                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 11, 2019


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 51462-1-II

                               Respondent,
                                                              UNPUBLISHED OPINION
        v.

 JUSTIN AMES,

                               Appellant.

       GLASGOW, J. — Justin Ames was convicted of one count of attempting to elude a police

vehicle. He received a sentence enhancement based on the jury’s finding that he endangered one

or more persons while committing that crime (“felony traffic enhancement”). Ames appeals his

sentence, arguing that the trial court erred in imposing the felony traffic enhancement because

the State failed to plead the enhancement in the information. The State concedes error. We

accept the State’s concession, and remand for the sentencing court to strike the felony traffic

enhancement from the defendant’s sentence.

                                              FACTS

       A Washington State trooper in a marked patrol car pulled over Ames after he failed to

signal a lane change and because there was a discrepancy with the car’s tabs. As the trooper

approached the car, Ames sped off. Ames proceeded to drive 70 to 80 miles per hour in a 60

miles per hour zone and swerved into oncoming lanes, including while going around corners.

After the trooper stopped the car, Ames fled and his passenger remained with the car.
No. 51462-1-II


       The State charged Ames with one count of attempting to elude a police vehicle. The

information stated that Ames refused to immediately stop his vehicle after a uniformed trooper in

a vehicle equipped with lights and sirens signaled him to stop. The information did not include

allegations that Ames endangered others while eluding a police vehicle. Over Ames’s objection,

the trial court allowed the felony traffic enhancement as a special verdict because of his erratic

driving and because there was a passenger. The superior court reasoned that the enhancement

did not change the elements of the underlying crime, notice was provided via plea negotiations,

and it would not prejudice Ames’s defense. The jury convicted Ames of one count of attempting

to elude a police vehicle and found that the felony traffic enhancement applied.

       Ames appeals the imposition of the felony traffic enhancement.

                                            ANALYSIS

       Although Ames appeals all portions of his judgment and sentence, he assigns error only

to the sentence enhancement. The State concedes that the sentencing court erred by imposing the

felony traffic enhancement. We accept the State’s concession, and remand to the sentencing

court to strike the portion of Ames’s sentence imposed by the enhancement.

       A criminal defendant has a constitutional right to be notified of the charges alleged

against him. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. This right requires that

charging documents include all essential elements. State v. Vangerpen, 125 Wn.2d 782, 787,

888 P.2d 1177 (1995). If facts can increase the penalty for the charged crime, then they are

functionally equivalent to an element. State v. Recuenco, 163 Wn.2d 428, 440, 180 P.3d 1276

(2008). Thus, when the State seeks an enhancement, notice of its intent must be included in the

information. State v. Theroff, 95 Wn.2d 385, 392, 622 P.2d 1240 (1980).




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No. 51462-1-II


        Here, the felony traffic enhancement required the trial court to add 366 days to the

sentence if the defendant endangered others while attempting to elude a police vehicle. RCW

9.94A.533(11). The information did not include notice of the State’s intent to seek a felony

traffic enhancement. And the information did not include allegations that Ames endangered

others while eluding the police vehicle. The State concedes it did not plead the enhancement in

the information, and therefore the extra 366 days imposed by the enhancement should be

removed from the defendant’s sentence. We agree that because the information did not include

notice of the State’s intent to seek the enhancement, it was improper for the court to impose the

felony traffic enhancement.

                                            CONCLUSION

        We remand to the sentencing court to strike the portion of Ames’s sentence imposed as a

result of the felony traffic enhancement.

        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.



                                                      Glasgow, J.
 We concur:



 Worswick, J.




 Maxa, C.J.




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