### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 51462

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- II Respondent, UNPUBLISHED OPINION v. JUSTIN AMES, Appellant.
G LASGOW , J.

— Justin Ames was convicted of one count of attem pting 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 (“ f elony t raffic e nhancement ”)

. 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 t raffic

e nhancement from the defendant’s sentence

. FACTS
A Washington State trooper in a marked patrol car pulled over Ames after he fail ed to signal a l ane change and because the re was a discrepancy with the car ’s tabs

. As the trooper approached the car , Ames sped off

. Ames proceeded to dr i ve 70 to 80 miles per ho ur in a 60 miles per hour zone and swerved into oncoming lanes , including while going around corners.
After t he trooper stop ped the car , Ames fled and his passenger remained with the car. Filed Washington State Court of Appeals Division Two June 11, 2019No. 51 462

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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 other s while eluding a police vehicle. Over Am es’s objection,

t he 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 w ould not prejudice Ames ’s defense

. The jury convicted Ames of one count of attempting to elude a police vehicle and found that the f elony t raffic e nhancement 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

. T he State concedes that the sentencing court erred by imposing the
f elony t raffic e nhancement

. W e accept the State’s concession , and remand to the sentencing
court to strike the portion of Ames’s sentence imposed by the e nhancement

. A criminal defendant has a constitutional right to be notified of the charges alleged against him. U.S. C ONST . amend. VI; W ASH

. C ONST . art. I, § 22

. This right requires that charging documents include all essential elements. State v. Vangerpen , 125 W n .2d 782, 787, 888 P.2d 1177 ( 1995). If f acts can increase the penalty for the charged crime , then they are func tionally equivalent to an element

. State v. Recuenco , 163 Wn.2d 428, 440, 180 P.3d 1276 (2008). Thus , w hen 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)

.No. 51 462

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

sentence if the defendant endanger ed other s 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 i nformation , and therefore the extra 3 6 6 day s 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 strik e the portion of Ames’s sentence imposed as a result of the f

elony t raffic e nhancement

. 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.