B.     If Allen was acquitted on the aggravating circumstances, does the

prohibition on double jeopardy bar a retrial on those aggravating circumstances?

                                       Analysis


A.     Any ambiguity as to whether the jury unanimously acquitted Allen of the
       two aggravating circumstances was cured when the judge polled the jury

       Both the United States and Washington Constitutions prohibit successive

prosecutions for an offense on which the defendant has been acquitted. U.S.

Const, amend. V; Wash. Const, art. I, § 9; Bravo-Fernandez v. United States,

U-S. , 137 S. Ct. 352, 357, 196 L. Ed. 2d 242(2016); State v. Guzman Nunez,

174 Wn.2d 707, 717 n.4, 285 P.3d 21 (2012). Before we can determine whether

Allen may be retried on the aggravating circumstances, we must determine

whether he was acquitted ofthem at his first trial. The trial court and Court of

Appeals determined that he was. We agree.

       At the time of Allen's trial, our precedent held that if a jury did not

unanimously find that the State had proved an RCW 10.95.020 aggravating

circumstance, the defendant was acquitted of that aggravating circumstance. State
State V. Allen, No. 95454-2


V. Goldberg, 149 Wn.2d 888, 894, 72 P.3d 1083 (2003). This "nonunanimity rule"

was later overruled in Guzman Nunez, which held that acquittal of aggravating

circumstances requires jury unanimity. 174 Wn.2d at 718-19. But Guzman Nunez

was decided after Allen's trial was completed. Therefore, in accordance with then-

controlling precedent, the special verdict forms used in Allen's trial required jury

unanimity only in order to answer "yes" on the aggravating circumstances. The

special verdict forms did not require jury unanimity in order to answer "no." We

must determine if the jury was nonetheless unanimous in finding that the State

failed to prove the RCW 10.95.020 aggravating circumstances.

       Viewed in isolation, the "no" answer on the special verdict forms could be

interpreted in two ways:(a)the jury unanimously answered "no" or (b)the jury

answered "no" because they could not unanimously answer "yes." However, when

polled by the trial court, each juror affirmed that the "no" verdicts were his or her

own verdicts and the verdicts ofthe jury. Such individual jury polling is generally

evidence ofjury unanimity. State v. Lamar, 180 Wn.2d 576, 587, 327 P.3d 46

(2014).

       The State contends that the jurors might have interpreted both questions as

asking the same thing:"Do you unanimously agree that this was not a unanimous
State V, Allen, No. 95454-2


'yes'"?'^ We disagree. It is unlikely that an ordinary juror would be confused in

this way, and there is no indication of such confusion in the record. Thus, we '

affirm that the jury unanimously acquitted Allen of both aggravating circumstances

at his first trial.


B.     The prohibition on double jeopardy bars retrial of the RCW 10.95.020
       aggravating circumstances

       Because Allen was unanimously acquitted of the RCW 10.95.020

aggravating circumstances at his first trial, we must now determine whether the

constitutional prohibition on double jeopardy bars a retrial on these aggravating

circumstances. Outside of the death penalty context, the double jeopardy clause

applies only to offenses, not sentences. Bullington v. Missouri, 451 U.S. 430, 438,

101 S. Ct. 1852, 68 L. Ed. 2d 270(1981). Therefore, the critical question is

whether the RCW 10.95.020 aggravating circumstances are "elements" of the

"offense" of aggravated first degree murder in a noncapital case for double

jeopardy purposes.

       We have previously held that RCW 10.95.020 aggravating circumstances

"are 'aggravation of penalty' factors which enhance the penalty for the offense,

and are not elements of a crime as such." State v. Kincaid, 103 Wn.2d 304, 307,




         Wash. Supreme Court oral argument, State v. Allen, No. 95454-2(Oct. 18, 2018), at 12
min., 41 sec., video recording by TVW,Washington State's Public Affairs Network,
http://www.tvw.org.
State V. Allen, No. 95454-2


692 P.2d 823 (1985). As a result, we have previously stated that "double jeopardy

does not apply to aggravating circumstances outside the death penalty context."

Guzman Nunez, 174 Wn.2d at 717; see also State v. Kelley, 168 Wn.2d 72, 80-82,

226 P.3d 773 (2010). However, because "the legal underpinnings of our precedent

have changed" so significantly, we are compelled to revisit the issue in light of

subsequent decisions of the United States Supreme Court. W.G. Clark Constr. Co.

V. Pac. Nw. Reg'l Council ofCarpenters, 180 Wn.2d 54, 66, 322 P.3d 1207(2014).

       The United States Supreme Court has clarified that for Sixth Amendment

purposes,"any fact that increases the mandatory minimum is an 'element' that

must be submitted to the jury." Alleyne v. United States, 570 U.S. 99, 103, 133

S. Ct. 2151, 186 L. Ed. 2d 314(2013)(overruling//arm v. United States, 536 U.S.

545, 122 S. Ct. 2406, 153 L. Ed. 2d 524(2002)). A plurality of the Court has

further indicated that there is "no principled reason to distinguish, in this context,

between what constitutes an offense for purposes of the Sixth Amendment's jury-

trial guarantee and what constitutes an 'offence' for purposes of the Fifth

Amendment's Double Jeopardy Clause." Sattazahn v. Pennsylvania, 537 U.S.

101, 111, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003).

      In light ofthis guidance and as explained below, we find no logical or legal

basis for holding that the elements of a crime for purposes of the Sixth

Amendment's right to trial by jury are different from the elements of a crime for
State V. Allen, No. 95454-2


purposes of the Fifth Amendment's double jeopardy clause. For both purposes, a

fact other than proof of a prior conviction that increases the mandatory minimum

sentence is an element of the offense. Accordingly, we hold that RCW 10.95,020

aggravating circumstances, which increase the mandatory minimum penalty for

first degree murder, are elements of the offense of aggravated first degree murder

for purposes of the double jeopardy clause. Therefore, Allen cannot be retried on

the aggravating circumstances.

       1.     The original distinction between "sentencing factors" and "elements"
              for double jeopardy purposes paralleled the distinction between
              sentencing factors and elements for jury trial purposes

        "A criminal 'offence' is composed of'elements,' which are factual

components that must be proved by the state beyond a reasonable doubt and

submitted (if the defendant so desires) to a jury." Monge v. California, 524 U.S.

721, 737, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998)(Scalia, J., dissenting). Under

traditional principles of Anglo-American criminal law, the elements of an offense

were defined in the same way for all constitutional purposes, including both the

Fifth Amendment's prohibition on double jeopardy and the Sixth Amendment's

right to a jury trial. Id. at 737-38. However, the question of how to define the

elements of an offense has generated a number of divided opinions from the United

States Supreme Court over the last several decades. Alleyne, 570 U.S. at 105.
State V. Allen, No. 95454-2


"The principal source of disagreement is the constitutional status of a special sort

offact known as a 'sentencing factor.'" Id.

       The term "sentencing factor" was first used by the United States Supreme

Court in McMillan v. Pennsylvania, All U.S. 79, 86, 106 S. Ct. 2411, 91 L. Ed. 2d

67(1986),"to refer to facts that are not found by a jury but that can still increase

the defendant's punishment." Alleyne, 570 U.S. at 105. The Court held that state

legislatures may define facts as sentencing factors, rather than elements, and

further may provide that sentencing factors can be proved to a judge by a

preponderance of the evidence, rather than being proved to a jury beyond a

reasonable doubt. McMillan, All U.S. at 86, 91. In doing so, however, the Court

did not "budge from the position that(1) constitutional limits exist to States'

authority to define away facts necessary to constitute a criminal offense, and (2)

that a state scheme that keeps from the jury facts that 'expos[e][defendants] to

greater or additional punishment,' may raise serious constitutional concern."

Apprendi v. New Jersey, 530 U.S. 466,486, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000)(alterations in original)(citations omitted)(quoting McMillan, All U.S. at

85-88).

       The difference between "elements" and "sentencing factors" was first set

forth in McMillan, a case concerning the right to a jury trial. Whether a particular

fact is treated as an element or as a sentencing factor is also critical for double



                                           10
State V. Allen, No. 95454-2


jeopardy purposes because "[t]he Court generally has concluded . . . that the

Double Jeopardy Clause imposes no absolute prohibition against the imposition of

a harsher sentence at retrial after a defendant has succeeded in having his original

conviction set aside." Bullington, 451 U.S. at 438. Thus, unlike elements of an

offense, sentencing factors (and sentences themselves) are generally not subject to

the Fifth Amendment's double jeopardy clause.

       In Bullington, the United States Supreme Court "established a 'narrow

exception' to the general rule" for the sentencing phase of capital murder trials.

Mange, 524 U.S. at 730. The Court reasoned that unlike a typical sentencing

hearing, the sentencing phase of a capital murder trial had "the hallmarks of the

trial on guilt or innocence." Bullington, 451 U.S. at 439. That is, rather than

evidence being presented informally to a judge who had discretion to select a

sentence from a wide range authorized by statute, there was an adversarial process

that presented evidence to a jury, which was charged with making a binary choice

based on proof beyond a reasonable doubt. Id. at 438.

       Later, in Mange,the United States Supreme Court declined to apply

Bullington to proof of a prior conviction in a noncapital case, even if similar

sentencing procedures were used. 524 U.S. at 724-25. The Court determined that

double jeopardy protections did not apply in that context because unlike in a

capital case, the trial-like sentencing procedures used to prove prior convictions at



                                          11
State V. Allen, No. 95454-2


issue in Monge were a matter of"legislative grace, not constitutional command."

Id. at 734. Thus, whether a fact could be treated as a sentencing factor for double

jeopardy purposes was directly linked to the question of whether that fact was

constitutionally required to be treated as an element for jury trial purposes.

       It remains true that proof of a prior conviction does not require trial-like

procedures or proof beyond a reasonable doubt. Alleyne, 570 U.S. at 111 n.1.

However,that is not the case for aggravating circumstances like those at issue here.

As discussed below, full jury trial procedures for RCW 10.95.020 aggravating

circumstances are no longer a matter of legislative grace. They are now a

constitutional command.

       2.     Constitutional limits on "sentencing factors" for Sixth Amendment
              purposes have been refined over time

       As noted above, state legislatures' authority to distinguish sentencing factors

from elements for Sixth Amendment purposes is subject to constitutional

limitations. McMillan, 477 U.S. at 86, 91. The United States Supreme Court first

addressed what those limitations are in Apprendi. 530 U.S. 466. The Court has

since clarified and refined its holdings, ultimately reaching the conclusion that a

fact other than a prior conviction "that, by law, increases the penalty for a crime is

an 'element' that must be submitted to the jury and found beyond a reasonable

doubt." Alleyne, 570 U.S. at 103. Because an understanding ofthe way in which

Sixth Amendment constitutional law has developed is necessary for our double

                                          12
State V. Allen, No. 95454-2


jeopardy analysis, we briefly discuss the line of cases leading up to the Supreme

Court's decision in Alleyne.

       The first such case, Apprendi, concerned New Jersey's hate crimes statute,

which increased the maximum sentence for a crime if a judge found by a

preponderance of the evidence that the crime was committed '"with a purpose to

intimidate an individual or group of individuals because of race, color, gender,

handicap, religion, sexual orientation or ethnicity.'" 530 U.S. at 469(quoting

former N.J. Stat. Ann. § 2C:44-3(e)(1995)). Analyzing the common law history

of which facts must be proved to a jury, the United States Supreme Court

determined that there was no "principled basis" for treating a fact that increased the

maximum authorized term of imprisonment differently from the elements

constituting the base offense. Id. at 476. In so ruling, the Court reasoned that

"when the term 'sentence enhancement' is used to describe an increase beyond the

maximum authorized statutory sentence, it is the functional equivalent of an

element of a greater offense than the one covered by the jury's guilty verdict." Id.

at 494 n.l9(emphasis added). Therefore, it must be submitted to a jury and proved

beyond a reasonable doubt.

       The line of cases that followed Apprendi applied its rule in a number of

other contexts. See Ring v. Arizona 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d

556(2002)(capital punishment); Blakely v. Washington, 542 U.S. 296, 124 S. Ct.



                                         13
State V. Allen, No. 95454-2


2531, 159 L. Ed. 2d 403 (2004)(state sentencing guidelines); United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)(federal

sentencing guidelines); S. Union Co. v. United States, 567 U.S. 343, 132 S. Ct.

2344, 183 L. Ed. 2d 318 (2012)(criminal fines). However, state legislatures

retained the authority to classify facts as sentencing factors if they increased only

the minimum penalty, rather than the maximum penalty. Harris, 536 U.S. at 550.

Such sentencing factors could still be found by a judge by a preponderance ofthe

evidence. Id.


       This changed with the Supreme Court's holding in Alleyne, which overruled

Harris and held that "there is no basis in principle or logic to distinguish facts that

raise the maximum from those that increase the minimum." 570 U.S. at 116.

Alleyne also did away with ApprendVs "functional equivalent" language. "The

essential point is that the aggravating fact produced a higher range, which, in turn,

conclusively indicates that the fact is an element of a distinct and aggravated

crime. It must, therefore, be submitted to the jury and found beyond a reasonable

doubt." Id. at 115-16 (emphasis added).

       Thus, a "sentencing factor" is defined as a fact that can increase the sentence

for a crime but does not need to be proved to a jury beyond a reasonable doubt,

such as proof of a prior conviction. Over time, the United States Supreme Court

has substantially limited the types offacts that may be designated as sentencing


                                          14
State V. Allen, No. 95454-2


factors for purposes of the Sixth Amendment's jury-trial right. In accordance with

Alleyne, the legislature's designation of a fact as a sentencing factor no longer

controls. Now, a fact other than proof of a prior conviction that increases the

minimum penalty authorized by law must be treated as an element, not a

sentencing factor, for Sixth Amendment purposes. It is clear that the RCW

10.95.020 aggravating circumstances are elements for Sixth Amendment purposes

because they are not limited to proof of a prior conviction and, by law, they

increase the minimum penalty for first degree murder.

       3.     A plurality of the United States Supreme Court has stated that
              elements are defined in the same way for purposes ofthe jury-trial
              right and the double jeopardy clause

       As discussed above, the United States Supreme Court held in Motage that

double jeopardy principles do not apply to sentencing factors, such as proof of

prior convictions, outside the context of capital murder cases. 524 U.S. at 734.

However, Monge was decided before Apprendi and subsequent cases in which the

constitutional limits of which facts may be designated as sentencing factors for

Sixth Amendment purposes were clearly set forth. The Court has not yet issued a

definitive holding as to whether these constitutional limits also apply to the

distinction between sentencing factors and elements for purposes of the Fifth

Amendment's prohibition on double jeopardy, but a plurality of the Court has

indicated that they do.



                                          15
State V. Allen, No. 95454-2


       In Sattazahn v. Pennsylvania, the United States Supreme Court looked at the

double jeopardy implications for sentencing factors after Apprendi, but it did not

ultimately resolve the question. 537 U.S. 101. The defendant in Sattazahn was

convicted of first degree murder, but the sentencing jury hung on the existence of

an aggravating circumstance that would have authorized the death penalty. Id. at

103-05. The trial court therefore entered a life sentence in accordance with

Pennsylvania law. Id. at 105. The conviction was overturned, and on remand, the

Commonwealth again sought the death penalty on the basis of the same aggravator,

as well as a second one introduced at the new trial. Id. The question before the

Supreme Court was whether the Commonwealth was barred from retrying the

aggravator or from seeking the death penalty on double jeopardy grounds. Id.

       The majority held that a hung jury was not an acquittal on the aggravating

circumstance, and therefore jeopardy had not terminated on the fact. Id. at 109.

Consequently, it could be realleged at the second trial as a basis for imposing the

death penalty. Id. at 116.

       Three of the five justices in the majority opined that if the jury had acquitted

Sattazahn of the aggravating circumstance, double jeopardy principles would have

barred retrial of that fact.^ Id. at 112 (plurality opinion). The plurality stated,"We


       ^ The four dissenting justices would have held that jeopardy terminated when the trial
court entered the life sentence and therefore did not discuss how aggravating circumstances



                                               16
State V. Allen, No. 95454-2


can think of no principled reason to distinguish, in this context, between what

constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee

and what constitutes an 'offence' for purposes of the Fifth Amendment's Double

Jeopardy Clause." /d at 111. In light ofthe case history discussed above, we

agree.


         Bullington and Monge clearly indicate that whether a fact is an element for

Fifth Amendment purposes depends on whether that fact is an element for Sixth

Amendment purposes, that is, whether the constitution requires that the fact be

proved to a jury beyond a reasonable doubt. Subsequent cases have clarified the

test for determining what constitutes an element for Sixth Amendment purposes,

but the United States Supreme Court has not indicated any intent to untether the

definitions of an element for Fifth and Sixth Amendment purposes. The plurality

in Sattazahn makes it clear that the Court is unlikely to do so, and we can find no

case in our own jurisprudence that draws the distinction between elements for Fifth

and Sixth Amendment purposes in a logically sound and intellectually honest way.

       4.      Our case law after Sattazahn and Alleyne has not addressed the
               precise issue before us

       Our case law has long viewed aggravating circumstances as sentencing

factors not subject to double jeopardy, but "[w]e have yet to fully weave Apprendi


should be treated for double jeopardy purposes. Sattazahn, 537 U.S. at 118 (Ginsburg, J.,
dissenting).


                                              17
State V. Allen, No. 95454-2


into the fabric of our case law." State v. McEnroe, 181 Wn.2d 375, 389, 333 P.3d

402(2014). This is equally true of Alleyne. In a handful of cases, we have opined

that the Apprendi line of cases had no effect on how we view aggravating

circumstances for double jeopardy purposes. However, in each case the facts were

distinguishable or the double jeopardy discussion was not central to our holding,

and none of these cases had the benefit of Alleyne.

       For instance, in a case similar to Sattazahn, we held that a jury non-finding

on an aggravating circumstance did not constitute an acquittal and, thus, that

double jeopardy did not prevent retrial ofthe aggravating circumstance. State v.

Benn, 161 Wn.2d 256, 264, 165 P.3d 1232(2007). Because Allen was actually

acquitted of the aggravating circumstances at his first trial, this case is clearly

distinguishable.

       In other opinions, we have indicated that the Apprendi line of cases does not

affect the definition of an element for double jeopardy purposes, but doing so was

not necessary to our decisions. For instance, in State v. Eggleston, the defendant

was acquitted of first degree murder, but the jury returned a special verdict form on

an aggravating circumstance relating to the first degree murder charge anyway.

164 Wn.2d 61, 66-67, 187 P.3d 233 (2008). We held that the special verdict form

did not preclude consideration of the same aggravating circumstance at a later

resentencing, on either double jeopardy or collateral estoppel grounds, because the



                                           18
State V. Allen, No. 95454-2


jury's answer to the special verdict was unnecessary, irrelevant, and in violation of

the court's instructions, so we declined to consider it. Id. at 73. Thus, although we

indicated that double jeopardy did not apply because the death penalty was not at

issue, there was in fact no acquittal of the aggravating circumstance that would

have implicated double jeopardy principles.

       In State v. Kelley, we considered whether imposition of a firearm

enhancement where use of a firearm was an element of the underlying offense

violated the double jeopardy prohibition on multiple punishments for the same

offense, 168 Wn.2d at 74, We summarily dismissed that argument, holding that

"[ijfthe legislature intends to impose multiple punishments, their imposition does

not violate the double jeopardy clause," Id. at 77, We then discussed a "not

entirely clear" argument by Kelley that "because sentencing factors are treated as

'elements[]' [of] the 'offense'" under the Apprendi line of cases, the firearm

enhancement was "an 'element' of a greater offense and therefore creates

unintended, redundant punishment," Id. at 80-81, We concluded that since "none

of[the Apprendi cases] concern the double jeopardy clause," their holdings did not

apply, and we assigned "no weight" to the plurality in Sattazahn. Id. at 82,

However,this discussion was unnecessary to our holding, and Kelley did not

concern the same legal question presented here, Kelley claims he was wrongfully

subjected to multiple punishments, while Allen faces multiple prosecutions.



                                         19
State V. Allen, No. 95454-2




       Finally, as noted above in the discussion of the special verdict forms used in

Allen's trial, State v. Guzman Nunez held that juiy unanimity is required for

acquittal of an aggravating circumstance. 174 Wn.2d at 719. We rejected our

previous nonunanimity rule from Goldberg as incorrect because it was

unsupported by authority and conflicted with our precedent. Id. at 713-14. We

further held that the nonunanimity rule was harmful because it was potentially

confusing and could allow juries to acquit on aggravating circumstances based on

"an unwillingness to fully explore the reasons for any disagreement," rather than

full and thorough deliberations. M at 718. Citing Mange and Eggleston, we also

stated that the nonunanimity rule did not serve its purported purposes ofjudicial

economy and finality because double jeopardy does not preclude retrial on

aggravating circumstances outside the death penalty context. Id. at 717-18.

However, as discussed above, Eggleston did not require us to reach that issue.

Guzman Nunez did not purport to reexamine the scope of Mange's holding in light

of the Apprendi line of cases, and further did not have the benefit ofAlleyne, which

was decided a year later.

      In sum, although our cases have previously indicated that RCW 10.95.020

aggravating circumstances are not elements for purposes of the Fifth Amendment's

double jeopardy clause, the legal underpinnings for those statements have changed


                                         20
State V. Allen, No. 95454-2


dramatically. We have not fully considered the impact of these changes until

today.

       5.      The trial court properly dismissed the RCW 10.95.020 aggravating
               circumstances on double jeopardy grounds

         Applying the principles from Alleyne to the facts before us, it is clear that the

trial court properly dismissed the RCW 10.95.020 aggravating circumstances on

double jeopardy grounds. Neither aggravating circumstance was limited to proof

of a prior conviction, and either one would have increased the minimum sentence

from a term of years to one of life imprisonment without the possibility of release

or parole. As such, the constitution requires the aggravating circumstances to be

proved to a jury beyond a reasonable doubt. The aggravating circumstances

therefore no longer meet the definition of"sentencing factors" for Sixth

Amendment purposes. They are elements.

       Like the Sattazahn plurality, we can discern no principled basis for reaching

a different conclusion in the double jeopardy context. We therefore hold that

RCW 10.95.020 aggravating circumstances are elements of the offense of

aggravated first degree murder for double jeopardy purposes. The jury acquitted

Allen of both aggravating circumstances on all four counts in his first trial.

Jeopardy therefore terminated on those circumstances, and the State is

constitutionally barred from retrying them.




                                            21
State V. Allen, No. 95454-2


                                   Conclusion


       The special verdict forms combined with the polling of the jury show that

the first jury unanimously acquitted Allen of the RCW 10.95.020 aggravating

circumstances. The trial court properly dismissed these aggravating circumstances

at the second trial on double jeopardy grounds, and we therefore affirm the Court

of Appeals and remand for further proceedings consistent with this opinion.




                                        22
State V. Allen, No. 95454-2




WE CONCUR:




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